LPA/1090/2004 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1090 of 2004 In SPECIAL CIVIL APPLICATION No. 13370 of 1994 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 ? ========================================================= DIVISIONAL CONTROLLER, G.S.R.T.C. - Appellant(s) Versus DAHYABHAI L PATEL & 2 - Respondent(s) ========================================================= Appearance : MR ASHISH M DAGLI for the Appellant. MR JS BRAHMBHATT for Respondent No.1. None for Respondent No.2. MRS VAIJAYANTI PATHAK, AGP for Respondent No.3. ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER Date : 11/03/2008 LPA/1090/2004 2/11 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) This Appeal preferred under clause 15 of the Letters Patent arises from the judgment and order dated 4th April, 2002 passed by the learned Single Judge in so far as the Special Civil Application No.13370/1994 is dismissed. The appellant herein is the Gujarat State Road Transport Corporation (hereinafter referred to as, “the Corporation”), the writ petitioner before the learned Single Judge. The respondent is the delinquent workman who was employed by the Corporation as a Conductor. On 26th October, 1990 when the workman was on duty enroute Devadha-Bilimora, upon spot checking, he was found to have recovered fare from a passenger but had not issued ticket to him. He was also found to possess excess cash in the sum of Rs.62=65. For the said acts of misconduct, a disciplinary proceeding was initiated against the workman. By order dated 31st January, 1991 made by the disciplinary authority, the delinquent was held to be guilty. For the said acts of misconduct punishment of withholding of yearly LPA/1090/2004 3/11 JUDGMENT increment for two years with future effect was imposed upon the delinquent. Feeling aggrieved, the delinquent preferred appeal before the appellate authority, which came to be rejected on 21st March, 1992. Since the rejection of the appeal, on 24th March, 1992 the appellate authority issued notice upon the delinquent to show-cause why the punishment of withholding of yearly increment for two years imposed upon him be not enhanced. After receiving the reply of the delinquent and after personal hearing, by order dated 24th March, 1994 made by the appellate/reviewing authority, the delinquent was ordered to be dismissed from service. In view of the pending proceeding before the Conciliation Officer, Valsad, the Corporation filed Misc. Civil Application No.55/1993 for approval as envisaged by Section 33(2)(b) of the Industrial Disputes Act, 1947. The said application came to be dismissed. The Conciliation Officer refused to grant approval on the premise that the delinquent having suffered the punishment of withholding of yearly increment for two years, another punishment of LPA/1090/2004 4/11 JUDGMENT dismissal from service was not permissible. It would amount to double jeopardy. The Conciliation Officer also relied upon the statement given by the delinquent in course of the disciplinary proceeding. According to the Conciliation Officer, the recording of statement of the delinquent in course of the disciplinary proceeding was contrary to Article 20 of the Constitution of India. The Conciliation Officer also found that the punishment of dismissal from service imposed upon the delinquent was unconscionably harsh. Further, the Conciliation Officer was of the opinion that power of review could be exercised either to confirm the punishment imposed upon the delinquent or to reduce it but not with a view to enhancing the punishment. The Conciliation Officer also took into consideration the history of the defaults committed by the delinquent. Earlier in as many as 27 cases the delinquent was visited with lesser punishments. However, the harsh punishment of dismissal from service was imposed upon him at the fag end when he was about to retire from service. The said order of the Conciliation Officer was LPA/1090/2004 5/11 JUDGMENT challenged by the Corporation before the learned Single Judge in above Special Civil Application No.13370/1994. The learned Single Judge has, by impugned judgment and order, dismissed the petition. Therefore, the present Appeal. The learned Single Judge has upheld the finding that the reviewing authority had no power or jurisdiction to enhance the punishment imposed upon the delinquent. The learned Single Judge has relied upon the judgment of the Hon'ble Supreme Court in the matter of Makeshwar Nath Srivastava v/s. The State of Bihar and others [AIR 1971 SC 1106]. The learned Single Judge confirmed the reasoning of the Conciliation Officer in connection with the double jeopardy suffered by the delinquent. The learned Single Judge has also recorded that the reviewing authority was not empowered to enhance the order of punishment. The learned Single Judge also made note of the fact that under the prevalent settlement the Corporation had agreed that power of review would be exercised within a period of one year from the date of the order. In the instant case, the power of LPA/1090/2004 6/11 JUDGMENT review was exercised more than one year after the date of the order of the disciplinary authority. The order made on review was, therefore, illegal and unjust. Mr.Dagli has appeared for the Corporation. He has assailed the judgment of the learned Single Judge. He has submitted that the question of limitation was not raised before the Conciliation Officer. The Corporation could not have been non- suited on the ground of limitation. He has further submitted that the power of review is conferred upon the appellate authority by