JUDGMENT 1. - This writ petition, as originally filed by petitioner Roshan Lal Saini, sought to challenge the order dated 29.05.2013 passed by the Labour Court, Jaipur No.1, Jaipur, in Case No.L.C.R.38/11 by which the petitioner was held to be workman in the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (for short, 'the ID Act') and consequently the enquiry held against him by the respondent - Rajasthan Housing Board, was held to be fair and proper. 2. The Labour Court in the aforesaid matter adjudicating the industrial dispute as to correctness or otherwise of the dismissal of the petitioner from service vide order dated 03.01.2013. During pendency of the proceedings in the present petition, the respondents in separate disciplinary proceedings against petitioner, passed another order of penalty dismissing him again from service on 25.10.2013. On application filed by the petitioner, the writ petition was allowed to be amended vide order dated 28.11.2013 so as to challenge the order of dismissal. The respondents have filed reply to the amended writ petition. Number of additional affidavits have been filed by the petitioner, to some of which counter affidavits have been filed by the respondents. 3. This court on 27.09.2013, while dismissing the stay petition directed that the matter shall be heard for final disposal at the admission stage. Thus the matter was heard finally at the stage of admission. 4. Petitioner Roshan Lal Saini has made his submissions in person. Shri J.K. Singhi, learned Senior Counsel, appearing for the respondents, has also made submission on behalf of the respondent Housing Board. 5. Petitioner Roshan Lal Saini, appearing in person, has referred to series of litigation initiated by him against the respondent Housing Board including the Writ Petition No.4551/2004 filed by him against the order of first dismissal dated 03.01.2003, which was dismissed by the Single Bench of this Court vide order dated 04.01.2006, holding that the petitioner has alternative remedy by way of raising industrial dispute before appropriate industrial court. The petitioner filed appeal against the aforesaid judgment before division bench of this Court, being Special Appeal (Writ) No.116/2006. The said appeal was initially permitted to be withdrawn vide order dated 11.09.2006 with liberty to file review petition before the Single Bench. Review petition No.124/2006 filed by the petitioner was dismissed by the Single Bench vide order dated 12.10.2006. The petitioner filed appeal against the aforesaid judgment before division bench of this Court, being Special Appeal (Writ) No.116/2006. The said appeal was initially permitted to be withdrawn vide order dated 11.09.2006 with liberty to file review petition before the Single Bench. Review petition No.124/2006 filed by the petitioner was dismissed by the Single Bench vide order dated 12.10.2006. Petitioner then again filed Special Appeal against the aforesaid judgment before the Division Bench, being Special Appeal (Writ) No.1330/2006, which was dismissed vide order dated 07.02.2007. The petitioner then again filed Miscellaneous Application for recall of the order dated 04.01.2006 of the learned Single Judge in Writ Petition No.4551/2004, and review of the order dated 12.10.2006. The said Miscellaneous Application No.231/2011 was dismissed by the Single Bench vide order dated 18.09.2012, where-against the petitioner again filed D.B. Special Appeal (Writ) No.1337/2012. During the course of argument, the petitioner has submitted that he even approached the Hon'ble Supreme Court against the aforesaid judgment passed by the Division Bench, but without any success. 6. Petitioner then approached the Conciliation Officer and on failure report being sent, the appropriate Government made reference of an industrial dispute to the Labour Court. 7. The petitioner was initially appointed as Junior Assistant in April, 1980 in the Rajasthan Housing Board. Thereafter he was promoted to the post of Junior Accountant in January, 1992. Petitioner was in a disciplinary proceeding dismissed from service on 03.01.2003. 8. 7. The petitioner was initially appointed as Junior Assistant in April, 1980 in the Rajasthan Housing Board. Thereafter he was promoted to the post of Junior Accountant in January, 1992. Petitioner was in a disciplinary proceeding dismissed from service on 03.01.2003. 8. The Division Bench, on being apprised of the fact that the respondent Housing Board has now raised an objection before the labour Court that the petitioner is not a workman and therefore the industrial dispute was not maintainable and, vide judgment dated 30.01.2013, held that the petitioner cannot be rendered remediless, and that when the originally filed Writ Petition was dismissed by the Single Bench on objection of the Housing Board that the petitioner has alternative remedy under the Industrial Disputes Act, if the objection of the Housing Board is now upheld, the petitioner would be rendered remediless, thus bringing him to a square one at the stage when he initially filed the Writ Petition before this Court in the year 2004 and further once the writ petition was dismissed on objection of availability of alternative remedy raised by the respondents, it would now not be open for the respondent to raise this objection before the Labour Court that the petitioner is not a workman. It was thereafter that the Division Bench directed the Labour Court to decide the said reference expeditiously but in no case later than six months. 