SCA/28274/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 28274 of 2007 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 ? ========================================= G S R T C - Petitioner(s) Versus BHARATKUMAR P PRAJAPATI C/O. SECRETARY - Respondent(s) ========================================= Appearance : MS SEJAL K MANDAVIA for Petitioner(s) : 1, MR GK RATHOD for Respondent(s) : 1, MR MUKESH H RATHOD for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 09/07/2008 ORAL JUDGMENT 1. In this petition, the petitioner – State Road Transport Corporation has challenged the award dated 30.11.2006 passed by the learned Industrial Tribunal, Ahmedabad in Reference (IT) No.149 of 2003. By impugned order, the learned Industrial Tribunal has set aside the order dated 6.12.1997 SCA/28274/2007 2/8 JUDGMENT passed by the Disciplinary Authority and order dated 22.6.1999 passed by the Appellate – Reviewing Authority of the petitioner - Corporation pursuant to and in connection with the charge-sheet dated 23.7.1997. The impugned award render, this case of misconduct, in case of "no penalty" though the charge is held as proved by the Inquiry Officer and Disciplinary Authority and legality of this departmental inquiry was not challenged. Hence, Rule. 2. Ms. Sejal K. Mandavia, learned advocate appears for the petitioner – Corporation and in response to the notice issued by the Court, Mr. Rathod, learned advocate appears for the respondent. In view of the joint request of the advocates of both sides and with their consent, the petition is taken up for final hearing today and is decided finally. 3. Mrs. Mandavia, learned advocate has taken this Court through the charge-sheet, statements of the passengers as well as the statement of the respondent and also through the findings of the Inquiry Officer and submitted that the learned Industrial Court has committed error in setting aside the penalty order as a result of which the respondent as well as the misconduct would go without any punishment whatsoever. She submitted that the statements of the passengers conclusively demonstrated that the respondent collected fair, but did not issue ticket. She also relied upon the statement made by the respondent. 4. On the other hand, Mr. Rathod, learned advocate submitted that the order passed by the learned Tribunal is just and proper and he assailed the SCA/28274/2007 3/8 JUDGMENT orders of the Disciplinary Authority as well as Appellate - Reviewing Authority mainly by deriving support from the Disciplinary Authority's order, wherein, while imposing penalty, the Disciplinary Authority has recorded that if the checking team had not undertaken the checking at the material point of time, then the respondent would have been successful in misappropriation of the amount by collecting fair and not issuing tickets. Mr. Rathod, learned advocate cited the said observations and submitted that the order of the Disciplinary Authority discloses that the Disciplinary Authority has proceeded on the basis of assumptions and conjunctures. He also relied upon the cross-examination of Mr. N.A. Pandya, the reporter (i.e. the member of checking team), wherein the respondent appears to have questioned him as to whether the checking team had verified the cash with the respondent or not and in reply, said Mr. Pandya seems to have admitted that the cash was not verified. On the basis of such statement made by Mr. Pandya, Mr. Rathod, learned advocate submitted that unless the cash with the respondent was verified, the Disciplinary Authority could not have reached to the conclusion that the respondent had collected the fair and had not issued tickets. 5. It is the case of the petitioner Corporation that while respondent was on duty as Conductor in bus plying from Lanva to Patan. Three groups of passengers boarded the bus. As per the case of the petitioner - Corporation, in the first group, there were two passengers, from whom, the respondent collected fair of Rs.2/-, but did not issue tickets until the said persons reached their destination viz. Shankhari. Likewise in respect of the second group, there were two passengers and from them the respondent collected fair of Rs.2/-, but SCA/28274/2007 4/8 JUDGMENT did not issue tickets and in respect of the third group of passengers, there were three passengers, the respondent collected fair of Rs.4.50 and did not issue tickets. Thus, in respect of seven tickets, though he collected fair of Rs.8.50, he did not issue tickets. In connection with the said misconduct, a charge-sheet dated 27.7.1997 was framed and issued on the basis of the statements of passengers recorded by the checking team as well as the statement of respondent. The petitioner – Corporation has also claimed that copies of the statements were served to the respondent along with charge-sheet and after following the normal procedure of inviting explanation and considering the explanation, the petitioner Corporation conducted departmental inquiry wherein the respondent herein was afforded opportunity to make statement in his defence as well as to cross-examine the witnesses examined by the respondent – Corporation. After conclusion of the departmental inquiry, the Inquiry Officer submitted his report dated 24.11.1997. Subsequently, after considering the record and findings of the Inquiry Officer, the Disciplinary Authority passed an order imposing punishment of stoppage of four increments with permanent effect. The respondent herein challenged the said order before the Appellate Authority, however, upon examining the record, the Appellate Authority considered it appropriate to take the matter in review since in view of the Appellate Authority, the penalty by the Disciplinary Authority was inadequate. After issuing notice to the respondent for initiating review proceedings, the Reviewing Authority afforded opportunity of hearing and defence to the respondent and subsequently passed an order dated 4.5.1998 enhancing punishment by directing that the respondent be placed on the SCA/28274/2007 5/8 JUDGMENT minimum/original scale for five years. Aggrieved by the said orders of Disciplinary Authority and Appellate – Reviewing Authority, the respondent raised industrial dispute which culminated into Reference (I.T.) No.149 of 2003. During the proceedings before the learned Industrial Court, the respondent admitted legality and propriety of the departmental inquiry order, however, challenged the findings of the Inquiry Officer. 