SCA/10640/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10640 of 2008 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 ? ============================================= = AHMEDABAD MUNICIPAL CORPORATION - Petitioner Versus RAMESHCHANDRA MAGANLAL GOHIL - Respondent ============================================= = Appearance : MR HS MUNSHAW for Petitioner MR MA PAREKH for Respondent ============================================= = CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 11/11/2008 ORAL JUDGMENT Rule. Mr.M.A.Parekh, learned Advocate for the respondent-workman waives service of notice of Rule and with the consent of parties, the same is fixed forthwith. SCA/10640/2008 2/7 JUDGMENT 2. The petitioner-AMC has assailed the judgment and award dated 31/03/2008 passed by the learned Presiding Officer, Labour Court Ahmedabad in Reference (LCA) No.619 of 2003 whereby he partly allowed the reference quashing and setting aside the order of dismissal of the respondent-workman and ordering him to be treated as continuous in service till he attained the age of superannuation and granting him all the retiral benefits with cost of Rs.1,000/-. 3. The facts in brief deserves to be set out as under in order to appreciate the controversy involved in the matter. 3.1 The respondent-workman at the relevant time was working in Tax Department of Special Property. He received charge-sheet on 12/01/1989 in respect of temporary misappropriation of sum of Rs.28,863-35 during the period from 13/09/1985 to 11/12/1986. After holding detailed inquiry, report came to be filed on 23/04/1991 holding the respondent- workman guilty of temporary misappropriation of an amount of Rs.28,863-35. Relying upon the said report of the Inquiry Officer and after giving opportunity of hearing, the respondent- workman came to be dismissed from service vide order dated 06/09/1991. The workman challenged the said order by preferring Civil Suit No.6070 of 1991 in the City Civil Court, Ahmedabad wherein the interim-order was granted and service of the respondent-workman was protected. The said suit came to be disposed of on 21/02/2003 and ultimately the City Civil Court, Ahmedabad observed that it had no jurisdiction. However, while disposing of suit, the interim order granted earlier was continued upto 15/07/2003. The respondent- workman, thereafter, raised industrial dispute which came to SCA/10640/2008 3/7 JUDGMENT be referred to the Competent Court and wherein it got numbered as Reference (LCA) No.619 of 2003. The Labour Court after hearing both the sides, vacated an interim relief on 22/07/2003 and thus ultimately the order of dismissal came to be effected only on 22/08/2003. Ultimately, the Labour Court after hearing both the parties partly allowed the reference as stated aforesaid by order dated 31/03/2008. 4. Being aggrieved and dissatisfied with the said judgment and award, the petitioner – AMC has preferred the present petition under Article 227 of the Constitution of India. Shri Munshaw, learned Advocate for the petitioner has contended that the award is absolutely untenable in the eye of law. The Labour Court ought not to have exercised its jurisdiction under Section 11 (A) of the Industrial Disputes Act, in view of the clear finding recorded by the Inquiry Officer, as a result whereof the punishment of dismissal came to be imposed upon the workman. He further submitted that the Labour Court though has substituted its finding with regard to guilt of the workman still felt that some punishment was required to be imposed and therefore denied back wages and as the respondent-workman had attained the age of superannuation in the meantime, ordered him to be treated as having been continuous in service and accorded retiral benefits on that basis. The Labour Court, therefore, cannot be said to have awarded punishment at all or exercised the discretion de horse the facts on record. He submitted that the findings of the Labour Court are such as not sustainable under the law and therefore the same deserves to be quashed and set aside. He further submitted that the act of temporary misappropriation was in-fact deliberate misappropriation on the part of the SCA/10640/2008 4/7 JUDGMENT workman, as it could be seen from the record. The depositing of money only after instruction from the superior would go to show that the intention was that of misappropriation only. As there was contemplation of action, the respondent-workman under the instructions of his superior deposited the amount. This in itself would go to show that the Labour Court's finding with regard to lack of intention to misappropriate is absolutely ill-founded and perverse and warranting quashing and setting aside of the award. He, therefore, submitted that the petition deserves to be allowed. 