9. Petitioner Roshan Lal Saini, who has argued in person, has submitted that the Labour Court even then was required to deal with the argument on merits whether when the petitioner was at the relevant time receiving the salary in the pay scale of Rs. 11000/- and working on the post of Junior Accountant, could he be said to be a workman. The petitioner submitted that the Labour Court has mechanically held the enquiry to be fair and proper without taking into consideration the arguments of the petitioner. In this connection, the petitioner has submitted that the labour Court has failed to appreciate that although the charge-sheet was served upon the petitioner but there was initially an injunction order passed by the Civil Court on 05.12.2002, restraining the respondents from further proceeding in the matter, which order was confirmed by this Court on 18.01.2010. It was thereafter that fresh charge-sheet was served upon the petitioner by the respondents. It was thereafter that fresh charge-sheet was served upon the petitioner by the respondents. The injunction was to the extent of prohibiting the respondents from proceeding against the petitioner in respect of other charges except the charge of willful absence. The disciplinary authority then served another charge-sheet dated 23.11.2002 on the ground of absence. Enquiry Officer was appointed in that charge-sheet on 27.12.2002 but petitioner was never informed of the fact as to what steps have been taken and where the enquiry proceedings would be held. The order appointing the enquiry officer was received by the petitioner on 03.01.2003 but before that order was served upon the petitioner, the order of removal was passed by the Secretary of the Rajasthan Housing Board. The petitioner has been removed without any full-fledged enquiry, which is enough to show that the enquiry was held in most unfair and arbitrary manner. The Labour Court has erred in holding the enquiry to be fair and proper. 10. Petitioner, in person, has argued that the Shri R.C. Solanki, who was appointed as enquiry officer on 27.12.2002, sent a communication on 27.12.2002 itself to the petitioner that the he has been appointed as enquiry officer and he called upon the petitioner to appear before him within three days to produce his defence or else ex-parte proceedings would be initiated against the petitioner. It is alleged that the aforesaid letter was sent to the petitioner by registered post. The petitioner has invited attention of the court towards the envelope of the registry showing that it was sent through General Post Office on 28.12.2002 and 29.12.2002 was holiday being Sunday, thus two days of three days i.e. 27th, 28th and 29th, were consumed in communication having reached the petitioner. The remark has thus wrongly been made at the back of envelop by the postman of the post office that petitioner was not available on the given address on 30th, 31st of December, 2002 and 1st and 2nd January, 2003, and eventually the order was served upon him on 03.01.2003. The petitioner submitted that the Headquarters of the Secretary, Rajasthan Housing Board was the enquiry officer, is at Jaipur but he deliberately went to Bikaner to hold the enquiry and framed the order of dismissal of the petitioner at Bikaner, which is highly arbitrary. The enquiry cannot be said to be fair and proper. 11. The petitioner submitted that the Headquarters of the Secretary, Rajasthan Housing Board was the enquiry officer, is at Jaipur but he deliberately went to Bikaner to hold the enquiry and framed the order of dismissal of the petitioner at Bikaner, which is highly arbitrary. The enquiry cannot be said to be fair and proper. 11. The petitioner, in person, has further argued that the enquiry officer was expected to proceed under Rule 11 of the Rajasthan Housing Board Disciplinary Proceedings and Appeal Regulations, 1976 and, therefore the enquiry officer could not have been appointed under Rule 86 of the Rajasthan Service Rules. 12. Petitioner Roshan Lal Saini has, in person, argued that the second order of his dismissal dated 25.10.2013 has been passed in most arbitrary and illegal manner. It is argued that the enquiry officer has not examined any of the documents while preparing the enquiry report and has not analysed the effect of important documents relied by the department, all of which had gone missing. The Division Bench of this Court taking note of such conduct of the enquiry officer has in fact issued notice of contempt to him in Contempt Petition No.378/2013 vide order dated 05.07.2013. The Labour Court has therefore erred in holding the enquiry to be fair and proper. 13. As regards the challenge to the order of dismissal passed on second occasion dated 25.10.2013, the petitioner has further argued that the aforesaid order has been passed on the basis of ex-parte report against the petitioner on the premise that despite adequate opportunities, the petitioner did not appear before the respondent and therefore the charges were taken as proved. It is contended that in the dismissal order, reference is made to the letter of the Secretary of the Rajasthan Housing Board dated 01.06.2012, 18.06.2012 and 25.06.2012, and that of the Deputy Secretary dated 05.08.2013 and 06.09.2013. The petitioner has referred to the letter dated 05.08.2013 by which he was required to appear before the Housing Commissioner on 20.09.2013 but before he could appear before him, he was sent another communication vide another letter dated 06.09.2013 changing the date of appearance from 20.09.2013 to 24.09.2013. Petitioner submitted his representation before the Housing Commissioner on 22.09.2013. 