Rajasthan High Court - Jaipur
The Divisional Manager, Rsrtc vs Ghanshyam Acharya And Ors on 14 September, 2012
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No.2763/2001 The Divisional Manager, RSRTC versus Ghanshyam Acharya & anr 14.9.2012 HON'BLE MR. JUSTICE MN BHANDARI Mr VS Yadav for petitioner Mr Ashok Sharma for respondent-workman BY THE COURT:
By this writ petition challenge is made to the order dated 1.2.2001 passed by the Industrial Tribunal, Jaipur.
By the aforesaid order, approval application moved by the petitioner Corporation under section 33(2) (b) of the Industrial Disputes Act, 1947 has been dismissed. This is precisely on the ground that one month's salary has not been paid to the workman.
Learned counsel for the petitioner Corporation submits that the amount of one month's salary was sent through money order, receipt of which was produced before the tribunal yet the fact aforesaid was not accepted on the ground that whether money order was received by the respondent workman has not been proved apart from the proof that it was not returned back to the Corporation. It is submitted that as per provisions of section 33(2)(b) of the Act, an employee is to be given one month's wages prior to or simultaneous to the dismissal. It is not a case of the workman that money order was not received by him thus once the fact was proved regarding sending the amount through money order, the burden was shifted on the workman to indicate that it was not received by him.
Learned counsel for respondent workman, on the other hand, submits that as per the provisions, one month's wages should have been paid to the workman before making an application for approval of order of dismissal. In the aforesaid background, there is no illegality in the impugned order thus it may be upheld.
I have considered rival submissions of the parties and perused the record.
Perusal of para 10 of the impugned order reveals that one Kailash Chand was produced in evidence, who stated that on 31.1.1991, two money orders in the sum of Rs.1000/- and 586/- having receipt No.4205 and 4204 respectively were sent to the workman. Learned tribunal took a view that whether money orders were received by the workman or he refused to accept the same, has not been proved. Accordingly, it was held that there is nothing to prove that money order was received by the employee concerned.
I find that the aforesaid finding is not in satisfaction to the requirement of section 33(2) (b) of the Act of 1947. When money orders were sent and postal documents were produced along with the required details, then unless proved otherwise, it goes in satisfaction of payment. It was for the workman to prove that he has not received the amount so sent through money orders but there is no such finding. Accordingly, it cannot be said that one month's wages required to be paid to the workman was not given to him despite of sending it through money orders i.e. by an independent postal agency.
In the light of the aforesaid, writ petition preferred by the Corporation is allowed. Impugned order dated 1.2.2001 passed by the tribunal is set aside and the matter is remanded back to the tribunal to decide other issues related to the approval application which may be regarding fairness of enquiry and prima facie proof of charge, if issues have been raised to that effect by the respondent workman. Since the matter is old, the tribunal is directed to decide the same at the earliest.
Parties are directed to appear before the tribunal on 3.10.2012.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-J