Rafiq, J.In writ petition No. 156/2004 filed by Lakhan Singh, prayer has been made to quash and set aside the charge sheet served upon the petitioner on 5.1.2004 with all consequential benefits. In writ petition No. 8398/2006, prayer has been made that the action of the respondents in not granting benefits of first and second selection scale on completion of 9 and 18 years of service be declared illegal and the respondents be directed to grant such benefits with interest @ 18% per annum.

2. Shri Vigyan Shah, learned counsel for the petitioner has argued that the petitioner was appointed as Driver in Bharatpur Depot of the respondent-RSRTC after due selection through advertisement issued on 7.3.1986. In January, 1987, petitioner fell ill and therefore could not join the duties from 5.1.1987 to 31.1.1987. Petitioner was granted regular pay scale vide order dated 7.1.1987 and was asked to join duties within seven days of the communication of the order. The said order was served on the petitioner on 12.2.1987. He joined the duties on the same day, but he was not allowed to work. His services were terminated on 12.2.1987 on the ground that he failed to join duties within seven days as per the order dated 7.1.1987. A industrial dispute was referred to the Labour Court, Bharatpur at the instance of management on 4.4.1989 on the question whether the termination of services of the petitioner was violative of Section 25F of the Industrial Disputes Act and whether the order dated 7.1.1987 was not communicated to the petitioner till 31.1.1987 and he was not illegally allowed to resume duties on 1.2.1987. Learned Labour Court answered the reference in favour of petitioner holding that order dated 7.1.1987 was never conveyed to the petitioner inasmuch as order terminating services was violative of Section 25F of the Industrial Disputes Act. The Labour Court therefore directed reinstatement of petitioner with continuity and full back wages.

3. Learned counsel submitted that no inquiry was made prior to termination of services of the petitioner and Labour Court did not grant any liberty to the respondents to hold any fresh inquiry. When the respondents challenged the aforesaid award before this Court in writ petition No. 3125/96, the single bench of this Court vide judgment dated 23.9.2002 while upholding the award reduced the amount of back wages to merely 50% but the single bench did not grant any liberty to the respondents to hold fresh inquiry. When the matter was taken upto the division bench by the respondents, the division bench also dismissed the appeal, however, observed that this would preclude the respondents from dispensing with the services of the petitioner-workman again by making compliance of provisions of Section 25F. Petitioner was reinstated in service on 18.10.2003 on daily wages. Petitioner had to again file writ petition No. 8333/2002. A single bench of this Court vide judgment dated 11.5.2004 allowed the writ petition and directed the respondents to implement the award of the Labour Court in toto with regard to grant of regular pay scale within 15 days. The respondents passed an order on 12.8.2004 granting regular pay scale with effect from 1.2.1987 to the petitioner. The respondents further challenged the aforesaid single bench judgment before the division bench in special appeal No. 498/2004. The division bench dismissed the appeal vide judgment dated 2.2.2005 and respondents were directed to reinstate the petitioner in regular pay scale.

4. Learned counsel for the petitioner submits that the respondents illegally served a charge sheet after reinstatement on 5.1.2004 with regard to alleged willful absence for the period from 5.1.1987 to 31.1.1987. The respondents could not initiate a disciplinary proceeding against the petitioner in relation to incident of the year 1987 in the year 2004. The respondents are estopped from initiating the inquiry because when the reference is made to the Labour Court, they neither opted to prove the charge, nor made any application seeking to produce the evidence as to the willful absence. The Labour Court having decided the question that the communication dated 7.1.1987 was never served upon the petitioner, the respondents cannot be now permitted to contend that it was willful absence. Reliance is placed on the judgment in the case of Shankar Chakravarti Vs. Britannia Biscuit Co. Ltd. and Another, Learned counsel relied on the judgment of Supreme Court in The State of Madhya Pradesh Vs. Bani Singh and another, and P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board, and argued that even otherwise the disciplinary proceeding cannot be initiated after delay of 17 years. Learned counsel submitted that the only reason that the benefit of selection scale has been withheld by the respondents is the aforesaid charge sheet which is wholly illegal.

