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SCA/5164/2011 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5164 of 2011
=========================================
NARANBHAI
BHEMABHAI PARMAR - Petitioner(s)
Versus
DIVISIONAL
DIRECTOR - Respondent(s)
=========================================
Appearance :
MR
SP MAJMUDAR for
Petitioner(s) : 1,MRKIRITVCHAUDHARI for Petitioner(s) : 1,
None
for Respondent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 06/05/2011
ORAL
ORDER
1. Heard
learned advocate Mr.S.P.Majmudar for petitioner.
2. In
this petition, petitioner – Shri Naranbhai B. Parmar, has
challenged award passed by Labour Court, Mehsana in Reference No.843
of 2008 (Old No.18/2007), Exh.24, dated 13.10.2010, whereby, Labour
Court has dismissed Reference filed by petitioner.
3. Learned
advocate Mr.Majmudar appearing on behalf of petitioner submitted that
departmental inquiry admitted by petitioner – workman but, petitioner
has challenged legality and validity of finding which has not been
properly examined by Labour Court while exercising powers under
Section 11A of I.D.Act,1947. He also submitted that punishment of
dismissal in case when conductor has received amount of fare and not
issued tickets, is considered to be a harsh punishment and therefore,
it is required to be modified by this Court. He also submitted that
at the time when bus was checked by checking staff, in all 29
passengers were travelling and bus was local and it was a night time
and way bill of conductor was open. Therefore, conductor was on
process of issuing tickets, meanwhile bus was checked. Therefore,
there was no bad intention of workman. He also submitted that
reasoning given by Labour Court that if bus was not checked by
checking staff, then conductor may misappropriate aforesaid amount of
fare received from passengers. Therefore, reasoning which has been
given is based on presumption and for that, Labour Court has
committed gross error in rejecting reference filed by workman. Except
that, no other submission is made by learned advocate Mr.Majmudar.
4. I
have considered submissions made by learned advocate Mr.Majmudar and
also perused award in question. The petitioner was working as a
conductor with Corporation since more than 20 years according to
statement of claim filed by petitioner before Labour Court at Exh.8.
The bus of petitioner was checked by checking staff on 25.9.1998 when
he was on route from Vadnagar-Jalampur
and bus was checked at Dharoi colony, at that occasion passengers
were found without tickets, though fare was collected by petitioner –
conductor. Therefore, charge-sheet was served to workman and
thereafter, he was transferred to Vadnagar
Depot to Kadi Depot. and then, he was dismissed from service
on 15.6.2004.
5. Before
Labour Court, petitioner – workman has not challenged legality
and validity of departmental inquiry but, has challenged only finding
given by Inquiry Officer. The respondent – Corporation has
filed reply Exh.9 denying averments made by petitioner in statement
of claim. The respondent – Corporation has produced certain
documents on record vide list Exh.10, Exh.10/1 to 10/9 which has been
given pakka Exh.12 to Exh.20. The Corporation has produced entire
record of departmental inquiry including default card. The pursis was
filed by workman Exh.11 not challenging legality and validity of
departmental inquiry. Thereafter, workman was examined vide Exh.21
and on behalf of Corporation, no oral evidence has been led because
papers of departmental inquiry are exhibited before Labour Court. The
Labour Court has considered allegations made against workman when bus
was checked on 25.9.1998. At the time of checking, three different
group of passengers comes to 26, who were traveling from Vav to Mahor
Patiya and from them, fare was collected by conductor which amount
comes to Rs.78/-. Even at the point of time of checking tickets were
not given or issued by conductor to concerned passengers. Therefore,
statements of passengers were recorded on the spot by checking staff.
But that statement was not signed by conductor and refused it. The
petitioner conductor has misbehaved with checking staff when the bus
was checked by checking staff. The Labour Court after appreciating
entire evidence which has been produced by Corporation and exhibited
before Labour Court, come to conclusion that finding recorded by
Inquiry Officer cannot consider to be a baseless and perverse. The
spot statement of petitioner which was recorded on 25.9.1998 when bus
was checked by checking staff Exh.12/6 wherein signature of driver
was also obtained and statement of passengers Exh.12/1 to 12/5
recorded by checking staff, that has been proved by reporter while
giving evidence in departmental inquiry. In spot statement given by
passenger where specific allegations were made against conductor that
amount of fare was paid to conductor at the time when they boarded in
the bus, even though upto checking point after recovering fare,
conductor has not issued tickets to passengers.
6. The
contention which has been raised by advocate of conductor before
Labour Court that passengers were not examined in departmental
inquiry. That has been considered by labour Court while relying upon
decision of Apex Court in case of State of Haryana v. Ratan Sinh,
reported in AIR 1977 SC 1512 and a decision reported in 1998 2 GLR
193. Therefore, Labour Court has come to conclusion that as per Rules
of Corporation, without issuing tickets by conductor, bus should not
have to be started. Therefore, Labour Court has come to conclusion
that conductor has misappropriated amount of fare received from
passengers and not issued tickets. This being a serious misconduct
committed by petitioner – workman. The default card has been
considered Exh.18 in which in all 23 misconducts in past committed by
workman. Earlier also, he was dismissed from service and looking to
present misconduct which is found to be proved against conductor,
Labour Court has thought it fit not to exercise powers under Section
11-A of I.D.Act,1947 because Labour Court is satisfied that
punishment of dismissal is not disproportionate looking to gravity of
misconduct committed by workman.
