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SCA/22293/2006 14/ 14 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 22293 of 2006
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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AHMEDABAD
MUNICIAPAL TRANSPOR TSERVICE - Petitioner(s)
Versus
MRS.CHANCHALBEN
SHAMALBHAI PARMAR - Respondent(s)
=========================================================
Appearance
:
MR
HS MUNSHAW for
Petitioner(s) : 1,
UNSERVED-EXPIRED (N) for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) : 1.2.1, 1.2.2,
1.2.3,1.2.4
MR HARDIK C RAWAL for Respondent(s) : 1.2.1, 1.2.2,
1.2.3,1.2.4
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 04/10/2007
ORAL
ORDER
1. Heard
learned advocate Mr.H.S.Munshaw for the petitioner and learned
advocate Mr.Hardik C. Raval for respondents.
2. In
the present petition, the petitioner has challenged the award passed
by Labour Court, Ahmedabad in Reference No.725 of 1995 dated
13.1.2006 whereby the Labour Court has partly allowed the reference
and granted the continuity of service in favour of respondent
workman and also directed to pay all retirement benefits and from
date of dismissal till the date of retirement, 20% back wages was
granted in favour of respondent workman.
3. The
matter is at admission stage. Learned advocate Mr.Munshaw submitted
that the respondent herein was an employee of petitioner transport
service and he is working as conductor, was on the duty on 21.1.1991
on a Bus bearing Route No.152/1, in second shift, about 10.10. p.m.,
reached to Gantral Stand where driver and conductor both have taken
up tea and meanwhile the driver of that bus has permitted one private
person to drive the bus of AMTS and due to that, serious accident had
occurred. The driver and conductor both have not informed the
petitioner transport service about the said accident either orally or
in writing. Not only that, according to petitioner transport service,
when unauthorized person has driven the bus, at that occasion, both
driver and conductor were on duty and, therefore, the misconduct
which has been committed by the driver and the conductor has been
considered / treated as a joined misconduct by both. It is not the
case of petitioner transport service that when unauthorized person
driven the bus, at that occasion the driver and conductor both were
sitting in the bus. But, according to petitioner transport service,
the driver has permitted the private person at that occasion the
conductor was also on duty. Thereafter, the accident occurred but
conductor has not informed to the petitioner transport service
either orally or by giving written communication. Therefore,
aforesaid misconduct is considered to be a negligence as per Standing
Order, Section 25 (H) and for that, charge-sheet was served to the
respondent on 20.2.1991 vide Exh.14. The reply was submitted by
respondent vide Exh.15 dated 2.8.1991. Thereafter, departmental
inquiry was initiated against the respondent and the Inquiry Officer
gave his finding vide Exh.16. Before the Labour Court, the respondent
has not challenged the legality and validity of departmental inquiry
but has challenged the finding given by the Inquiry Officer.
According to transport service, there was a damage to the bus to the
tune of more than Rs.2 lacs. The respondent was examined before the
Labour Court vide Exh.11. According to his evidence, one Karansinh,
who was unauthorized person, was entered into the bus and driven the
bus without any permission from the conductor. Thereafter, bus met
with an accident and unauthorized person has left the place of
accident. The only allegation against the respondent is that he has
not informed at the relevant point of time immediately to the
transport service by telephonic message or by written communication
and, therefore, he was considered to be a co-delinquent of misconduct
committed by the driver. The driver is also dismissed from service by
the transport service. The respondent was dismissed from service on
26.3.1992. The industrial dispute was raised by respondent which
referred for adjudication in the year 1995. Vide Exh.8 the respondent
has submitted specific purshis before the Labour Court that
respondent is challenging only dis-proportionate punishment looking
to the gravity of misconduct and relying upon the aforesaid purshis,
the Labour Court has framed the issue in Para.5, whether the finding
given by Inquiry Officer is baseless and perverse or not and whether
the punishment imposed by the department is dis-proportionate or not.
These two issues have been decided by the Labour Court after
considering the evidence on record. The Labour Court has considered
the charge sheet dated 20.2.1991; reply dated 2.8.1991 and finding
vide Exh.16 and ultimately, details of accident narrated in Para.6 by
the Labour Court. The explanation
has been given by the respondent that in the winter season as there
was too much cold season at night and due to that, respondent was
not able to give a written communication or phone call to the
transport service. Even at second day also, the respondent has not
informed to the petitioner – transport service. The Labour Court has
considered that whether conductor is liable for the accident and
unauthorized driving by Mr.Karansinh or not and whether the bus was
in charge of driver or conductor and who is responsible for
misconduct. The bus must be in charge of driver and not in charge of
conductor. If driver illegally wants to drive the vehicle even
ignoring the direction of conductor, he can and the conductor cannot
stop the driver because the bus is in charge of driver. Therefore,
the driver should not allow to unauthorized person. When driver has
allowed to unauthorized person then conductor has no place to say no
or he cannot object it because he was not in charge of the bus.
