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SCA/1318/2010 8/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1318 of 2010
=========================================================
JORUBHA
TAPUBHAI DHANDHAL - Petitioner(s)
Versus
DIVISIONAL
CONTROLLER - Respondent(s)
=========================================================
Appearance
:
MR
JS BRAHMBHATT for
Petitioner(s) : 1,
MS SEJAL K MANDAVIA for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 10/05/2010
ORAL
ORDER
Heard
learned advocates appearing on behalf of respective parties.
This
Court has issued notice on 11th February 2010 for final
disposal in this matter.
The
petitioner conductor challenged the award passed by Industrial
Tribunal, Ahmedabad in Reference (IT) No.371 of 2002 Ex.33 dated 11th
December 2006, wherein, Reference has been rejected by Industrial
Tribunal, Ahmedabad.
It
is necessary to note that award passed by Industrial Tribunal on 11th
December 2006 challenged in present petition which has been filed on
5th February 2010. The reason for delay is explained in
Para 13 by petitioner.
According
to petitioner, he is in service of respondent Corporation as
Conductor since many years. On 4th October 1995, when he
was working at Deesa Depot of Palanpur Division and he was going to
resume his duty in bus route from Ahmedabad to Palanpur and after
leaving Ahmedabad city, near Ambikanagar on Highway, health of
conductor who was on duty Mr. P.B. Makwana in the said bus became in
deteriorate condition and he was required urgent medical treatment,
therefore, on being request made by him, present petitioner had
worked as conductor on his behalf in the same route on humanitarian
ground and conductor went to take medical treatment. The fact is that
the present petitioner has taken over the charge as a conductor
because original conductor, who was on route, had fallen sick. The
said bus was checked at Deesa Depot by checking inspector and during
checking, they could not found any irregularities, but, report was
made that without getting prior permission from Authority, the
petitioner had worked as a conductor in the bus in place of original
conductor Shri Makwana. On the basis of that report, charge-sheet
No.215 of 1995 was issued against petitioner by respondent
Corporation on 19th October 1995. On 6th
December 1995, reply was submitted by petitioner and thereafter,
departmental inquiry was initiated against petitioner. After
completion of departmental inquiry, according to petitioner, without
supplying findings, punishment order to withhold one year increment
with permanent effect is passed by competent authority on 3rd
January 1996.
Thereafter,
First Appeal preferred by petitioner was rejected by appellate
authority on 31st January 1997. Even Second Appeal was
also dismissed on 11st October 1998. Thereafter,
industrial dispute was raised against said punishment which was
referred for adjudication on 30th October 2002 and
Industrial Tribunal has rejected the said Reference on 11th
December 2006.
Learned
advocate Mr. Brahmbhatt has raised number of contentions before this
Court. He emphasised that according to charge-sheet issued by
Corporation, petitioner has not committed breach of administrative
circular and not committed misconduct under Rule 22. He made
submissions mainly based on technical aspect ignoring substance of
matter. He submitted that competent authority has not appreciated the
help which has been extended by petitioner in favour of conductor who
was fallen all of sudden sick and he was travelling in the same bus
took over the charge of conductor without prior permission, but,
there was no bad intention on the part of petitioner. He challenged
legality and validity of departmental inquiry in present petition
raising contentions in Para 9 and 10. He submitted that Industrial
Tribunal has committed gross error in not exercising the powers under
Sec.11A of the Industrial Disputes Act, 1947. He submitted that
burden lies upon Management to establish the alleged charge by
leading proper evidence in departmental inquiry. But, before inquiry
officer, no one was examined for proving charge against workman. He
submitted that statement of driver was considered against workman
present petitioner without examining the driver in inquiry,
therefore, finding which has been given by competent authority is
vitiated, baseless and perverse. That aspect has not been properly
considered by Industrial Tribunal, Ahmedabad. In short his submission
is that Industrial Tribunal has committed gross error in rejecting
Reference referred by appropriate Government.
