JUDGMENT 1. 1. This special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the order dated August 1, 1997 of the learned single Judge in S.B. Civil Writ Petition No. 578/1997. 2. Briefly stated the facts of the case are that the petitioner appellant (hereinafter shall be referred to as the 'appellant workman') was appointed as Driver in the service of the respondent No. 2 the Rajasthan State Road Transport Corporation (hereinafter shall be referred to as 'the respondent Corporation'). On January 18, 1989 the appellant workman was on duty as driver of Bus No. RNP-1432 of the respondent Corporation to take it from Bhilwara to Udaipur. In the said Bus T.V. and V.C.R. were there. On arrival of the said Bus at Udaipur the appellant workman parked it at the bus-stand of the respondent Corporation. He accompanied when the Conductor went for taking tea leaving the Bus without watch and ward. On their arrival back after taking tea the appellant workman did not find the V.C.R. in the Bus. On this the appellant workman and the Conductor lodged First Information Report of the incidence which was registered as F.I.R. No. 19/89 at Surajpol Police Station, Udaipur for the offence punishable under Section 379 of the I.P.C. 3. There cannot be two views that due to the theft that took place from the Bus of the V.C.R. the respondent Corporation had to suffer loss. The appellant workman was served with the charge-sheet vide memo No. 2574 dated July 27, 1989. The appellant workman submitted reply to the charge-sheet, on September 26, 1989 admitting thereunder the theft of the V.C.R. from the said Bus was committed by some person in the Bus. 4. Heard learned counsel for the parties, perused the written arguments submitted by them, the memo of writ petition, the order of the learned single Judge passed therein and the memo of special appeal. 5. Both the learned counsel for the parties, in support of their contentions, placed reliance on many of the judgments of the Hon'ble Supreme Court and of other High Courts, the reference thereof has been made in their written arguments. 6. It is not gainsay that each case is to be decided on its own facts. 5. Both the learned counsel for the parties, in support of their contentions, placed reliance on many of the judgments of the Hon'ble Supreme Court and of other High Courts, the reference thereof has been made in their written arguments. 6. It is not gainsay that each case is to be decided on its own facts. A slight difference of facts in between the present case and the cases, reference of which have been made by the learned counsel for the parties, before the Hon'ble Supreme Court and other High Courts, makes a lot of difference and it cannot be taken that the decisions cited by the learned counsel for the parties cover the present matter. It is needless to say that there are catenae of decisions of the Hon'ble Supreme Court there under the requirements, ambit and scope, object and purpose of Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short, 'the Act, 1947) have been stated. Thus we do not consider it necessary to make reference to all those decisions and make this judgment bulky one. 7. For the purpose of the decision in this appeal we are of the opinion that the recent decision of the Constitution Bench of the Hon'ble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Limited v. Ram Gopal Sharma & Others AIR 2004 SC 643 : 2002 (2) SCC 244 : 2002-I-LLJ-834. laid down the requirement of Section 33(2)(b) of the Act, 1947 which are to be considered by the authority before which the proceedings are pending for approval of the action taken by the employer so far the discharge or dismissal of the workman is concerned. Their Lordships of the Hon'ble Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Limited's (supra) laid down the following requirements to be seen by the Authority concerned before whom where the application is made under Section 33(2)(b) of the Act, 1947, (1) Whether the order of dismissal or discharge is bona fide. (2) Whether it was made by way of victimisation or unfair labour practice. (3) Whether the conditions contained in the proviso were complied with or not, etc. 8. (2) Whether it was made by way of victimisation or unfair labour practice. (3) Whether the conditions contained in the proviso were complied with or not, etc. 8. In case the workman satisfies the authority, before whom the proceedings are pending, before the action is taken by the employer or his discharge or dismissal from the" services, that the action taken by the employer is not bonafide or it was by way of victimisation or unfair labour practice, the application filed by the employer for approval, of its action of dismissal or discharge of the workman cannot be granted. Both the learned Tribunal as well as the learned single Judge have not addressed themselves on the important requirement of Section 33(2)(b) of the Act, 1947 and on being found satisfied that the proviso to Section 33(2)(b) of the Act, 1947 has been complied with the application filed by the employer for approval of its action of discharge/dismissal of the workman has been granted. It is not enough and conclusive. 9. Having heard the learned counsel for the parties and on perusal of the entire record of the writ petition we are satisfied that the action taken by the respondent Corporation of discharge/dismissal of the appellant workman from the services is not bonafide. 