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SCA/9715/2008 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9715 of 2008
=========================================================
JAMNAGAR
MUNICIPAL CORPORATION - Petitioner(s)
Versus
NARSIDAS
SONIGRA - Respondent(s)
=========================================================
Appearance
:
MR
AR Thakkar, for Mr. JR NANAVATI for
Petitioner(s) : 1,
Mr. Mukesh Dave for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 04/08/2008
ORAL ORDER
In
this petition, the petitioner has challenged an order dated 3.1.2008
whereby the Labour Court has directed the petitioner, Municipal
Corporation to pay 50% of the amount which would become payable on
account of the Industrial Tribunal having set aside the order of
penalty whereby 3 increments with permanent effect were stopped.
2. In
the Reference, the respondent herein had challenged the order of
penalty imposed by the Corporation whereby the competent authority
had imposed penalty of stoppage of 3 increments with effect from
3.5.1989 with permanent effect. The Labour Court, on the ground that
the corporation did not produce on record of the Reference
proceedings the material of the departmental enquiry and/or report of
the Enquiry Officer on the basis of which the penalty was imposed,
set aside the penalty order holding that the corporation failed to
establish the charges.
3. Mr
AR Thakkar appears for the petitioner corporation and Mr. Mukesh Dave
appears for the respondent.
4. Mr.
Thakkar submitted that initially the Reference was dismissed for
non-prosecution on account of respondent’s absence during the
Reference proceedings and after a long lapse the Reference
proceedings came to be restored. On account of dismissal of
Reference, though for non-prosecution, and in view of the delay in
the restoration of proceedings, in which process almost 9 years were
lost, the Corporation did not maintain the record of the enquiry
proceedings and consequently during the stage of evidence it could
not produce the record of the enquiry proceedings or the report of
the Enquiry Officer, and that therefore it was not just or proper to
hold Corporation responsible or to put the fault on shoulders of
Corporation, instead of workman who was responsible for delay of 9
years. Mr. Thakkar further submitted that in such circumstances
merely because the Corporation could not produce the record of the
departmental enquiry or the report of the Enquiry Officer the learned
Tribunal ought not to have concluded that the charge was not proved.
He submitted that actually the order of the disciplinary authority is
a well-reasoned and speaking order wherein the entire details of the
misconduct as well as evidence etc., are recorded, and on perusal of
the said order the details regarding the charges and evidence becomes
very much clear and the learned Tribunal ought to have taken the said
aspects into consideration. He also submitted that the charge
levelled against the respondent was in nature of misappropriation
inasmuch as the respondent did not issue tickets after collecting
fare from the passengers. He elaborately read the disciplinary
authority’s order wherein the details about the charge and evidence
are recorded and on that basis he submitted that it is evident that
the charge was proved with help of cogent evidence.
5. On
the other hand, Mr. Mukesh Dave, for respondent, vehemently supported
the impugned order dated 3.1.2008 and submitted that the Industrial
Tribunal is right and justified in holding that the Corporation has
failed to prove the charges against the respondent.
6. While
considering the submissions of the contesting parties, it was
enquired from the petitioner as to what would be the financial burden
on the Corporation if the impugned award is not interfered with. In
response to that, Mr. Thakkar, learned advocate for the petitioner
placed on record a communication dated 30.7.2008 as per which Rs.
12,500/- would be the 100% amount which would become payable in the
event the penalty imposed by the Corporation is set aside, however
the learned tribunal has granted only 50% of the said amount, and
that therefore the amount which would become payable if the award is
not set aside would come around Rs. 6000/-. When the Court enquired
with Mr. Thakkar as to why should the High Court in exercise of
jurisdiction under Article 226 & 227 interfere with the award
considering the amount which becomes payable is so trivial, i.e.,
only Rs. 6000/-, Mr. Mukesh Dave for respondent submitted that so as
to put an end to the litigation and to avoid further litigation the
respondent is ready and willing to accept Rs. 5000/- as full and
final settlement of the litigation. The petitioner corporation was
asked to consider the said suggestions of respondent and subsequently
Mr. Thakkar has informed this Court that the petitioner Corporation
would be ready and willing to pay Rs. 5000/- to the respondent only
as an exceptional case and without forming precedent in full and
final settlement of the dispute involved in the matter only with a
view to putting an end to this litigation and if the award is
modified to that extent.
7. This
Court is conscious of the fact that if considered as proved the
charge against respondent is of serious nature and it normally would
not warrant or justify interference however considering the fact that
the employee has already retired and also considering that the Court
has not got opportunity to examine the material of departmental
inquiry and the findings of the Enquiry Officer and the respondent
did not get the opportunity to substantiate h is contention and upon
considering the consensus between the parties, the impugned award,
with the consent of both sides and as an exceptional case without
forming precedent, is modified and the petitioner corporation is
directed to pay an amount of Rs. 5,000/- in full and final settlement
and discharge of the obligation by way of the award. The impugned
award stands modified to the aforesaid extent. The petition stands
disposed of accordingly. It is hoped that the Corporation will make
the said payment within a period of 3 weeks from the date of receipt
of the award.
[
K.M. Thaker, J. ]
rmr.
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