5. Shri Parekh, learned Advocate for the respondent- workman submitted that the so-called temporary misappropriation is in-fact not supported by any cogent evidence and therefore the Labour Court was absolutely justified in recording its finding with regard to lack of intention on the part of the respondent-workman for misappropriation or for temporary misappropriation. The findings of the Labour Court may not be disturbed under Article 227 of the Constitution of India, especially when that view is also not altogether impossible. This Court may not substitute its view for that of Labour Court's view with regard to findings on the aspect of intention to misappropriate. He further submitted that the Corporation is not really prejudiced by this order as the workman has continuously served till he attained the age of superannuation i.e. till the interim order came to be vacated from 1991 upto 2003 and therefore now only he is ordered to be treated as if he was in continuous service and on attaining the superannuation, he is to receive the retiral benefits. In view of this also, the order of the Labour Court impugned in this petition need not be disturbed. He, therefore, submitted SCA/10640/2008 5/7 JUDGMENT that the petition deserves to be dismissed. 6. Heard the learned Advocates for the parties and perused the impugned award. It deserves to be noted that the respondent-workman received charge-sheet on 12/01/1989 wherein it has been categorically mentioned that the workman has temporarily misappropriated an amount of Rs.28,500/- and Rs.363-35 Paise during the period of 13/09/1985 to 11/12/1986. It also requires to be noted that this amount of Rs.28,000/- and odd came to be deposited by the respondent- workman only after he was instructed to do so by the concerned authority. The finding of the Inquiry Officer are based upon the elaborate evidences adduced by the Presenting Officer that to show that the charge of temporary misappropriation was established. The workman by his Pursis has given up challenge to the initiation and / or of conducting of inquiry proceedings. He has confined his challenge only qua finding of Inquiry Officer, therefore, the scope for examining the finding was naturally very narrow before the Labour Court. The question arises as to whether in light of the Pursis (Exh.20), this Court could have elaborately discussed the procedure of inquiry. The answer would be “No”. That apart, the Labour Court appears to have gone into the realm on conjectures and surmises. The evidence on record and admission of the workman before the Inquiry authority unequivocally go to show that the workman did not deposit the amount and could deposit only after he was instructed to do so. The factum of non-depositing the amount and / or rather withholding of amount for long period and depositing the same after instructions received from the superior in itself could be said to be sufficient to lead to the strong and legitimate SCA/10640/2008 6/7 JUDGMENT inference that, it was withheld with a view to misappropriate, may be temporarily, or else there ought to have been cogent explanation for not depositing the amount. The lack of experience on the part of the respondent-workman would not come to his rescue. The said action of non-depositing the amount for quite long time cannot be brushed aside by merely terming it to be negligence as it has done by the Labour Court. Therefore, the finding of the Labour Court cannot be said to be in accordance with law so as to warrant its sustenance. On the contrary, this Court is constrained to observe that the Labour Court ought to have been mindful of the fact that the workman concerned could not offer any plausible explanation for not depositing the amount and in absence of any plausible explanation coming forward from the workman, lack of intention cannot be inferred. Assumption of lack of intention of misappropriation temporarily would nothing but the perversity on the part of the Labour Court and therefore this court has no hesitation to observe that the finding of the Labour Court are perverse warranting an immediate interference. The Labour Court has also patently erred in exercising its jurisdiction under Section 11 (A) of the I.D. Act. In this peculiar facts and circumstances, in-fact withholding and / or non-granting of back wages of the workman who had successfully stalled the implementation of the order of penalty of dismissal for as long as 12 to 13 years in itself amount to putting up premium on the act of dishonesty. 7. In view of this, the judgment and award can be said to be absolutely perverse and such as not to be sustained under the law. This Court is, therefore, of the view that the order of punishment of dismissal has rightly been passed and SCA/10640/2008 7/7 JUDGMENT therefore judgment and award passed by the learned Labour Court deserves to be quashed and set aside and is accordingly quashed and set aside. Rule made absolute to the aforesaid extent only. However, there shall be no order as to costs. (S.R.BRAHMBHATT, J.) sompura