6. Learned Industrial Court has, upon adjudication of the Reference, passed impugned award dated 30.11.2006, whereby the learned Court has set aside the orders passed against the respondent. In other words, the learned Industrial Court has, by the impugned order, wiped out the punishment in toto and consequently, now there is no penalty imposed on the respondent. Thus, being aggrieved by the said award, the petitioner - Corporation is before this Court by way of present petition. 7. Mrs. Mandavia, learned advocate has taken this Court through the charge-sheet, statements of the passengers as well as the statement of the respondent and also through the findings of the Inquiry Officer and submitted that the learned Industrial Court has committed error in setting aside the penalty order as a result of which the respondent as well as the misconduct would go without any punishment whatsoever. She submitted that the statements of the passengers conclusively demonstrated that the respondent collected fair, but did not issue ticket. She also relied upon the statement made by the respondent. 8. At first blush, the said submissions of Mr. Rathod, learned SCA/28274/2007 6/8 JUDGMENT advocate, sounds attractive and he appeared on good footing when he submitted that without examining or verifying the cash, the Authority could not have reached to the findings that amount was collected by the respondent. However, statement made by the respondent before the checking team rings a bell of caution and it comes out that Mr. Rathod seems to be overlooking respondent's statement. It is pertinent that in his statement, the respondent appears to have admitted that the amount from the said passengers was received and tickets were not issued and he has tried to explain said statement by adding that he was in process of issuing the tickets and the way bill was not closed and if the checking team had not intervened at material point of time, he would have issued tickets. In this view of the matter, it cannot be said that the authorities have not given any attention to his explanation or defence. The Authorities appear to be right in holding that the said explanation was an after thought. 9. The view that the respondents explanation is an after thought, gets fortified by the statements of the passengers that the fair were collected from them but tickets were not issued. The said statements also establish that the tickets were not issued until arrival of the destination of some of the passengers. From the conjoint reading of the explanation of respondent and the statements of the passengers, it transpires that the respondent has admitted both aspects namely (a) fair were collected from seven passengers and (b) tickets were not issued. In light of the fact that the bus had travelled almost SCA/28274/2007 7/8 JUDGMENT one K.M., it is difficult to accept the explanation of the respondent and from the conspectus of the said aspect, it also become clear that the explanation of the respondent is an excuse and after thought. 10. It is also to be noted that the default card of the respondent discloses that he has past record of almost 12 instances. 11. Under the circumstances, the findings of the Inquiry Officer cannot be said to be perverse as held by the learned Labour Court. Once it is found and held that the finding of the Inquiry Officer are not perverse and when the proceedings of the departmental inquiry are admitted by the petitioner, then in that event, the order of the learned Labour Court by which the Court set aside the order of the Disciplinary Authority does not remain sustainable. This discussion brings in picture the order of the Reviewing Authority. The Reviewing Authority has enhanced the punishment imposed by the Disciplinary Authority, but without recording any cogent and satisfactory reasons, strong enough to dislodge the decision of the Disciplinary Authority. Without recording good and sufficient reason as to how the order of Disciplinary Authority was erroneous or inadequate, the Reviewing Authority could not have mechanically interfered with the Disciplinary Authority's decision. There does not appear to be any justifiable basis for reviewing authority to presume that the respondent's past record was not considered by the Disciplinary Authority while deciding the quantum of penalty. In absence of any reason, order of the Reviewing Authority is not sustainable, because the Reviewing Authority has merely proceeded on the premise that the respondent has SCA/28274/2007 8/8 JUDGMENT unsatisfactory and tainted service recorded, however, as mentioned above there was no justification for presuming that the Disciplinary Authority did not consider the past record while deciding quantum of punishment. Further the Reviewing Authority has not recorded any reason, other than reference of past 12 instances, for holding that the penalty imposed by the Disciplinary Authority is inadequate. It is difficult to sustain such unreasoned order made on presumptions that the history of 12 past instances was not kept in mind by Disciplinary Authority. 12. Thus, in above view of the matter, the award of the learned Labour Court allowing Reference in toto, because of which the respondent would go scott free and without any penalty, is not sustainable. Likewise the order of the Reviewing Authority, enhancing penalty, without recording any strong and good reasons for upsetting the order of Disciplinary Authority and arriving at different conclusion as regard the punishment is not sustainable. Under the circumstances, the award of the learned Labour Court is set aside and the order of the Disciplinary Authority is restored. 13. The petitioner – Corporation is directed to make payment of differential amount, which may be payable after this order, within a period of four weeks. The petition is, thus, partly allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. No order as to costs. (K.M.THAKER, J.) ynvyas