14. The petitioner has referred to the letter dated 05.08.2013 by which he was required to appear before the Housing Commissioner on 20.09.2013 but before he could appear before him, he was sent another communication vide another letter dated 06.09.2013 changing the date of appearance from 20.09.2013 to 24.09.2013. Petitioner submitted his representation before the Housing Commissioner on 22.09.2013. 14. Petitioner has argued that the enquiry officer, despite order dated 09.09.2009 in Writ Petition No.8611/2007 and order dated 09.05.2011 in Special Appeal (Writ) No.33/2010, has not given any categorical finding as to the effect of missing documents on the basis of which the charges of embezzlement were sought to be proved against the petitioner. The petitioner in fact filed Contempt Petition No.378/2013 before the Division Bench of this Court. Notice of the contempt petition was issued to the enquiry officer. The petitioner submitted an application before the Housing Commissioner on 22.09.2013 apprising him of the fact that the enquiry report submitted by Shri G.K. Goswami, the then enquiry officer, may not be acted upon as the notice of contempt petition has been issued to him by the Division Bench of this Court. He made reference to another Contempt Petition No.621/2013 initiated by him against other officers. He invited attention of the Housing Board towards number of applications submitted by him to the enquiry officer and the disciplinary authority demanding photostat copies of the original 544 vouchers so that he could file reply to the charge-sheet and defend himself. He submitted that all those vouchers were checked and cross-verified by the Accountant, the Resident Engineer and the Audit officer and no financial irregularity was found. The audit report submitted by Shankar Lal Gupta, therefore, cannot be made the sole basis for holding the charges proved against the petitioner. 15. The petitioner also requested that the enquiry be deferred till after 30.04.2013. Besides, it was contended by the petitioner that on 24.09.2013, his two matters were fixed before this court, therefore he could not appear before the Housing Board Commissioner on 24.09.2013. Despite the written request made by the petitioner, the disciplinary authority has passed the ex-parte order against the petitioner. 16. Besides, it was contended by the petitioner that on 24.09.2013, his two matters were fixed before this court, therefore he could not appear before the Housing Board Commissioner on 24.09.2013. Despite the written request made by the petitioner, the disciplinary authority has passed the ex-parte order against the petitioner. 16. Shri J.K. Singhi, learned Senior Counsel appearing for the respondent Housing Board, has submitted that in view of the findings recorded by the Division Bench of this Court in Special Appeal (Writ) No.1337/2012 vide judgment dated 30.01.2013 that there was no option for the Labour Court but to hold that the petitioner was a workman and proceed to decided the matter on merits. On the question of fairness of the enquiry, Shri J.K. Singhi, learned Senior Counsel, submitted that Shri R.C. Solanki, Secretary, Rajasthan Housing Board, was appointed as enquiry officer on 22.12.2002. Copy of the order was sent to the petitioner. The Secretary of the respondent Housing Board, by communication dated 27.12.2002 itself required the petitioner to appear before him within three days in his office, failing which ex-parte proceedings would be drawn against him. 17. Shri J.K. Singhi, learned Senior Counsel for respondents, submitted that the enquiry officer sent a letter to the petitioner on 27.12.2002 itself calling upon him to produce his defence. This letter was sent by registered post to the petitioner. The postman has given the remark at the back of the envelope that despite his visiting at the given address, the petitioner was not found on 30.12.2002, 31.12.2002, 01.01.2003 and 02.01.2003. It is thus clear that the petitioner avoided to receive the aforesaid letter and did not deliberately participate in the enquiry proceedings. The order of enquiry officer was therefore fully justified in recording the finding of guilt against the petitioner as he failed to produce his defense despite adequate opportunity. 