SCA/9475/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9475 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 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 ? ========================================================= MANILAL BHARMAL CHUNARA - Petitioner(s) Versus DIVISIONAL CONTROLLER/DIRECTOR & 1 - Respondent(s) ========================================================= Appearance : MR BD DESARIA for Petitioner(s) : 1, None for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 21/07/2008 ORAL JUDGMENT In this petition, the petitioner, who was, at the relevant time, working as driver, has challenged award dated 3.5.2003 passed by the learned industrial tribunal in reference (IT) No.225 of 1999. SCA/9475/2008 2/6 JUDGMENT In the said reference the petitioner had challenged order dated 11.9.1997 directing that the petitioner be placed at the minimum / original stage of pay scale applicable to the category of driver. Mr. Desaria, Advocate appears for the petitioner. He submitted that the action of the departmental appellate authority of passing the order dated 11.9.1997 deserved to be set aside by the industrial tribunal because the said order dated 11.9.1997 resulted in economic death of the petitioner. He submitted that the said order dated 11.9.1997 is unjust and bad in law and should have been set aside by the learned tribunal, however, the learned tribunal arbitrarily rejected the reference. It appears from the record of present petition that in respect of certain misconduct associated with the discharge of his duties, the petitioner was served with a show cause notice / charge sheet dated 11.7.1996 pursuant to which, a departmental inquiry was conducted and thereafter, the disciplinary authority, after taking into account the record of SCA/9475/2008 3/6 JUDGMENT the departmental inquiry, the inquiry officer's report, the nature and gravity of misconduct and the findings of the inquiry officer, concluded that the charges levelled against the present petitioner was proved. The disciplinary authority, therefore, passed an order dismissing the petitioner from service. The petitioner, aggrieved by the said order, approached the departmental appellate authority. After considering the entire record and upon hearing the petitioner herein, the departmental appellate authority considered it appropriate to interfere with the quantum of penalty and that therefore, by the order dated 11.9.1997 modified the order of the disciplinary authority by directing that the petitioner be reinstated and he should also be granted continuity of service and the intervening period should be treated as “on-leave”. The departmental appellate authority, however, by way of penalty, for the misconduct which was held as proved, directed that the petitioner be placed at the minimum stage of the pay scale applicable to the category of driver. It was the said order that the petitioner SCA/9475/2008 4/6 JUDGMENT challenged before the learned tribunal. The learned tribunal, after considering the entire material on record and upon hearing the petitioner agreed with the findings that the charges of the misconduct levelled against the petitioner were proved. The learned tribunal also held that the petitioner workman had failed to produce any material in the departmental inquiry and even before it, to prove his innocence i.e. to prove that he was not guilty of the misconduct charged against him. The learned tribunal also held that considering the conduct of the petitioner, the original order by the disciplinary authority was, probably, justified. However, since the corporation had taken a lenient and sympathetic view in the matter, there was no justification for it to interfere with the order of the departmental appellate authority. Accordingly, after considering all the relevant facts and circumstances, the learned tribunal held that there was no justification to exercise powers under section 11(A) of the ID Act and therefore, the SCA/9475/2008 5/6 JUDGMENT learned tribunal rejected, and rightly so, the Reference. After considering the said award as well as the order of the disciplinary authority and the departmental appellate authority, this Court is of the view that the learned tribunal has not committed any error in rejecting the reference. The learned tribunal is right and justified in holding that the order of the departmental appellate authority did not warrant any interference. Thus, there is no justification to exercise jurisdiction under article 227 of the Constitution of India against the award dated 3.5.2003 passed by the learned tribunal. The learned tribunal has not committed any error of law or jurisdiction and the award does not suffer from any other apparent error also. Even otherwise, the departmental appellate authority itself modified the disciplinary authorities order by modifying and reducing the quantum of penalty. Unless the court, for good and valid reasons held that the penalty is too harsh and excessive and tentamount victimization, it is neither justified nor proper to put the quantum SCA/9475/2008 6/6 JUDGMENT of penalty in golden scale and to weigh it by its standard, and/or to reduce or increase it merely because the court feels that it is excessive or lenient. Hence, present petition does not deserve to be entertained. Accordingly, present petition is rejected. No order as to costs. [ K.M.Thaker, J. ] kdc/tfxps1