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LPA/602/2003 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 602 of 2003
In
SPECIAL
CIVIL APPLICATION No. 5060 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
HONOURABLE
MR.JUSTICE K.A.PUJ
=========================================
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 CORPORATION - Appellant(s)
Versus
SHASHIKANT
V BHATT & 1 - Respondent(s)
=========================================
Appearance :
MR
HARDIK C RAWAL for
Appellant(s) : 1,
MR PH PATHAK for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 29/04/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. The
appellant has invoked Clause 15 of the Letters Patent to challenge
decision dated 07.03.2002 of learned Single Judge of this Court in
Special Civil Application No. 5060 of 1999.
2. Relevant
facts of the matter are that, the appellant-Corporation had issued
charge-sheet and initiated departmental inquiry against the
respondent in the year 1980. After a full-fledged inquiry and finding
of serious misconduct on the part of the respondent, an order of
punishment was made, which was taken in review by the appellant
itself and finally, the respondent was visited
with punishment of stoppage of four increments with permanent effect.
After exhausting departmental appeals, respondent had approached the
Industrial Tribunal with Reference in the year 1985 which was
registered as Reference (I.T.) No. 99 of 1991. Thereafter, another
Reference for the same dispute appears to have been made which came
to be registered as Reference (I.T.) No. 71 of 1997. The Industrial
Tribunal, Bhavnagar, consolidated both the References, and by the
award dated 14.09.1998, set aside the order of punishment only on the
ground that the appellant had failed to produce record of the
departmental inquiry, due to which adverse inference had to be drawn
against the appellant. When that awarded and order of the Industrial
Tribunal was challenged before learned Single Judge of this Court,
the petition was dismissed by the impugned order.
3. There
is no dispute about the fact that the departmental inquiry against
the respondent, for the charge of re-issuing tickets to
five passengers, was initiated in the year 1980 and both the
reference cases pending before the Tribunal had remained dormant
till the year 1997.
It was on 31.07.1997 that the respondent obtained an order for
production of the record of inquiry and the record could not be
produced on account of it having been destroyed in the meantime. On
the other hand, the respondent himself had submitted a pursis before
the Tribunal to state that he was not challenging legality of the
inquiry proceeding but only the finding and the punishment were
called into question.
4. It
is clear from the peculiar facts of the case that not only that the
respondent had his dispute referred twice but the first Reference
remained pending in the Tribunal for seven years. It was nearly after
fifteen years of the disciplinary action that the record was called
upon to be produced. Thus, the respondent stood to benefit from the
unexplained delay in the proceedings before the Industrial Tribunal.
Even as the appellant would have so many cases pending against it and
so much other records to preserve, the respondent would have his own
record of the inquiry and proceedings and he ought to have produced
them before the
Tribunal to discharge the primary burden of evidence which rested on
him. Instead, practically even in absence of any evidence in favour
of the respondent and only on the basis of the failure of the
appellant to produce the record that the award was made by the
Tribunal. Therefore, the award was required to be set aside as
perverse and illegal.
5. Learned
Single Judge erred in observing, while upholding the award, that the
Tribunal had no other option, in absence of the
record, but to pass the appropriate order granting relief in favour
of the respondent-workman. The Tribunal was required to resolve the
industrial dispute in a reasonable and rational manner, taking into
consideration all the relevant facts including the fact of the
respondent having delayed his demand for the documents till the fag
end of the proceeding before the Tribunal.
6. It
was vehemently argued by learned counsel, Mr. Pathak that an officer
of the appellant had admitted in his deposition before the Tribunal
that as long las the departmental appeals were pending, the records
were not destroyed and it was within six months of such departmental
proceedings that reference of the industrial dispute was made.
Therefore, the appellants were not justified in not producing the
record of the departmental inquiry, according to his submission.
However, such contention could not derogate from the fact that
excessive time had elapsed before the respondent first demanded the
record and he himself could have produced the relevant documents
which he ought to have preserved.
7. In
the facts and for the reasons discussed hereinabove, the appeal is
allowed. The impugned judgement of learned Single Judge passed in
Special Civil Application No. 5060 of 1999 as well as the award and
order dated 14.09.1998 of the Industrial Tribunal, Bhavnagar, in
reference (I.T.) No. 99 of 1991 and Reference (I.T.) No. 71 of 1997
are set aside with no order as to costs.
[D.H.WAGHELA,
J.]
[K.
A. PUJ, J.]
JYOTI
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