According to logbook and log-sheet, the charge of the bus was handed
over to the driver from the work-shop and it was not handed over to
the conductor. The driver has to maintain the bus and custody
of the bus is also with the driver. Even though the petitioner
transport service has initiated inquiry against the present
respondent, who was conductor at the relevant time. No doubt, as an
employee he was duty bound to inform the transport service about the
accident. For that part, he was negligent and accordingly, that
charge was proved against the present respondent. For that, the
Labour Court has also believed by giving a reasoning that charge of
negligence is proved against the respondent but question was examined
by Labour Court that whether looking to the gravity of misconduct of
remaining negligence and not to inform immediately or subsequently to
the transport service about the accident, punishment of dismissal is
justified or not. On 10.8.1999, when workman was examined vide
Exh.11, at that occasion, he was aged about 52 years and thereafter,
the matter was decided on 13.1.2006. Meanwhile, the respondent
reached the age of superannuation and therefore, the Labour Court has
not granted reinstatement in favour of respondent workman. The Labour
Court has come to conclusion while exercising the power under
Section-11A of the I.D.Act,1947 which gives power to Labour Court
while adjudicating the dispute where the dismissal is challenged for
adjudication and in the course of adjudication proceedings, the
Labour Court is satisfied that the order of discharge or dismissal
was not justified. The Labour Court may by its award set aside the
order of discharge or dismissal and direct reinstatement of the
workman on such terms and conditions if any as it thinks fit or give
such other relief to the workman including the award of any lessor
punishment in lieu of discharge or dismissal as the circumstances of
the case may require. Therefore, the Labour Court is having very wide
power and jurisdiction to pass appropriate orders as it thinks fit
looking to the circumstances of the case and also to consider to
impose any lessor punishment in lieu of discharge or dismissal as the
circumstances of the case may require. The Labour Court has exercised
this power while examining the legality and validity of dismissal
order dated 26.3.1992 vide Exh.20. The Labour Court has considered
that looking to the negligence of not informing to the transport
service about the accident and that the bus was driven by
unauthorized person, the punishment of dismissal is unjustified. The
transport service has not proved gainful employment of the respondent
workman by leading proper evidence. The evidence of the workman was
that he remained unemployed during the interim period. According to
evidence of the respondent workman vide Exh.11, as he was dismissed
by transport service, the study of his children has been left without
further progress. Therefore, according to conclusion of the Labour
Court that present respondent is not connected in any manner with
the main misconduct which was committed by the driver of the bus, who
had permitted to unauthorized person to drive the bus, is a correct
finding in respect to the issue which has been examined by the Labour
Court. If the respondent is not connected in any manner with the
misconduct committed by the driver then, only considering the
negligence on the part of the conductor in not informing the
transport service by telephonic message or written communication, the
punishment of dismissal is apparently harsh and unjustified in light
of the fact that conductor was appointed in the year 1975. The Labour
Court has not granted the full relief to the respondent workman. The
date of dismissal is 26.3.1992 and vide Exh.11 when evidence was
recorded of the respondent workman on 10.8.1999, at that time,
respondent was aged about 52 years old. Considering the normal age of
retirement as 58 years, the respondent may be retired in the year
2005. He died during the pending reference proceedings on 13.11.2003.
Therefore, the Labour Court has not granted the reinstatement in
favour of respondent workman and now only question has been
considered by the Labour Court that from date of dismissal ?
26.3.1992 to 13.11.2003 when gainful employment is not proved by
transport service, how much amount of back wages the respondent is
entitled. Considering the fact that negligence is proved against the
respondent and also considering the fact that in all interim period
is of 11 years, therefore, the Labour Court has denied 80% back wages
for the interim period to the respondent workman and only granted 20%
back wages of interim period. Learned advocate Mr.Munshaw raised
objection that the Labour Court should not have to grant the
retirement benefits to the respondent workman. The direction which
has been issued by the Labour Court granting the retirement benefits
to the respondent workman or legal representatives is merely a normal
and consequential direction. Even without issuing such direction, a
moment dismissal order is set aside by the Labour Court the transport
service must have to pay all the retirement benefits. The petitioner
transport service is the under legal obligation, if the dismissal is
set aside then in that case, the consequential benefits must have to
be paid to the concerned employee. Therefore, merely some additional
direction is issued by the Labour Court, which is not necessary, that
part cannot be taken into account by the transport service being an
additional benefits which has been awarded by the Labour Court.
3.1 I
have also considered the question of punishment imposed by transport
service looking to the gravity of misconduct which is found to be
proved. According to my opinion, the punishment of dismissal in such
a minor lapse when respondent had not joined hand with driver,
without any bad intention, is a certainly harsh and disproportionate
and shocked the conscience of the Court. The Labour Court has rightly
evaluated the evidence which are on record and considering this
minor lapse, 80% back wages has been denied by way of penalty for
misconduct is proved against the respondent. Now, the workman has
expired. The benefit will go to the family members. The Labour Court
has power to impose penalty while exercising the jurisdiction under
Section 11A of the I.D.Act,1947. This being a discretionary orders
passed by the Labour Court under Section 11A of the I.D.Act,1947. The
denial of 80% back wages of interim period is amounts to penalty
imposed by the Labour court while exercising the power under Section
11A of the I.D.Act,1947. This Court is having very limited
jurisdiction under Article 227 of the Constitution of India. These
both aspects have been considered by Apex Court in case of Jitendra
Singh Rathor v. Shri Baiyanath Ayurved Bhavan Ltd and anr. Reported
in AIR 1984 SC 976. The observations made in Para.3 and 4 are
relevant, therefore, quoted as under :
?S3.
