Gujarat High Court Case Information System
Print
SCA/3636/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3636 of 2010
=========================================================
S
I MAKARANI - Petitioner(s)
Versus
DIVISIONAL
CONTROLLER - Respondent(s)
=========================================================
Appearance
:
MR
NK MAJMUDAR for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 08/04/2010
ORAL
ORDER
1. Heard
learned advocate Mr.N.K.Majmudar for petitioner.
2. In
present petition, the petitioner has challenged award passed by
Industrial Tribunal, Baroda in Reference (IT) No.117 of 1999, dated
25.10.2004 whereby reference has been rejected by Industrial
Tribunal, Baroda.
3. Learned
advocate Mr.Majmudar submitted that petitioner was working as
Conductor with respondent Corporation. On 9.4.1996 when
petitioner was on duty from Pavagadh to Baroda route, the Checking
Officer has carried out checking of the bus. It was alleged against
petitioner that petitioner had issued 5 unpunched tickets being
Nos.9910069 to 9910073 of Rs.7.50 ps. denomination and even same was
not shown in the way bill. On 27.4.1996, charge sheet was issued to
the petitioner and after completion of departmental proceedings,
ultimately petitioner was held guilty and dismissed from service on
15.2.1996. Against dismissal order, departmental first appeal was
preferred by petitioner wherein the first appellate authority by an
order dated 25.5.1998 modified the punishment of dismissal and
petitioner was ordered to be reinstated in service with continuity of
service and it was decided to treat the period of dismissal as leave
without pay and it was also held that the petitioner is not entitled
to get any financial benefit for the period of dismissal and he was
ordered to be reinstated on original pay scale of conductor.
Thereafter, industrial dispute was raised by petitioner challenging
order passed by first appellate authority which was adversely
affected right of petitioner which referred for adjudication to
Industrial Tribunal, Baroda and registered as Reference (IT) No.117
of 1999. The reply was filed by respondent Corporation and denied
the averments made in statement of claim by petitioner. The
Industrial Tribunal, Baroda has dismissed the said Reference on
25.10.2004. Therefore, he submitted that petitioner has not committed
any irregularity and it was absolutely false allegations were
levelled against petitioner by Corporation. Therefore, Industrial
Tribunal, Baroda has committed gross error in not interfering with
punishment imposed by first appellate authority. Therefore, present
petition is filed.
4. I
have considered submissions made by learned advocate Mr.Majmudar and
also perused the award passed by Industrial Tribunal, Baroda. It is
necessary to note that present petition has been preferred by
petitioner after a period of six years from date of award passed by
Industrial Tribunal, Baroda. The Reference (IT) No.117 of 1998 was
dismissed on 25.10.2004 and therefore, SCA is preferred on 1.2.2010.
Therefore, there is six years’ delay in filing present petition by
petitioner. The petitioner has not explained delay in filing present
petition. There is no averment made by petitioner in present petition
as to why delay has been occurred in filing present petition.
Therefore, in absence of explanation about more than 6 years’ delay,
this petition cannot be entertained by this Court only on that ground
in view of decision of this Court reported 2006 (2) GLH 472 and also
the decision of Apex Court reported in 2006 SCC *L&S) 791.
5. Apart
from that, allegations which are made against present petitioner
where on 9.4.1996 when petitioner was on route from Pavagadh to
Baroda, he has issued unpunched tickets of Rs.7.50 ps. denomination
to passenger after seeing checking staff and on the spot statement,
petitioner has admitted misconduct in presence of checking staff.
Thereafter, charge sheet was served to petitioner and after
completion of departmental inquiry, the petitioner was dismissed from
service. In departmental appeal, petitioner was given an opportunity
to improve the conduct and reinstated without back wages of interim
period and with punishment of minimum scale of conductor category.
Before Industrial Tribunal, Baroda, legality and validity of
departmental inquiry was not challenged by petitioner. The written
statement was filed by Corporation vide Exh.9 raising contention that
petitioner has committed misconduct of dishonesty and
mis-appropriation which was found to be proved in departmental
inquiry and thereafter, giving reasonable opportunity of hearing, he
was dismissed from service. Before Industrial Tribunal, Baroda, vide
Exh.12 pursis was given by petitioner that petitioner is not
challenging legality and validity of departmental inquiry but,
challenging legality and validity of finding. The Corporation has
produced papers of departmental inquiry vide Exh.11 and Industrial
Tribunal, Baroda has considered spot statement given by petitioner
where admission was made by him that at the time of checking, after
seeing checking staff, hurriedly punch was made in ticket which
tickets were taken back by checking staff and after recovering
Rs.101/- from passenger, 5 adults and 3 children, Rs.40/- has been
given back to the passenger. But tickets were not issued upto
checking point and these tickets were not shown as sold in way bill
and punch is also not properly made. Therefore, considering spot
statement of petitioner, Industrial Tribunal, Baroda has come to
conclusion that charge levelled against petitioner are found to be
proved in departmental inquiry and finding which was recorded by
Inquiry Officer is also legal and valid and it is the case of
dishonesty and mis-appropriation committed by petitioner and admitted
by petitioner in spot statement. Therefore, no interference is
required because one opportunity has been given by first appellate
authority giving reinstatement without back wages of interim period
and put in minimum time scale of conductor category. Therefore, no
further interference is required while exercising powers under
Section 11A of the I.D.Act,1947.
6. Therefore,
according to my opinion, the Industrial Tribunal, Baroda has rightly
not interfered with punishment imposed by first appellate authority
and it is a clear case of dishonesty and mis-appropriation, which was
admitted by petitioner before the checking staff while giving spot
statement. Therefore, considering recent decision of Apex Court in
case of Kamruddin reported in 2009 AIR SCW 4410 and 2004 AIR SCW
7850, contentions raised by learned advocate Mr.Majmudar cannot be
accepted and hence, rejected. Therefore, Industrial Tribunal,
Baroda has not committed any error which requires interference by
this Court while exercising powers under Article 227 of the
Constitution of India. Therefore, on both ground; unexplained delay
of six years in filing present petition and misconduct of dishonesty
and mis-appropriation, which is proved as per finding given by
Industrial Tribunal, Baroda, present petition cannot be entertained
by this Court. Therefore, there is no substance in present petition.
Accordingly, present petition is dismissed.
(H.K.RATHOD,J.)
(vipul)
Top