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SCA/28274/2007 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 28274 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
=========================================
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 ?
=========================================
G
S R T C - Petitioner(s)
Versus
BHARATKUMAR
P PRAJAPATI C/O. SECRETARY - Respondent(s)
=========================================
Appearance :
MS
SEJAL K MANDAVIA for Petitioner(s) : 1,
MR GK
RATHOD for Respondent(s) : 1,
MR MUKESH H RATHOD for Respondent(s)
: 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 09/07/2008
ORAL
JUDGMENT
1. In
this petition, the petitioner ? State Road Transport Corporation
has challenged the award dated 30.11.2006 passed by the learned
Industrial Tribunal, Ahmedabad in Reference (IT) No.149 of 2003. By
impugned order, the learned Industrial Tribunal has set aside the
order dated 6.12.1997 passed by the Disciplinary Authority and
order dated 22.6.1999 passed by the Appellate ? Reviewing Authority
of the petitioner – Corporation pursuant to and in connection with
the charge-sheet dated 23.7.1997. The impugned award render, this
case of misconduct, in case of “no penalty” though the
charge is held as proved by the Inquiry Officer and Disciplinary
Authority and legality of this departmental inquiry was not
challenged. Hence, Rule.
2. Ms.
Sejal K. Mandavia, learned advocate appears for the petitioner ?
Corporation and in response to the notice issued by the Court, Mr.
Rathod, learned advocate appears for the respondent. In view of the
joint request of the advocates of both sides and with their consent,
the petition is taken up for final hearing today and is decided
finally.
3. Mrs.
Mandavia, learned advocate has taken this Court through the
charge-sheet, statements of the passengers as well as the statement
of the respondent and also through the findings of the Inquiry
Officer and submitted that the learned Industrial Court has committed
error in setting aside the penalty order as a result of which the
respondent as well as the misconduct would go without any punishment
whatsoever. She submitted that the statements of the passengers
conclusively demonstrated that the respondent collected fair, but
did not issue ticket. She also relied upon the statement made by the
respondent.
4. On
the other hand, Mr. Rathod, learned advocate submitted that the order
passed by the learned Tribunal is just and proper and he assailed the
orders of the Disciplinary Authority as well as Appellate – Reviewing
Authority mainly by deriving support from the Disciplinary
Authority’s order, wherein, while imposing penalty, the Disciplinary
Authority has recorded that if the checking team had not undertaken
the checking at the material point of time, then the respondent would
have been successful in misappropriation of the amount by collecting
fair and not issuing tickets. Mr. Rathod, learned advocate cited the
said observations and submitted that the order of the Disciplinary
Authority discloses that the Disciplinary Authority has proceeded on
the basis of assumptions and conjunctures. He also relied upon the
cross-examination of Mr. N.A. Pandya, the reporter (i.e. the member
of checking team), wherein the respondent appears to have questioned
him as to whether the checking team had verified the cash with the
respondent or not and in reply, said Mr. Pandya seems to have
admitted that the cash was not verified. On the basis of such
statement made by Mr. Pandya, Mr. Rathod, learned advocate submitted
that unless the cash with the respondent was verified, the
Disciplinary Authority could not have reached to the conclusion that
the respondent had collected the fair and had not issued tickets.
5. It
is the case of the petitioner Corporation that while respondent was
on duty as Conductor in bus plying from Lanva to Patan. Three groups
of passengers boarded the bus. As per the case of the petitioner –
Corporation, in the first group, there were two passengers, from
whom, the respondent collected fair of Rs.2/-, but did not issue
tickets until the said persons reached their destination viz.
Shankhari. Likewise in respect of the second group, there were two
passengers and from them the respondent collected fair of Rs.2/-, but
did not issue tickets and in respect of the third group of
passengers, there were three passengers, the respondent collected
fair of Rs.4.50 and did not issue tickets. Thus, in respect of seven
tickets, though he collected fair of Rs.8.50, he did not issue
tickets. In connection with the said misconduct, a charge-sheet dated
27.7.1997 was framed and issued on the basis of the statements of
passengers recorded by the checking team as well as the statement of
respondent. The petitioner ? Corporation has also claimed that
copies of the statements were served to the respondent along with
charge-sheet and after following the normal procedure of inviting
explanation and considering the explanation, the petitioner
Corporation conducted departmental inquiry wherein the respondent
herein was afforded opportunity to make statement in his defence as
well as to cross-examine the witnesses examined by the respondent ?
Corporation. After conclusion of the departmental inquiry, the
Inquiry Officer submitted his report dated 24.11.1997. Subsequently,
after considering the record and findings of the Inquiry Officer, the
Disciplinary Authority passed an order imposing punishment of
stoppage of four increments with permanent effect. The respondent
herein challenged the said order before the Appellate Authority,
however, upon examining the record, the Appellate Authority
considered it appropriate to take the matter in review since
in view of the Appellate Authority, the penalty by the Disciplinary
Authority was inadequate. After issuing notice to the
respondent for initiating review proceedings, the Reviewing Authority
afforded opportunity of hearing and defence to the respondent and
subsequently passed an order dated 4.5.1998 enhancing punishment by
directing that the respondent be placed on the minimum/original scale
for five years. Aggrieved by the said orders of Disciplinary
Authority and Appellate ? Reviewing Authority, the respondent
raised industrial dispute which culminated into Reference (I.T.)
