SCA/1404/2004 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1404 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ====================================== 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 ? ====================================== KIRITCHANDRA PREMSHANKAR THAKOR Versus DIVISIONAL CONTROLLER, GUJARAT STATE ROAD TRANSPORT CORPORATION ====================================== Appearance : MR GK RATHOD for Petitioner MS SEJAL K MANDAVIA for Respondent ====================================== CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 30/04/2008 ORAL JUDGMENT SCA/1404/2004 2/8 JUDGMENT 1 This petition under Articles 226 and 227 of the Constitution of India is directed against the judgment and award dated 8th July 2003 passed by the Industrial Tribunal, Vadodara, in Reference [IT] No.14 of 1998, whereby, the Tribunal rejected the reference filed by the workman-petitioner and confirmed the orders passed by the lower appellate authorities converting the order of dismissal into reducing the petitioner to the lowest pay-scale in the cadre of driver with reinstatement in service and treating the period, during which he remained out of job i.e. period between dismissal and reinstatement, as leave without pay. 2 It is to be noted that, before the Industrial Tribunal rejected the reference of the petitioner, an appeal preferred by the petitioner against the order of the First Appellate Authority placing the petitioner to the lowest pay-scale and treating the interregnum period between dismissal and reinstatement as leave without pay, came to be dismissed by the Second Appellate Authority. 3 The petitioner, who was serving with the respondent-Corporation, came to be charge sheeted on 19th May 1993. It was alleged that the petitioner had taken an amount of Rs.800/- from Shri Ashokkumar Kanchanlal Patel, who had hired S.T. Bus of the Corporation, on the ground that 20 passengers were traveling in excess of the capacity of the bus. The basis of issuance of the charge sheet was the complaint made by the contracting party. A reply was given by the petitioner. In the departmental inquiry, charge of taking the amount of Rs.800 from the contracting party was proved and, subsequently, the Disciplinary Authority passed an order of dismissal on 30th July 1994. The appeal preferred by the petitioner was partly allowed by the First Appellate SCA/1404/2004 3/8 JUDGMENT Authority vide order date 31st January 1995 setting aside the order of dismissal and imposing the punishment upon the petitioner by placing him in the lowest pay-scale of driver and the period from dismissal to reinstatement was treated as leave without pay. The second appeal filed by the petitioner was rejected by the Second Appellate Authority by order dated 20th January 1996. Later on, the reference was preferred by the petitioner, which came to be rejected by the Industrial Tribunal, Vadodara, and, hence, this petition. 4 Mr. Mukesh Rathod, learned counsel for the petitioner, has submitted that the order passed by the Industrial Tribunal is contrary to the evidence on record. That, the Tribunal has failed to appreciate that the charge against the petitioner was based on the written complaint given by the contracting party, who was not examined by the Enquiry Officer. Not only that, according to the learned counsel for the petitioner, the above complaint was subsequently withdrawn by the complainant and, therefore, the very basis of charge levelled against the petitioner had vanished and, therefore, the punishment imposed upon the petitioner, who had put in 18 years of service as driver with the Corporation, is not justified. He further submits that even the employees of the Corporation, who were on service, namely, conductors and drivers of other two buses hired by the contracting parties, were also not examined and, therefore also, the enquiry is vitiated. He further submits that the complaint was filed by the contracting party at the behest of a social worker and the whole story is concocted and fabricated. Besides, the above complaint was lodged after 12 days of the alleged incident. He further submits that, in absence of the conductor, the petitioner-driver had tried to protect the interest of the Corporation by asking extra amount of Rs.800/- since the passengers boarded the bus were in excess of the contracted load. Considering the above circumstances and SCA/1404/2004 4/8 JUDGMENT particularly when the petitioner was to retire on completion of 58 years, i.e. on 30th August 2005, placing the petitioner to the lowest pay-scale would ultimately result into loss of about Rs.4 lakhs and, therefore, the punishment is very harsh in absence of any material on record and, therefore, the rejection of reference by the Tribunal deserves interference by this Court in exercise of power under Articles 226 and 227 of the Constitution of India. 5 Ms. Sejal Mandavia, learned counsel for the respondent- Corporation, has submitted that exercise of power under Articles 226 and 227 of the Constitution of India is circumscribed by various decisions of the Apex Court and, in the present case, when the petitioner was initially awarded punishment of dismissal from service by the competent Authority, the same was interfered with the first appellate authority and the order of dismissal was set aside by taking a lenient view of misconduct of the petitioner and ordered to be reinstated by reducing his salary to the lowest minimum on the post of driver. The said order passed by the First Appellate Authority was also confirmed by the Second Appellate Authority with little modification and the Industrial Tribunal. Even if this Court is of the view that the punishment is harsh, as per the law laid down by the Apex Court, it is not open to alter or modify the punishment unless the same is disproportionate or harsh and shocking the conscience of the Court. At the same time, learned counsel for the respondent-Corporation submits that, looking to the proved misconduct of the petitioner, the punishment of reducing the pay-scale of petitioner to the lowest minimum in the cadre of Driver cannot be