18. Shri J.K. Singhi, learned Senior Counsel for the respondent Housing Board, has submitted that it was in Writ Petition No.8611/2007 filed by the petitioner that this court vide judgment dated 09.09.2009 directed the respondents to conclude the enquiry proceedings against him within four months. In Special Appeal (Writ) No.33/2010, the Division Bench vide judgment dated 09.05.2011 upheld the aforesaid order. Shri J.K. Singhi, learned Senior Counsel for the respondent Housing Board, has submitted that it was in Writ Petition No.8611/2007 filed by the petitioner that this court vide judgment dated 09.09.2009 directed the respondents to conclude the enquiry proceedings against him within four months. In Special Appeal (Writ) No.33/2010, the Division Bench vide judgment dated 09.05.2011 upheld the aforesaid order. Regarding documents, it was observed that the enquiry officer shall decide about the same and directed the enquiry officer to proceed in the matter and conclude the enquiry as far as possible within four months. Despite this order, the petitioner did not cooperate in the enquiry proceedings. The enquiry officer sent number of notices/communications to the petitioner. The petitioner did not even file reply to the charge-sheet nor produce any written submissions. The enquiry officer was therefore perfectly justified in proving the charges against him and submitting the enquiry report. The disciplinary authority also gave number of opportunities to the petitioner but he did not avail the same. 19. On hearing the petitioner in person and Shri J.K. Singhi, learned Senior Counsel for the respondents, and perusing the impugned order passed by the Labour Court, it must be held that so far as the question whether the petitioner is workman or not, is no longer open to challenge for two reasons. First reason is that Writ Petition No.4551/2004 filed by the petitioner was dismissed by this court vide order dated 04.01.2006 on the ground of availability of efficacious alternative remedy by way of raising an industrial dispute before the appropriate forum, this being the objection raised by the respondent. The Special Appeal (Writ) No.116/2006 filed there-against was withdrawn by the petitioner and accordingly the same was dismissed vide order dated 11.09.2006 as withdrawn with liberty to file review petition before the Single Bench. But when the Review Petition No.124/2006 filed by the petitioner, the Single Bench dismissed the same vide order dated 12.10.2006. Thereafter the petitioner filed composite Special Appeal (Writ) No.1330/2006, which was also dismissed vide order dated 07.02.2007. But when the Review Petition No.124/2006 filed by the petitioner, the Single Bench dismissed the same vide order dated 12.10.2006. Thereafter the petitioner filed composite Special Appeal (Writ) No.1330/2006, which was also dismissed vide order dated 07.02.2007. Even the Review Petition No.53/2007 filed by the petitioner seeking view of the order dated 07.02.2007 was also dismissed, and, as informed by the petitioner, he also approached the Supreme Court by filing Special Leave to Petition No.9513/2010, which was withdrawn with liberty to move the appropriate forum.Second reason is that the Special Appeal (Writ) No.1337/2012, filed against order dated 18.09.2012 passed in Miscellaneous Application No.231/2011 filed by the petitioner for recalling of the order dated 04.01.2006 and review order dated 12.10.2006 after the Special Appeal preferred against the aforementioned orders came to be dismissed in Special Appeal (Writ) No.1330/2006, came to be dismissed vide order dated 30.01.2013. While dismissing the Special Appeal (Writ) No.1330/2006, the Division Bench, taking note of the submission of the petitioner, has recorded a categorical finding that while on one hand the respondents Housing Board raised the objection of availability of alternative remedy to the petitioner before the industrial court in the writ petition filed by the petitioner against the order of dismissal, on the other hand now they are taking the objection before the Labour Court that the petitioner is not a workman. The Division Bench observed that the petitioner cannot be left remediless and having held so, it was not open to the respondent Housing Board now to raise this objection as the petitioner cannot be left remediless. Having held thus, the Division Bench directed the Labour Court to proceed and decide the reference in a time bound manner. That part of the impugned order passed by the Labour Court has to be upheld. 20. Coming now to challenge to the order of the Labour Court holding the enquiry to be fair and proper, it is evident that having been appointed as enquiry officer, the Secretary of the respondent Housing Board sent a letter dated 27.12.2002 to the petitioner. The petitioner has demonstrated before this court from the copy of the envelope and affixation of receipt by the General Post Office thereupon that the said letter was dispatched to him on 28.12.2002. He has also produced on record copy of the calendar of the year 2002 indicating that 29.12.2002, being Sunday, was the holiday. The petitioner has demonstrated before this court from the copy of the envelope and affixation of receipt by the General Post Office thereupon that the said letter was dispatched to him on 28.12.2002. He has also produced on record copy of the calendar of the year 2002 indicating that 29.12.2002, being Sunday, was the holiday. Three days during which the petitioner was required to submit his defence, were thus consumed even before the letter could be offered to the petitioner by the post office as according to the remarks on the envelope made by the postman, he visited at the given address for the first time on 30.12.2002, which further fortifies the contention of the petitioner that this letter was dispatched only on 28.12.2002, which is why the postman for the first time visited at the given address on 30.12.2002.The post man failed to deliver the letter to the petitioner on 31.12.2002, 01.01.2003 and 02.01.2003. It is claimed that the letter for the first time was delivered on the petitioner on 03.01.2003 and on that very day