SCA/15076/2005 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15076 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ================================================= 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 ? ================================================= GSRTC THR' LEGAL ADVISOR - Petitioner Versus NIRANJAN P. BUDDHDEV - Respondent ================================================= Appearance : MR ASHISH M DAGLI for Petitioner : MR NIRAV C THAKKAR for Respondent: ================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 30/12/2008 CAV JUDGMENT 1. The Gujarat State Road Transport Corporation – the employer has approached this Court under Article 226 of the Constitution of India challenging the impugned award passed by learned Presiding Officer, Labour Court at Rajkot in Reference (LCR) No. 220 of 2003 where under the Labour Court has declared that the dismissal SCA/15076/2005 2/7 JUDGMENT of the respondent was illegal and, as he attained the age of superannuation on 28/2/2000 he was ordered payment of 75 % back wages from 18/6/1997 to 28/2/2000. 2. It was the case of the workman before the concerned Labour Court that he was serving as Traffic Inspector. He was issued charge sheet on 7/9/1996 containing allegations that he was making false representation though the work of Assistant Traffic Inspector was not taken from him he had approached the authorities outside the Corporation for bringing pressure for his transfer and had threatened for going on fast if his demands were not considered. The inquiry was held and ultimately on 18/6/1997 order of dismissal came to be passed by way of punishment holding that the charges were proved. 3. The respondent workman challenged the same by filing proceedings in Gondal Civil Court being Regular Civil Suit No. 207 of 1997 and as no order was granted he was relieved from service from 12/9/1997. The workman also filed Regular Civil Appeal No. 99 of 1997, even that was also dismissed. The workman in the meantime attained the age of superannuation on 28/2/2000. The workman ultimately issued demand notice on 29/9/2003 which came to be referred to the competent Court for adjudication. The competent Court after hearing the parties passed the award as stated herein above which is impugned in the present proceedings. 4. Shri Dagli, learned counsel for the petitioner contended SCA/15076/2005 3/7 JUDGMENT that once having admitted the legality and validity of the proceedings of the inquiry it was not open to the workman to challenge even the outcome of the inquiry. The Labour Court has erroneously granted 75 % back wages from the date of termination till the date of superannuation. Shri Dagli submitted that the misconduct was amply proved and therefore exercise of discretion under Section 11(A) of the Industrial Disputes Act was uncalled for and therefore the same deserves to be quashed and set aside. 5. Shri N.C. Thakkar, learned counsel for the workman contended that the workman had given purshish only for giving up legality and validity of the proceedings but had not given up challenge to the findings and perversity in as much as the workman has been wrongly dismissed and therefore he was rightly ordered to be paid compensation as he had attained the age of superannuation thereafter. He submitted that the findings of the Labour Court can not be said to be so perverse as to call for interference under Article 226 of the Constitution of India and therefore the petition deserve to be dismissed. 6. This Court has heard learned counsels for the parties and perused the award and relevant documents attached there with. The following undisputed facts deserve to be set out before adverting to the rival contentions of the parties as under:- i) The workman received charge sheet on 7/9/1996 SCA/15076/2005 4/7 JUDGMENT containing allegations with regard to insubordination and making false complaint with regard to taking work from him. He was working as Traffic Inspector but he made false complaint that work of Assistant Traffic Inspector was taken from him, and he was also charged with bringing outside pressure for transfer and threatening for going on fast if his demands were not considered. ii) The workman was dismissed by way of penalty on proving the charge of misconduct. iii) The workman filed regular civil suit No. 207 of 1997 instead of raising industrial dispute. iv) Said civil suit came to be dismissed, hence he filed regular civil appeal no. 99 of 1997. Even at this stage also the workman has not preferred any remedy under the Industrial Disputes Act. v) The workman attained the age of superannuation on 28/2/2000. vi) The workman issued demand notice for the first time only on 29/9/2003 and ultimately the reference came to be rejected. vii) It was also required to be noted that the remedy of preferring appeal i.e. departmental appeal had not been availed by the workman and straightway civil suit was filed and after attaining the age of superannuation he SCA/15076/2005 5/7 JUDGMENT raised industrial dispute. viii) It was the contention raised by the GSRTC- Employer, i.e. present petitioner that the respondent workman did file I.D. Complaint which later on he withdrew. ix) The Labour Court has held that the inquiry conducted against the workman was just & proper. x) The Labour Court held that the charges can not be said to be proved beyond doubt and decided to interfere in the matter of penalty by exercising power under Section 11(A) of the I.D. Act. xi) The workman had given purshish at exhibit-71 and given up his challenge with regard to validity of the departmental inquiry. xii) The Labour Court has discussed the evidence that amounts to reappraising the whole issue. xiii) The Labour Court has decided to interfere in the quantum of penalty in exercise of the power conferred upon it under Section 11(A) of the I.D. Act, holding that the penalty of dismissal was disproportionate. 7. Against this backdrop, this Court is to examine as to whether the impugned award can be said to be tenable in eye of law under Article 227 of the Constitution of India. The reading of the entire award go to show that the Labour Court has not at all dealt with the aspect of SCA/15076/2005 6/7 JUDGMENT enormous delay in availing the remedy under the Industrial Disputes Act 1947. The workman for the first time issued demand notice only on 29/9/2003, i.e. the date after he attained the age of superannuation on 28/2/2000. It is also required to be noted that prior thereto as contained by the petitioner the workman did file industrial complaint but the same was withdrawn. These are the aspects which require to be borne-in-mind while examining the misconduct and penalty imposed. 8. The Labour Court has on the one hand held that the charges cannot be said to have been proved beyond doubt, but at the same time has decided to exercise power under Section 11(A) of the I.D. Act. The Labour Court's findings can not be said to be sustainable for the reason that the Labour Court has in fact substituted its own view and appreciation of evidence in place of that of Inquiry Officer and the Disciplinary Authority. It is also required to be noted that as per the decision of the Apex Court the workman once gives up his challenge to the validity and propriety of the inquiry, then it is not open for the Labour Court to go into the aspect of conclusion and its perversity. Therefore the Labour Court award which is based upon such finding is patently perverse and requires to be quashed and set aside. It is further required to be noted that the discretion under Section 11(A) of the I.D. Act is to be exercised in a given fact & circumstance only as recorded in the case of LIC OF INDIA Vs. R. DHANDAPANI, reported in (2006) 13 SCC, 613. The reasons given therein are conspicuously absent in the present case. Thus, in view of these, the award SCA/15076/2005 7/7 JUDGMENT which is proceeded mainly upon a kind of sympathy and on the premise that the misconduct was not that of misappropriation warranting dismissal, the award can not be said to be sustainable and therefore the same is required to be quashed and set aside. In the result, this petition is allowed. The award dated 5/1/2005 in Reference (LCR) No. 220 of 2003 passed by Labour Court, Rajkot is quashed and set aside. Rule made absolute to the aforesaid extent. However no order as to costs. [ S.R. BRAHMBHATT, J ] /vgn