10. The charge against the appellant workman was at the most of carelessness in discharge of duty. On account of his carelessness the respondent Corporation suffered loss and its V.C.R. was stolen by some person. Both, the enquiry officer as well as the disciplinary authority, have accepted that the Conductor and the Driver of the Bus were receiving Rs. 6/- per day for the safety and security of the bus. The respondent Corporation has not produced on the record of the case any material to show and establish that it was the Driver of the Bus who was solely responsible for the safety and security of the Bus and it was the duty of the driver to have watch and ward of the V.C.R. fitted in the Bus. In the absence of any material on the record of the matter if we go by the facts of the case we are of the opinion that it was the duty of the Conductor of the Bus to take care, look after and operate the V.C.R. for the entertainment of the passengers. In the absence of any material on the record of the matter if we go by the facts of the case we are of the opinion that it was the duty of the Conductor of the Bus to take care, look after and operate the V.C.R. for the entertainment of the passengers. The matter would have been different where the Conductor was not getting the daily allowance of Rs. 6/-. In case the matter is considered on the practical aspect, we reach to the conclusion that it was not the sole responsibility of the Driver of the Bus to look after and to have watch and ward of the V.C.R. fitted in the Bus. The enquiry officer has recorded a finding of fact that the Conductor was equally responsible for the theft of the V.C.R. From the record of the writ petition it transpires that charge-sheet was given both to the appellant workman (driver) and the Conductor of the bus. Very conveniently the respondent Corporation withheld from the Court ultimately what resulted in the enquiry initiated against the Conductor for the loss of the V.C.R.. 11. The learned counsel for the appellant workman contended, as we have noticed earlier, that no action has been taken against the Conductor of the Bus. Thus in the facts of the case the dissatisfaction of the disciplinary authority with the report of the enquiry officer, on the face of it, is perverse. The enquiry officer has reached to the correct conclusion in the facts of the case that for the loss of the V.C.R., the Driver, at the most, can be fastened with the liability of payment of cost thereof but the disciplinary authority has not agreed with this finding of the enquiry officer and set it aside. The disciplinary authority has not recorded cogent and justified reason for its disagreement with the approach of and the finding recorded by the enquiry officer. It is necessary to reproduce here the relevant portion of the order of the disciplinary authority dated October 10, 1990 under which the appellant workman has been dismissed, which reads as under:"Vernacular matter omitted. " 12. On dissection of the order the ground prevailed with the disciplinary authority to disagree with the finding and the approach of the enquiry officer are as under. " 12. On dissection of the order the ground prevailed with the disciplinary authority to disagree with the finding and the approach of the enquiry officer are as under. "(1) On the crew change on the Jaipur-Udaipur route the Bus No. R.N.P.-1432 with the T.V. and V.C.R. was handed over to the appellant workman. (2) On arrival of the Bus at Udaipur the, Conductor found the V.C.R. therein. (3) Both the Driver and Conductor of the Bus were getting Rs. 6/- per day allowance to keep watch and ward of the bus, either of them should have remained at the Bus while going for taking tea but it has not been done. (4) The Driver has accepted his guilt. " 13. We consider it necessary to reproduce here the relevant portion of the charge-sheet given to the appellant workman, which reads as under:"Vernacular matter omitted. " 14. From the tenor and the substance of the charges and the finding recorded by the enquiry officer in the enquiry report and the order of the disciplinary authority, it remains no more in dispute that both the Conductor and Driver of the Bus were under duty to keep watch and ward of the Bus. This also finds support from the fact that both the Driver and Conductor were getting daily allowance of Rs. 6/- for this purpose. The respondent Corporation in these facts on which there is no dispute has committed a serious illegality in setting free the Conductor and saddling the Driver with the punishment of dismissal discharge from the services. When the Driver and the Conductor were careless in discharge of their duty and on account of their carelessness the respondent Corporation suffered loss, we fail to see any justification in the action of the respondent Corporation to punish the Driver with the penalty of dismissal/discharge from the services and setting the Conductor free from all the charges. For this the respondent Corporation has not furnished any justification or explanation. 