No.149 of 2003. During the proceedings before the learned Industrial
Court, the respondent admitted legality and propriety of the
departmental inquiry order, however, challenged the findings of the
Inquiry Officer.
6. Learned
Industrial Court has, upon adjudication of the Reference, passed
impugned award dated 30.11.2006, whereby the learned Court has set
aside the orders passed against the respondent. In other words, the
learned Industrial Court has, by the impugned order, wiped out the
punishment in toto and consequently, now there is no penalty imposed
on the respondent. Thus, being aggrieved by the said award, the
petitioner – Corporation is before this Court by way of present
petition.
7. Mrs.
Mandavia, learned advocate has taken this Court through the
charge-sheet, statements of the passengers as well as the statement
of the respondent and also through the findings of the Inquiry
Officer and submitted that the learned Industrial Court has committed
error in setting aside the penalty order as a result of which the
respondent as well as the misconduct would go without any punishment
whatsoever. She submitted that the statements of the passengers
conclusively demonstrated that the respondent collected fair, but
did not issue ticket. She also relied upon the statement made by the
respondent.
8. At
first blush, the said
submissions of Mr. Rathod, learned advocate, sounds attractive and he
appeared on good footing when he submitted that without examining or
verifying the cash, the Authority could not have reached to the
findings that amount was collected by the respondent. However,
statement made by the respondent before the checking team rings a
bell of caution and it comes out that Mr. Rathod seems to be
overlooking respondent’s statement. It is pertinent that in his
statement, the respondent appears to have admitted that the amount
from the said passengers was received and tickets were not issued and
he has tried to explain said statement by adding that he was in
process of issuing the tickets and the way bill was not closed and if
the checking team had not intervened at material point of time, he
would have issued tickets. In this view of the matter, it cannot be
said that the authorities have not given any attention to his
explanation or defence. The Authorities appear to be right in holding
that the said explanation was an after thought.
9. The
view that the respondents explanation is an after thought, gets
fortified by the statements of the passengers that the fair were
collected from them but tickets were not issued. The said statements
also establish that the tickets were not issued until arrival of the
destination of some of the passengers. From the conjoint reading of
the explanation of respondent and the statements of the passengers,
it transpires that the respondent has admitted both aspects namely
(a) fair were collected from seven passengers and (b) tickets were
not issued. In light of the fact that the bus had travelled almost
one K.M., it is difficult to accept the explanation of the respondent
and from the conspectus of the said aspect, it also become clear that
the explanation of the respondent is an excuse and after thought.
10. It
is also to be noted that the default card of the respondent discloses
that he has past record of almost 12 instances.
11.
Under the circumstances, the findings of the Inquiry Officer cannot
be said to be perverse as held by the learned Labour Court. Once it
is found and held that the finding of the Inquiry Officer are not
perverse and when the proceedings of the departmental inquiry are
admitted by the petitioner, then in that event, the order of the
learned Labour Court by which the Court set aside the order of the
Disciplinary Authority does not remain sustainable. This discussion
brings in picture the order of the Reviewing Authority. The Reviewing
Authority has enhanced the punishment imposed by the Disciplinary
Authority, but without recording any cogent and satisfactory reasons,
strong enough to dislodge the decision of the Disciplinary Authority.
Without recording good and sufficient reason as to how the order of
Disciplinary Authority was erroneous or inadequate, the Reviewing
Authority could not have mechanically interfered with the
Disciplinary Authority’s decision. There does not appear to be any
justifiable basis for reviewing authority to presume that the
respondent’s past record was not considered by the Disciplinary
Authority while deciding the quantum of penalty. In absence of any
reason, order of the Reviewing Authority is not sustainable, because
the Reviewing Authority has merely proceeded on the premise that the
respondent has unsatisfactory and tainted service recorded, however,
as mentioned above there was no justification for presuming that the
Disciplinary Authority did not consider the past record while
deciding quantum of punishment. Further the Reviewing Authority has
not recorded any reason, other than reference of past 12 instances,
for holding that the penalty imposed by the Disciplinary Authority is
inadequate. It is difficult to sustain such unreasoned order made on
presumptions that the history of 12 past instances was not kept in
mind by Disciplinary Authority.
12. Thus,
in above view of the matter, the award of the learned Labour Court
allowing Reference in toto, because of which the respondent would go
scott free and without any penalty, is not sustainable. Likewise the
order of the Reviewing Authority, enhancing penalty, without
recording any strong and good reasons for upsetting the order of
Disciplinary Authority and arriving at different conclusion as regard
the punishment is not sustainable. Under the circumstances, the award
of the learned Labour Court is set aside and the order of the
Disciplinary Authority is restored.
13. The
petitioner ? Corporation is directed to make payment of
differential amount, which may be payable after this order, within a
period of four weeks. The petition is, thus, partly allowed to the
aforesaid extent. Rule is made absolute to the aforesaid extent. No
order as to costs.
(K.M.THAKER,
J.)
ynvyas
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