5. Shri Virendra Lodha, learned senior counsel for the respondents submitted that even if the earlier writ petition filed by the writ-petitioner was allowed and award has been passed in favour of petitioner by Labour Court on the ground of violation of Section 25-F of the Industrial Disputes Act, the basic fact is not disputed that the petitioner was absent from 5.1.1987 to 31.1.1987. There was no bar for conducting inquiry against the petitioner even now. Learned counsel submitted that grant of selection scale cannot be claimed as a right. However, it would depend on the satisfactory service record. If petitioner was served with a charge sheet, he would not be automatically entitled to selection scale. It is argued that even the division bench of this Court granted permission to the respondents to dispense with the service of petitioner after making compliance of Section 25-F of the Industrial Disputes Act implicit therein also lies the fact that the disciplinary inquiry can also be conducted.

6. Upon hearing the learned counsel for the petitioner and perusing the material on record, I find that the categorical stand of the management before the Labour Court was that petitioner was willfully absent from duty and that their action in terminating the services was perfectly just and legal. This was in a situation when the workman categorically pleaded before the Labour Court that he was granted regular pay scale of Rs. 490-740 by order dated 7.1.1987 and could not attend the duties due to his illness for a period from 5.1.1987 to 31.1.1987. He submitted certificate of illness before the Mechanical Engineer (Workshop In-charge), Alwar. The dispute therefore was whether the petitioner was willfully absent or it was after intimation to the respondents due to bona fide reason. This being the bone of contention between the parties, the respondents ought to have sought permission of the Labour Court to adduce evidence to prove the charge of willful absence.

7. These writ petitions have remained pending before this Court for 10 years and 8 years respectively. The respondents have not chosen to file any reply before this Court refuting the allegations. Petitioner has been required on number of occasions to approach this Court due to illegal approach of the respondents.

8. Though the division bench of this Court granted liberty to the respondents, but that liberty was to the effect that the respondents could dispense with the services of the petitioner by making the compliance of the provisions of Section 25-F of the Act, 1947. No such compliance has been made when the services of the petitioner were terminated by the respondents second time.

9. The Supreme Court in Shankar Chakravarti v. Britannia Biscuit Co. Ltd. and Another (supra) held that an Industrial Tribunal or Labour Court on finding the domestic enquiry invalid is not under obligation to suo motu give opportunity to the management to adduce additional evidence in support of its order against the workman. The management must itself seek such opportunity by specific request at an appropriate stage. In Shambhu Nath Goyal (supra) also the similar view was expressed by the Supreme Court.

10. In P.V. Mahadevan v. M.D. Tamilnadu Housing Board (supra), the charge sheet was issued to the delinquent in the year 2000 for alleged irregularity of the year 1990. The Supreme Court held that there was no convincing explanation on the side of the respondents explaining the inordinate delay. It was held in the circumstances, allowing the respondents to proceed with the departmental proceedings at this distance of time would be very prejudicial to the appellant.

11. In the present case too, firstly, no plea was set up by the respondents before the Labour Court that they wanted to prove the allegation of willful absence against the petitioner. Secondly, no opportunity was granted by the division bench of this Court to the respondents to hold the disciplinary inquiry and thirdly and most importantly, the charge sheet was issued to the petitioner on 5.1.2004 in regard to incident of 1987 after 17 long years. It would be now too harsh on the workman to require him to arrange the evidence in his defence after this distance of time. The respondents cannot be permitted to proceed with the inquiry. Such action of the respondent has to be held illegal and arbitrary. No reason has been assigned by the respondents even in another writ petition for non grant of selection grades except for pending disciplinary inquiry.

12. In the circumstances, therefore, both the writ petitions deserve to be succeed and are accordingly allowed. The charge sheet dated 5.1.2004 is quashed and set aside and the consequential benefits may be granted to the petitioner including benefit of selection grades. Compliance of the judgment be made within a period of three months from the date copy is this judgment is produced before the respondents.