15. It is not the case of the respondent Corporation that the Conductor of the Bus was not duty bound to keep watch and ward of the Bus fitted with T.V. and V.C.R. Thus in the facts of this case the Conductor of the Bus could not have been given clean-chit. 15. It is not the case of the respondent Corporation that the Conductor of the Bus was not duty bound to keep watch and ward of the Bus fitted with T.V. and V.C.R. Thus in the facts of this case the Conductor of the Bus could not have been given clean-chit. Though there is nothing on the record to reach to the conclusion but, prima facie, we are of the opinion that the Conductor of the Bus owes more duty and responsibility to keep watch and ward of the Bus and its fixtures. The disciplinary authority has not looked into what to say to consider, this aspect of the matter while reaching to the conclusion that the appellant workman (Driver of the Bus) was fully responsible for the incident of theft of the V.C.R. of the Bus, and punished the appellant workman taking the shelter of his alleged admission of guilt. 16. Reply to the charge-sheet submitted )by the appellant workman is on the record as Annexure-5 to the writ petition and we consider it necessary to reproduce the same in the judgment, which reads as under:"Vernacular matter omitted. " 17. The reply nowhere contained the admission of the guilt of the charge by the appellant workman. Therein the appellant workman has clearly pleaded that the duty to keep watch and ward of the Bus and its fixtures, was of the Conductor of the Bus and the loss of the V.C.R. fitted in the Bus, caused to the respondent employed may be made good from him. 18. It is really shocking and surprising that the disciplinary authority has considered the contents aforesaid stated in the reply to the charge-sheet of the appellant workman, as admission of the guilt by the appellant workman. Though in the absence of any order/circular/regulation/standing order/guide lines etc. regarding such incidents which may occur, nothing can be said finally but taking everything worst against the appellant, workman, in our opinion, he alone could not have been taken to be wholly responsible for the loss caused to the respondent employer of the V.C.R. from the Bus. The responsibility was both of the Conductor and the Driver, but the former was totally set free. 19. The disciplinary authority under its order dated October 10, 1990, held that the driver and conductor both were getting Rs. 6/- per day for upkeep, look after and care of bus. The responsibility was both of the Conductor and the Driver, but the former was totally set free. 19. The disciplinary authority under its order dated October 10, 1990, held that the driver and conductor both were getting Rs. 6/- per day for upkeep, look after and care of bus. Either of them had to remain at the bus when it was stationed at a particular place or bus stand. After recording this finding the disciplinary authority jumped to the conclusion and found only the petitioner responsible for the theft of the V.C.R. on the non est fact that he has admitted his guilt. The order passed on a fact for (sic) which there is no foundation, it clearly goes to show the bestow of (sic) favour for consideration or otherwise to the Conductor, the driver alone has been made responsible. The order of the disciplinary authority is wholly perverse. 20. Giving of the clean-chit to the Conductor on non-est ground and the so-called admission of the guilt by the appellant workman the order passed of his dismissal from the services, in our opinion, is not bonafide. The Industrial Tribunal, Jaipur has not examined and addressed itself properly while considering the application of the respondent employer for approval of its action of dismissal/ discharge of the appellant workman whether it is bonafide or not. The learned single Judge has also not considered this aspect of the matter. 21. In the appeal before us the whole concentration, approach and insistence of the learned counsel appearing for the respondent employer is that the scope of this Court under Article 226 of the Constitution of India against the order of the Industrial Tribunal, Jaipur thereunder giving approval to the order of the respondent employer of dismissal of the appellant workman, is to see whether the enquiry conducted was fair or not and the requirement of the proviso to Section 33(2)(b) to the Act, 1947 has been fulfilled or not. In his submission rest thing is for the consideration of the Labour Court or Industrial Tribunal, as the case may be, to which reference has been made on raising the dispute and/or filing of the application under Section 33-A of the Act, 1947. 22. We do not find any substance and merits in this contention of the learned counsel for the respondent employer. 22. We do not find any substance and merits in this contention of the learned counsel for the respondent employer. The decision of the Hon'ble Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Limited's case (supra) is clear and specific. 