the disciplinary authority had already passed the order of dismissal of the petitioner. The petitioner has alleged that the Headquarters of the Secretary of the respondent Board is at Jaipur whereas he proceeded to hold the enquiry at Bikaner where he framed the dismissal order. The enquiry officer himself has given his finding on the quantum of penalty. It is not clear whether the Secretary himself was the disciplinary authority and whether in that capacity he passed the order of dismissal. But that is matter to be examined by the Labour Court on merit but the sequence of the events and the manner in which the Secretary, Rajasthan Housing Board as enquiry officer or otherwise, has passed the dismissal order, clearly reflect the arbitrary manner of his working. The Labour Court was therefore wholly unjustified in holding such a method adopted by the enquiry officer and/or disciplinary authority, to be fair and proper. Besides, the enquiry officer has not analysed the missing documents and it is not clear as to on what basis he has found the charges proved. If the documents were missing as to on what basis he found the charges proved. The enquiry proceedings are therefore held to be unfair and improper. 21. Besides, the enquiry officer has not analysed the missing documents and it is not clear as to on what basis he has found the charges proved. If the documents were missing as to on what basis he found the charges proved. The enquiry proceedings are therefore held to be unfair and improper. 21. The impugned order of the Labour Court to the extent it seeks to hold the enquiry to be fair and proper, is quashed and set aside. Having held so, however, the respondent Housing Board is set at liberty to adduce the evidence before the Labour Court. 22. Looking to the period already taken by the parties, this court without requiring the respondent Rajasthan Housing Board to move an application to that effect, this court directs that the respondent Housing Board shall be at liberty to adduce evidence before the labour Court as expeditiously as possible but not later than three months from the date now fixed by this court for the parties to appear before the Labour Court. 23. As regards the order of dismissal of the petitioner dated 25.10.2013, it is evident that the disciplinary authority has referred to five communications sent to the petitioner calling upon him to appear before him but some of those communications are such, which can be eliminated from this sequence because by letter dated 05.08.2013 the petitioner was required to appear before the disciplinary authority on 20.09.2013 but before the petitioner could appear before him, he was sent another communication vide another letter dated 06.09.2013 changing the date of appearance from 20.09.2013 to 24.09.2013. Petitioner submitted his representation before the Housing Commissioner on 22.09.2013. The petitioner contended that on that date he had two matters fixed before this court including Contempt Petition No.378/2013 against the enquiry officer. The petitioner requested the Housing Commissioner vide letter dated 22.09.2013 for postponement of the proceedings till after 30.10.2013 citing the reason of pendency of contempt petitions and other matters. Petitioner also demonstrated that in Contempt Petition No.378/2013 notice was issued to the enquiry officer for not giving any finding as to the absence of the documents, which had gone missing and which had formed the basis for charge-sheet against the petitioner. Petitioner also demonstrated that in Contempt Petition No.378/2013 notice was issued to the enquiry officer for not giving any finding as to the absence of the documents, which had gone missing and which had formed the basis for charge-sheet against the petitioner. Whether or not, the petitioner could have been able to substantiate his plea but it cannot certainly be disputed that the notice was issued by the court in the contempt petition to the enquiry officer and the contempt petition was not decided. Despite therefore the order of the court to conclude the enquiry proceedings within four months, the disciplinary authority ought to have awaited the outcome of the contempt petition, especially when the petitioner had requested so by specifically inviting his attention towards the same. The respondents have not been able to show even before this court as to what happened to the original 544 vouchers, which, according to the petitioner, were verified and cross-verified by the different officials. Besides, second order of dismissal cannot be justified because an officer, who has already been dismissed once, cannot be again dismissed, as it would be a superfluous exercise. The procedure that was adopted by the enquiry officer, was thus violative of the basic tenets of the principals of justice. The order of dismissal passed on the basis of enquiry report, has to be therefore held wholly illegal, arbitrary and unconstitutional, having been passed in breach of Articles 14 and 16 of the Constitution of India. In view of the above, the order dated 25.10.2013 cannot be sustained and it deserves to be set aside. 24. In the result, the writ petition is allowed. The order dated 25.10.2013 is quashed and set aside. 25. Writ petition is accordingly disposed of with no order as to costs. This also disposes of other applications filed in the writ petition.Petition Allowed. *******