clause (9) read with clause (14) of the Gujarat State Road Transport Corporation Discipline and Appeal Procedure (hereinafter referred to as, “the Procedure”). The said power could be exercised within one year from the date of the order under review. However, in case where the appeal is preferred by the workman, the reviewing authority is supposed to stay its hand until the appeal is decided. In such a case, the date of the order in appeal would be the date from which the period of limitation would commence. The learned LPA/1090/2004 7/11 JUDGMENT Single Judge has erred in holding that the order made on review was time-barred. He has submitted that once the workmen had preferred appeal, so long as the said appeal was pending, the reviewing authority could not have initiated the review proceeding. Therefore, the period of limitation would commence from the date of the order of the appellate authority. In the instant case, the reviewing authority had exercised its power within days from the date the appellate authority had rejected the appeal. The approval, therefore, could not have been refused on the ground of limitation. Mr.Brahmbhatt has contested the Appeal. He has supported the judgment and order of the learned Single Judge. In the matter of Makeshwar Nath Srivastava (supra), the Hon'ble Supreme Court was considering the order of enhancement of punishment made by the State Government, the appellate authority, against the order of the Inspector General of Police. The Hon'ble Court was of the opinion that in absence of a specific power conferred by the relevant rules, the LPA/1090/2004 8/11 JUDGMENT State Government, while hearing the appeal preferred by the delinquent police, had no power of revision or review to enhance the punishment imposed by the authority below. As we shall discuss hereinbelow, in the instant case, the appellate authority/reviewing authority has been conferred with the express power to review the order of punishment. In view of the said express power conferred by the Procedure, the above judgment of the Hon'ble Supreme Court has no applicability to the facts of the present case. The power of review conferred upon the appellate authority under clause (9) of the Procedure was the subject matter of consideration by the Division Bench of this Court (Coram: A.L.Dave and S.D.Dave, JJ.) in Civil Reference No.1/2007. By judgment dated 24th October, 2007 the Reference is answered thus, “...Clause-9 empowers the Appellate Authority to call for the papers of any case for review. Obviously, these powers would include the powers to enhance the punishment in case it is found to be inadequate.” In view of the aforesaid judgment, the finding of the learned Single Judge that the reviewing LPA/1090/2004 9/11 JUDGMENT authority has no power to enhance the punishment is not a good law, is contrary to the aforesaid judgment of the Division Bench of this Court. The finding of double jeopardy recorded by the Conciliation Officer as well as by the learned Single Judge also does not appeal to us. What the reviewing authority did was in exercise of its power to enhance the punishment. The order of enhancement of punishment imposed upon the disciplinary authority cannot be said to be double jeopardy caused to the delinquent workman. As to the limitation, we do agree with Mr.Dagli. The relevant date for commencement of the period of limitation would be the date on which the appeal was decided by the appellate authority. As recorded hereinabove, the appellate authority rejected the appeal on 21st March, 1992, that being the relevant date, the notice to show-cause issued by the reviewing authority within three days therefrom cannot be said to be time-barred as held by the learned Single Judge. The finding of the Conciliation Officer that the disciplinary proceeding held against the delinquent was in contravention of Article 20 of the Constitution of India and that the punishment LPA/1090/2004 10/11 JUDGMENT imposed upon the delinquent was unconscionably harsh was, in our opinion, beyond the jurisdiction of the Conciliation Officer exercising power of approval under Section 33(2)(b) of the Industrial Disputes Act. The scope and ambit of Section 33(2)(b) of the Act has been succinctly discussed by the Hon'ble Supreme Court in the matter of Lalla Ram v/s. Management of D.C.M. Chemical Works Ltd. and another [AIR 1978 SC 1004]. It has been held that “...the jurisdiction of the Industrial Tribunal is confined to the enquiry as to (i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held; (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out; (iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee.” For the aforesaid reasons, we are of the opinion LPA/1090/2004 11/11 JUDGMENT that the Conciliation Officer had erred in refusing the approval sought by the Corporation under Section 33(2)(b) of the Act on the grounds not germane to the inquiry under Section 33(2)(b) of the Act. The learned Single Judge has erred in upholding the order of the Conciliation Officer. The impugned judgment and order dated 4th April, 2002 passed by the learned Single Judge in so far as the Special Civil Application No.13370/1994 preferred by the Corporation is dismissed, is quashed and set-aside. The Special Civil Application No.13370/1994 is allowed. The order of the Conciliation Officer, Valsad made in IDC/Misc.55/93 is quashed and set- aside. The IDC/Misc.55/93 made by the Corporation under Section 33(2)(b) of the Industrial Disputes Act stands allowed. The Appeal stands allowed. The parties will bear their own cost. (K.M.Thaker, J.) (Ms. R.M.Doshit, J.) /moin