Wide discretion is vested in the Tribunal under this provision and in
a given case on the facts established the Tribunal can vacate the
order of dismissal or discharge and give suitable directions. It is a
well settled principle of law that where an order of termination of
service found to be bad and reinstatement is directed, the wronged
workman is ordinarily entitled to full back wages unless for any
particular reason the whole or a part of it is asked to be withheld.
The Tribunal while directing reinstatement and keeping the
delinquency in view could withhold payment of a part or the whole of
the back wages. In our opinion, the High Court was right in taking
the view that when payment of back wages either in full or part is
withheld it amounts to a penalty. Withholding of back wages to the
extent of half in the facts of the case was, therefore, by way of
penalty referable to proved misconduct and that situation could not
have been answered by the High Court by saying that the relief of
reinstatement was being granted on terms of withholding of half of
the back wages and, therefore, did not constitute penalty.
4.
Under S. 11A of the Act, advisedly wide discretion has been vested in
the Tribunal in the matter of awarding relief according to the
circumstances of the case. The High Court under Art. 227 of the
Constitution does not enjoy such power though as a superior court, it
is vested with the right of superintendence. The High Court is
indisputably entitled to scrutinize the orders of the subordinate
tribunals within the well accepted limitations and, therefore, it
could in an appropriate case quash the award of the Tribunal and
thereupon remit the matter to it for fresh disposal in accordance
with law and directions, if any. The High Court is not entitled to
exercise the powers of the Tribunal and substitute an award in place
of the one made by the Tribunal as in the, case of an appeal where it
lies to it. In this case, the Tribunal had directed reinstatement,
the High Court vacated the direction of reinstatement and computed
compensation of Rupees 15,000/- in lieu of restoration of service. We
are not impressed by the reasoning of the High Court that
reinstatement was not justified when, the tribunal in exercise of its
wide discretion given under the law found that such relief would meet
the ends of justice. The Tribunal had not recorded a finding that
there was loss of confidence of the employer. The job of a librarian
does not involve the necessity of enjoyment of any special confidence
of the employer. At any rate, the High Court too did not record a
finding to that effect. Again there is no indication in the judgment
of the High Court as to how many years of service the appellant had
put in and how many years of service were still left under the
Standing Orders. The salary and other service benefits which the
appellant was receiving also did not enter into the consideration of
the High Court while computing the compensation. We are, therefore,
of the view that the High Court had no justification to interfere
with the direction regarding reinstatement to service and in
proceeding to substitute the direction by quantifying compensation of
Rupees 15,000/- it acted without any legitimate basis.??
4. In
view of the aforesaid observations made by this Court, after
considering the reasoning given by Labour Court and also considering
that more than 17 years’ service of the respondent conductor and
misconduct of negligence of the respondent conductor is proved which
is not connected as joined hand with the misconduct of driver in any
way, therefore, in light of gravity of misconduct the dismissal is
not justified by the transport service and Labour court is perfectly
justified by setting aside the dismissal order and in granting only
20% back wages of interim period which comes to about 11 years. The
denial of 80% back wages is considered to be a penalty to the
respondent workman for the misconduct of negligence which has been
found to be proved against the respondent workman. So, according to
my opinion, the Labour Court has rightly appreciated the evidence on
record and rightly examined the issue of punishment as per purshis
given by the workman vide Exh.8 and Labour Court has jurisdiction to
examine the question of punishment while exercising the power under
Section 11A of the I.D.Act,1947 and accordingly, the Labour Court has
rightly exercised the power and set aside the dismissal order which
considered to be disproportionate and harsh looking to the gravity of
misconduct and considering the misconduct of negligence which is
found to be proved and transport service being public body, rightly
not granted the full back wages of interim period and rightly denied
80% back wages of interim period being a penalty to the respondent
workman and rightly awarded 20% back wages of interim period.
Otherwise also, the respondent workman is entitled to all the
retirement benefits as if dismissal order is not passed against him.
According to my opinion, the Labour Court has not committed any error
while passing such award which requires interference by this Court
under Article 227 of the Constitution of India. According to my
opinion, this being a balance and reasonable award passed by the
Labour Court which does not require interference by this Court under
Article 227 of the Constitution of India. Hence, there is no
substance in the present petition. Accordingly, present petition is
dismissed. Direct service to respondent.
5. Learned
advocate Mr.Raval submitted that the widow is without any benefit
since passing of the award in the year 2006 and respondent died in
the year 2003. Therefore, some direction may be issued to the
petitioner, so that the petitioner may implement the award as early
as possible.
6. Learned
advocate Mr.Munshaw submitted that petitioner will make efforts to
see that as early as the award will be implemented by the petitioner
transport service and whatever retirement benefits and back wages
will be paid to the legal heirs and representatives of respondent
workman.
(H.K.RATHOD,J.)
(vipul)
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