said to be disproportionate or harsh. According to her, the subsequent withdrawal of the complaint by the complainant cannot be said to be a mitigating circumstance or reason for this Court to interfere with the concurrent findings of the authorities below in exercise of power under SCA/1404/2004 5/8 JUDGMENT Articles 226 and 227 of the Constitution of India. So far as non- examination of witnesses, namely, drivers and conductors of other two buses is concerned, no request was made by the petitioner to summon them as witnesses in the departmental enquiry. On the contrary, the two drivers and conductors initially had made statements against the petitioner. Considering the facts and circumstances of the case, the learned counsel for the respondent submits that the judgment and award passed by the Industrial Tribunal is in accordance with law, as required under Section 11 of the Industrial Disputes Act and does not deserve any interference by this Court in exercise of power under Articles 226 and 227 of the Constitution of India. 6 Having heard the learned advocates for the parties and considering the facts of the case and on perusal of the record, it cannot be said that the findings recorded by the Disciplinary Authority on appreciation of material on record , as confirmed by the first and second appellate authorities and the Tribunal, are perverse or contrary to record. It is exclusively within the domain of the Disciplinary Authority to award a punishment, provided the charge levelled against the delinquent is proved in a departmental enquiry on the basis of relevant material produced on record and proper appreciation thereof. In the departmental enquiry held against the petitioner, the Disciplinary Authority had come to the definite conclusion that the charge against the petitioner was proved. It is an admitted fact that, initially, a complaint was lodged by the contracting party for demanding Rs.1000/- and, subsequently, an amount of Rs.800/- was paid to the petitioner, which was not deposited with the S.T. Corporation. It is also proved that the petitioner had misbehaved with the contracting party on the occasion of marriage ceremony for which a contract was entered into for hiring buses. On appreciation of above facts, the Disciplinary Authority had SCA/1404/2004 6/8 JUDGMENT come to the conclusion that the charge against the petitioner is proved. Even the statements made by the contractor and the drivers of other buses hired by the contracting party reveal that the petitioner had misbehaved with the contracting party and, though not agreed by other drivers and conductors, the petitioner had asked for amount which was given by the contracting party. In that view of the matter, it cannot be said that the Enquiry Officer has taken irrelevant material into consideration without examining the drivers and conductors of other buses in the departmental inquiry. It was the duty of the petitioner to raise objection during the course of departmental enquiry or to request the Authority to examine them as witnesses. 7 So far as the quantum of punishment of reducing the petitioner to the lowest minimum pay-scale of the driver is concerned, the appellate authorities below have found that the order of dismissal was on the higher side and, therefore, by taking a lenient view, the punishment was reduced to lowest minimum pay-scale of the driver. Therefore, it cannot be said to be, in any manner, disproportionate to the proved misconduct. 8 The Courts have been extremely loath to interfere with the discretion exercised by the employer in the matter of imposition of punishment. As a matter of fact, the Courts have interfered with the punishment only in exceptional cases where it is found to be wholly arbitrary or shockingly disproportionate to the misconduct found proved. In Union of India vs. G. Ganayutham (1997) 7 SCC 463, M. Jagannadha Rao, J. noticed the 'Wednesbury' principle and the doctrine of 'Proportionality' and held that the Superior Courts would not readily exercise the power of secondary review while examining the challenge to the discretion exercised by the employer in the matter of punishment. This rule has been followed and reiterated in Om Kumar vs. Union of SCA/1404/2004 7/8 JUDGMENT India, (2001) 2 SCC 386. In that case, following proposition was laid down. “In this context, we shall only refer to these cases. In Ranjit Thakur V. Union of India this Court referred to “proportionality” in the quantum of punishment but the Court observed that the punishment was “shockingly” disproportionate to the misconduct proved. In B.C. Chaturvedi Vs. Union of India this Court stated that the court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would nor normally substitute one punishment for the other. However, in rare situations, the court could award an alternative penalty. It was also so stated in Ganayutham.” “Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as “arbitrary” under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment.” Similar view has been expressed in B.C. Chaturvedi Vs. Union of India (1995) 6 SCC and State Bank of Patiala vs. S.K. Sharma (1996) 3 SCC 364. 9 If the judgment and award of the Tribunal is scrutinized in light of the propositions laid down in the afore mentioned decisions, it is impossible to find any fault with its refusal to interfere with the punishment imposed by the authorities below. In any case, the punishment imposed by first appellate authority, confirmed by the second appellate authority and the Tribunal, converting the order of SCA/1404/2004 8/8 JUDGMENT dismissal into reducing the petitioner to the lowest pay-scale in the cadre of driver with reinstatement in service and treating the period, during which he remained out of job i.e. period between dismissal and reinstatement, as leave without pay, cannot be dubbed as wholly arbitrary or shockingly disproportionate so as to warrant exercise of power by this Court under Articles 226 and 227 of the Constitution of India. 10 In the result, the petition fails and is rejected. Rule is discharged with no order as to costs. (ANANT S. DAVE, J.) (swamy)