LPA/1909/2007 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1909 of 2007 In SPECIAL CIVIL APPLICATION No.1390 of 2004 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT 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 ? ========================================================= SHANTILAL D. BHAVSAR - Appellant(s) Versus GUJARAT STATE ROAD TRANSPORT CORPORATION - Respondent(s) ========================================================= Appearance : MRS NISHA M PARIKH for Appellant(s) : 1, MS SEJAL K MANDAVIA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 08/04/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) Heard the learned advocates. With the consent of LPA/1909/2007 2/9 JUDGMENT the learned advocates, the Appeal is heard and finally decided by this order. Feeling aggrieved by the common judgment and order dated 14th February, 2006 passed by the learned Single Judge in Special Civil Application No.14131 of 2003 and Special Civil Application No.1390 of 2004, the workman has preferred the present Appeal under Clause 15 of the Letters Patent in so far as the Special Civil Application No.1390 of 2004 preferred by the workman has been dismissed. Though the workman has not preferred appeal against the judgment of the learned Single Judge in so far as Special Civil Application No.14131 of 2003 preferred by the respondent – Gujarat State Road Transport Corporation has been allowed, we have examined the record of both the writ petitions and have entertained this Appeal also against the impugned judgment in so far as the Special Civil Application No.14131 of 2003 is allowed. The appellant – workman, now retired from service, was employed by the respondent – Gujarat LPA/1909/2007 3/9 JUDGMENT State Road Transport Corporation (hereinafter referred to as “the Corporation”) as a conductor. On 20th July, 1994 when the appellant was on duty en route Ranakpur - Ahmedabad on bus No.3196 spot checking was carried out. At that time the appellant was found to have collected a sum of Rs.4/- from two passengers as against the bus fare of Rs.5/- and had not issued tickets to the said two passengers. The traffic cash and the personal cash carried by the appellant was also found to be in deficit. For the said acts of misconduct, a disciplinary proceeding was initiated against the appellant. He was charged for (i) not issuing tickets worth Rs.5/- to two passengers and in collecting Rs.4/- from the said passengers without issuing tickets; (ii) for raising dispute with the reporting officer; (iii) for deficit in traffic cash as well as personal cash; and (iv) for not filling in the way bill in accordance with the rules. The said charges were held to be proved. For the said acts of misconduct and considering his past record of 58 defaults, by order dated 24th May, 1995 made by the disciplinary authority, the appellant was visited with punishment of withholding LPA/1909/2007 4/9 JUDGMENT of four increments with future effect. The said order was confirmed in departmental appeal. Feeling aggrieved, the appellant raised industrial dispute which came to be referred to the Industrial Tribunal, Ahmedabad and registered as Reference (IT) No.262 of 1998. The reference was contested by the Corporation. The learned tribunal by its judgment and award dated 7th February, 2003 allowed the reference in as much as the learned tribunal held that the disciplinary authority had erred in holding the workman guilty. His defence ought to have been believed by the disciplinary authority. The fact that the traffic cash and personal cash carried by the appellant was in deficit did not establish that he had collected the fare from the passengers without issuing tickets or that it was a case of misappropriation of the fund of the Corporation. In view of the said finding recorded by the learned tribunal, the order of punishment made against the appellant was ordered to be set aside. The learned tribunal, however, did not grant consequential relief. LPA/1909/2007 5/9 JUDGMENT Feeling aggrieved, the Corporation preferred above Special Civil Application No.14131 of 2003 and the appellant preferred above Special Civil Application No.1390 of 2004. Both the petitions were heard by the learned Single Judge. By common judgment dated 14th February, 2006, the learned Single Judge held that “I am of the opinion that the disciplinary authority of the petitioner Corporation is the best judge to consider the suitability of awarding punishment in order to control the discipline within the Corporation and the tribunal ought to have also considered the past defaults of the respondent which is 58 in number.” Having observed thus, the learned Single Judge recorded that pending the proceeding the appellant had attained the age of superannuation and had retired on 30th May, 2002. In that view of the matter, the learned Single Judge modified the order of the disciplinary authority to the extent that the punishment imposed by the disciplinary authority has been reduced to stoppage of three increments with LPA/1909/2007 6/9 JUDGMENT future effect and has also ordered that “the retirement dues and other consequential benefits shall be paid to the workman.” True, the workman has not preferred appeal against the order of the learned Single Judge in so far as Special Civil Application No.14131 of 2003 preferred by the Corporation has been allowed. However, considering that the appellant was employed as a conductor and has retired from service as far back as in the year 2002, without entering into the technicalities, we have entertained this Appeal as against the order in Special Civil Application No.14131 of 2003 also. We are in agreement with the above observations made by the learned Single Judge in connection with the power of the disciplinary authority to impose punishment. However, We are of the opinion that the learned Single Judge has overlooked the fact that the learned tribunal had in its judgment dated 7th February, 2002 held that the finding of guilt recorded against the appellant was perverse, i.e. the learned tribunal held that the imputation of charge made against the appellant was LPA/1909/2007 7/9 JUDGMENT not proved. Unless the learned Single Judge reversed the said finding, the question of adequacy of punishment would not arise. The learned Single Judge has, without reversing the finding of “not guilty” recorded by the learned tribunal below, imposed the punishment upon the workman. In our opinion, it is not the right course the learned Single Judge could have adopted. We do believe that the learned tribunal, while deciding the reference is not supposed to sit in appeal against the decision of the disciplinary authority in respect of the guilt established against the workman but that too has not been considered by the learned Single Judge. The learned Single Judge has, thus, erred in imposing punishment upon the workman without holding him guilty or without setting aside the order of the learned tribunal in as much as the learned tribunal found the appellant “not guilty.” In above view of the matter, considering the fact that the workman had in past suffered 58 LPA/1909/2007 8/9 JUDGMENT defaults and that he has reached the age of superannuation as far back as in the year 2002, we are of the opinion that the matter requires to be closed at this stage. For the aforesaid reasons, we allow this Appeal. The order of the learned Single Judge dated 14th February, 2006 in so far as the learned Single Judge has modified the order of the disciplinary authority to impose punishment of withholding of three increments with future effect is set aside. The award of the learned tribunal dated 7th February, 2002 passed in Reference (IT) No.262 of 1998 is confirmed in so far as the order of punishment made by the disciplinary authority is set aside. The award is modified to the extent that the appellant will be entitled to consequential relief. As a consequence, it is directed that the appellant workman will be paid the amount of difference in salary and the pension and other retirement benefits. The aforesaid exercise shall be completed within three months from today. LPA/1909/2007 9/9 JUDGMENT The Appeal is allowed in the above terms. The parties will bear their own cost. (Ms. R.M.Doshit, J.) (K.M.Thaker, J.) kdc