7. The
Labour Court has considered decisions of Apex Court in case of Punjab
& Others v. Ram Sinh, reported in JT 1992 (4) SC 253;, Municipal
Corporation, Bahadurgadh v. Krishnan Bihari, reported in 1997 (73)
FLR 1429; Janta Bazar South Canara Central Co-op. Wholesale Stores
Ltd. and Others v. Secretary, Sahkari Sangh and others, reported in
2000 (2) LLJ 395; UPSRTC v. Mohanlal Gupta and Others, reported in
2001 LLR 1154; a decision reported in AIR 2003 SC 1462; UPSRTC, Itawa
v. Hotilal and Others, reported in 2003 (96) FLR 1076; North-West
KSRTC, Hubli v. S.S. Polecy, reported in 2001 (88) FLR 254;
Divisional Controller, KSRTC v. A. Timani, reported in (2005) 3 SCC
254; Union of India & Anr. v. S.S. Ahuvadlla, reported in 2007
(2) CLR 391; recent decision of Apex Court in case of UPSRTC v.
Nanhelal Kushawa, reported in 2009 LLR 1149 and thereafter, recent
decision of Apex Court in case of UPSRTC v. Sureshchand Sharma,
reported in 2010 LLR 760. After considering all decisions wherein
Apex Court has held that in case of dishonesty, corruption and
misappropriation if it is found to be proved against workman, that is
to be considered being a serious misconduct and in such
circumstances, punishment of dismissal cannot be held to be
disproportionate. The Labour Court is having a limited power under
Section-11A of I.D.Act,1947 in case when conductor lost confidence of
Corporation and misappropriated amount of fare means revenue of
Corporation and in such circumstances, labour Court has rightly
satisfied that not to exercise powers under Section 11A of
I.D.Act,1947 because punishment of dismissal in such circumstances
cannot consider to be disproportionate or unjust.
8. In
case of UPSRTC v. Sureshchand Sharma, reported in 2010 (6) SCC 555,
which decision is also considered by labour Court, the Apex Court has
observed in Para.21, 22, 23, 24 are under :
“21. We
do not find any force in the submissions made by Dr. J.N.Dubey,
learned Senior Counsel for the employee that for embezzlement
of such a petty amount, punishment of dismissal could not be
justified for the reason that it is not the amount embezzled by
a delinquent employee but the mens rea to mis- appropriate the public
money.
22. In
Municipal Committee, Bahadurgarh Vs. Krishnan Bihari & Ors., AIR
1996 SC 1249, this Court held as under:-
“4. In
a case of such nature – indeed, in cases involving corruption –
there cannot be any other punishment than dismissal. Any sympathy
shown in such cases is totally uncalled for and opposed to public
interest. The amount misappropriated may be small or large; it is the
act of misappropriation that is relevant.”
Similar
view has been reiterated by this Court in Ruston & Hornsby
(I) Ltd. Vs. T.B. Kadam, AIR 1975 SC 2025;
U.P. State Road Transport Corporation Vs. Basudeo Chaudhary &
Anr., (1997) 11 SCC 370; Janatha Bazar (South Kanara
Central Cooperative Wholesale Stores Ltd.) & Ors. Vs.
Secretary, Sahakari Noukarara Sangha & Ors., (2000) 7 SCC 517;
Karnataka State Road Transport Corporation Vs. B.S. Hullikatti,
AIR 2001 SC 930; and Regional Manager,
R.S.R.T.C. Vs. Ghanshyam Sharma, (2002) 10 SCC 330.
23. In
Divisional Controller N.E.K.R.T.C. Vs. H. Amaresh, AIR 2006 SC 2730;
and U.P.S.R.T.C. Vs. Vinod Kumar, (2008) 1 SCC 115, this Court held
that the punishment should always be proportionate to the gravity
of the misconduct. However, in a case
of corruption/misappropriation, the only punishment is dismissal.
24. Thus,
in view of the above, the contention raised on behalf of the employee
that punishment of dismissal from service was disproportionate to the
proved delinquency of the employee, is not worth acceptance.
25.
The Appeal preferred by the Corporation I.e. Civil Appeal No. 3086 of
2007 is allowed. The judgment and order of the High Court dated
7.9.2005 is hereby set aside and the Award of the Labour Court dated
28.4.1995 is restored. The appeal preferred by the employee I.e.
Civil Appeal No.3088 of 2007 is hereby dismissed. No order as to
costs.”
9. In
light of various decisions of Apex Court based on same misconduct,
corruption, dishonesty and misappropriation found to be proved
against workman, in such circumstances no interference is required to
be made by Labour Court while exercising powers under Section 11-A of
I.D.Act,1947. For that according to my opinion, contentions raised by
learned advocate Mr.Majmudar cannot be accepted. In departmental
inquiry because of evidence given by reporter and number of
statements given by passengers as well as spot statement given by
conductor – present petitioner wherein signature of driver was
there and in that statement, conductor has admitted misconduct of
collecting fare and not issuing tickets to passengers upto checking
point. This being a sufficient evidence led in departmental inquiry
and finding is based on such documents, cannot consider to be
baseless and perverse. Therefore, contentions raised by learned
advocate Mr.Majmudar that finding given by Inquiry Officer is
baseless and perverse, cannot be accepted. According to my opinion,
Labour Court has rightly examined issue while adjudicating
reference. For that, Labour Court has not committed any error which
requires interference by this Court while exercising powers 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. ]
(vipul)
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