23. A decision which is not bonafide is a perverse decision. The disciplinary authority has not recorded any cogent and satisfactory reasons not to agree with the finding of the enquiry officer. It is at the most the case of partial carelessness on the part of the appellant to upkeep, look after and care of the vehicle. The result thereof at the cost of repetition to be stated the monetary loss to the Corporation. It is not in dispute that the V.C.R. has been recovered. Thus the Corporation has not suffered any loss. 24. Be that as it may whatever may be the monetary loss suffered by the Corporation as a result of the partial carelessness of the appellant, the disciplinary authority has acted highly arbitrarily to dismiss him from services. We find sufficient justification, fairness and justice oriented approach in the report of the enquiry officer to recommend for recovery of the monetary loss suffered by the Corporation from the driver but we do not find any justification in the finding of the disciplinary authority where the whole loss is ordered to be recovered from the appellant and further he has been dismissed from services also. In the Corporation it is a fact of which notice can be taken that there are bungling and scandal after scandal. The Conductors use to take the passengers in the vehicles without tickets and they do so many other things which results in loss to the Corporation. We find and it is admitted by the learned counsel for the Corporation that during the surprise checking made recently by the Officers of the Corporation of the passenger vehicles on the; Roads the Conductors were found carrying the passengers without tickets and the total loss found suffered by the Corporation was more than Rs. 8 lacs. We find and it is admitted by the learned counsel for the Corporation that during the surprise checking made recently by the Officers of the Corporation of the passenger vehicles on the; Roads the Conductors were found carrying the passengers without tickets and the total loss found suffered by the Corporation was more than Rs. 8 lacs. We have come across hundreds of cases where the Conductors of the Corporation being caught carrying the passengers without tickets, a lenient view had been taken in their matters but in this case where the appellant has not committed any embezzlement of the Corporation's money; nor has committed any dishonest act nor has obtained undue advantage from the Corporation, he has acted bonafidely and honestly, he has been dismissed from services. What duty is prescribed for a Conductor of the Corporation has not been brought on the record but it may be first duty of the Conductor to take care of the vehicle and more particularly the V.C.R. fitted therein but that person has not been touched by the Corporation for the reasons best known to it. 25. The Labour Court has totally ignored this material aspect of the case and passed a routine order and granted the approval to the action of the Corporation in a case where the decision of the Disciplinary authority was not bonafide. 26. The matter can be looked into and considered from another aspect. We are sitting under Article 226 or 227 of the Constitution of India and in case on this technical plea what is raised by the respondent's counsel, the petitioner is non-suited, it will result in approval of the order of the disciplinary authority which on the face of it is perverse. The Courts are meant to do substantial justice and not to deny the same to a bonafide, honest and fair litigant, on technical ground. Where on this technical plea raised by the learned counsel for the respondent Corporation the appellant is non-suited, it will result in causing injustice and total denial of justice to him. The order of dismissal of the petitioner appellant from the services made by the respondent is wholly perverse and thus it cannot be allowed to stand. 27. Where on this technical plea raised by the learned counsel for the respondent Corporation the appellant is non-suited, it will result in causing injustice and total denial of justice to him. The order of dismissal of the petitioner appellant from the services made by the respondent is wholly perverse and thus it cannot be allowed to stand. 27. At one point of time we thought of to deny the back wages to the appellant and the poor appellant on our observation has also given in writing to this effect but the learned counsel for the respondent Corporation has prayed for the decision on merits. In the written arguments, however, he has given out that he will pursue the Corporation to reinstate the appellant in service without back wages. In case the back wages are denied to the appellant it will be again a serious injustice to him. He will stand punished in the form of denying the back wages only for, at the most, his partial carelessness and that this Court cannot do under Article 226 of the Constitution of India, more-so when the Conductor of the bus has totally been spared. 28. As a result of the aforesaid discussion the writ petition succeeds and the same is allowed. The orders dated March 19, 1996 of the Industrial Tribunal, Jaipur in Case No. Misc./I.T. 67/1990 and dated August 1, 1997 of the learned single Judge in S.B. Civil Writ Petition No. 578/1997 are quashed and set aside. The application filed by the respondent Corporation under Section 33(2)(b) of the Industrial Disputes Act, 1947 is dismissed. The appellant shall be entitled for all the consequential benefits follows from dismissal of the application. The appellant be reinstated forthwith in the services and the consequential benefits for which he is entitled are to be determined and paid to him within a period of two months from the date of receipt of the copy of this order. 29. In view of this judgment, the stay application, filed alongwith the special appeal, also stands disposed of. No order as to costs.Writ petition (of appellant) allowed. *******