Learned
advocate Ms. S.K. Mandavia appearing on behalf of Corporation
submitted that before Industrial Tribunal, written statement was
filed by Corporation at Ex.9 and by Ex.31 purshis, legality and
validity of departmental inquiry was not challenged by petitioner,
except to challenge the finding given by competent authority. She
submitted that petitioner has not led any oral evidence before
Industrial Tribunal and documents which have been produced by
Corporation have been admitted and accordingly, all the documents are
exhibited because of no objection given by petitioner’s advocate. She
submitted that Industrial Tribunal has given findings in Para 9 on
the basis of records produced by Corporation. The Industrial Tribunal
has come to conclusion that on the date on which incident occurred
4th October 1995 when bus was checked by checking staff,
at that occasion, this petitioner was found on duty being an
unauthorised person and for that, no prior permission has been
obtained from any Authority by petitioner. She submitted that to
obtain the tray and traffic cash of other conductor and issued
tickets to passengers by petitioner without prior permission, which
itself is serious misconduct to be proved by admission of
petitioner. She submitted that in departmental inquiry, Reporter was
not examined because a question which was asked to petitioner whether
he wants to cross-examine the reporter or not ? The answer is given
as ‘NO’, therefore, report has been admitted by petitioner. Against
the defense raised by petitioner, she submitted that driver
Kishorsinh P. Vihol, Badge No.36592 who has given statement at Deesa
to checking staff and according to his statement, Shri P.B. Makwana
was not found on duty in the bus and in his place, present petitioner
was performing duty as a conductor, but, driver was not aware about
the facts whether Shri P.B. Makwana, conductor was fallen sick near
Ambikanagar to Kalol or not. Therefore, a question was asked to
conductor present petitioner whether statement was given by
driver is correct or not ? The answer is given as ‘YES’. Therefore,
she submitted that relying upon such evidence, competent authority
has rightly decided matter and examined it and rightly come to
conclusion that misconduct is found to be proved on the basis of
material which were placed before competent authority. Therefore, she
submitted that whatever contentions raised before this Court in
present petition after a period of four years, such challenge should
not have to be entertained by this Court and reason which has been
given for delay cannot consider to be a genuine and sufficient cause
and first time, such contentions have been raised by petitioner in
present petition and similar contentions were not raised by
petitioner before Industrial Tribunal, therefore, she submitted that
Industrial Tribunal has not committed any error which requires
interference by this Court.
I
have considered submissions made by learned advocates appearing on
behalf of respective parties. I have also perused the award passed by
Industrial Tribunal, Ahmedabad. The facts remain that on the date of
incident 4th October 1995, when petitioner was travelling
in the bus No.3508 on the route of Ahmedabad to Deesa and in that ST
Bus, regular conductor was Shri P.B. Makwana, Badge No.25227 and
because of he had fallen sick all of sudden, present petitioner
unauthorisedly, without obtaining any prior permission from
respective authorities issued tickets to passengers from the tray of
conductor Mr. Makwana and also recover the fare from passengers which
was deposited by present petitioner in traffic cash at Deesa Depot,
but, one fact has been admitted by workman present petitioner
that it was unauthorised trip completed by present petitioner because
Shri P.B. Makwana, conductor had fallen sick on duty. The reason for
unauthorised duty which has been performed by petitioner may be
genuine, but, for that also, it is subject to comply administrative
circular which includes prior permission from such authority. No
prior permission was obtained by petitioner from any other authority
including Depot Manager of Kalol and without such authority,
unauthorisedly taken over a tray of tickets and completed booking
upto Deesa and at the time when checking was taken place, conductor
Shri P.B. Makwana was not found by checking staff, therefore, report
was submitted against present petitioner and in departmental inquiry,
reporter was to be examined, but, when question was asked to present
petitioner whether he wants to cross-examine the reporter or not ?
The answer is given by him as ‘NO’, means, present petitioner is not
disputed the report submitted by checking staff. Therefore, report
submitted by reporter is also considered to be an evidence. The
reason is that the petitioner does not want to cross-examine the
reporter in departmental inquiry. The statement of driver Kishorsinh
P. Vihol was also accepted by him. Therefore, question to examine him
in departmental inquiry does not arise. The legality and validity of
departmental inquiry was admitted by petitioner, therefore, whatever
contentions raised in present petition by petitioner, were not raised
before Industrial Tribunal, therefore, such contentions cannot be
accepted by this Court which have been raised first time before this
Court. The finding given by inquiry officer is also based on legal
evidence. The inquiry officer has relied upon report submitted by
reporter who was not to be cross-examined by petitioner as per reply
given by petitioner to inquiry officer and statement of driver
Kishorsinh P. Vihol was admitted by him, means, fact remains that on
the date of incident, whether driver Shri Makwana had fallen sick or
not ? That fact has not been proved by way of defence before inquiry
officer. The petitioner has not proved his defence before inquiry
officer. The charge levied against him was proved on the basis of
report and statement of driver Kishorsinh P. Vihol. Apart from that,
this being an undisputed fact that present petitioner without prior
permission performed the duty as an unauthorised conductor in place
of original conductor Shri Makwana upto Deesa, which itself is a
serious misconduct committed by petitioner which has been rightly
established against present petitioner in inquiry. Thereafter,
competent authority has rightly imposed punishment considering
defence of present petitioner, so that, in future, petitioner may
improve his such conduct. The competent authority has also considered
medical certificate produced by petitioner of conductor Shri Makwana.
Therefore,
According to my opinion, the punishment of stoppage of one year
increment with cumulative effect can not consider to be
disproportionate or unjust punishment, so it is required to be
exercised the powers by Industrial Tribunal under Sec.11A of the
Industrial Disputes Act, 1947. Therefore, contentions which have been
raised by learned Mr. Brahmbhatt cannot be accepted, hence, rejected.
According to my opinion, Industrial Tribunal, Ahmedabad has not
committed any error which requires interference by this Court under
Article 227 of the Constitution of India.
Hence,
there is no substance in present petition, accordingly, present
petition is dismissed.
[H.K.
RATHOD, J.]
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