SCA/16248/2004 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16248 of 2004 For Approval and Signature: HON'BLE MR JUSTICE M.R. SHAH ============================================================== 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,GUJARAT STATE ROAD TRANSPORT CORP. - Petitioner(s) Versus HIRALAL JATASHANKAR PANDYA - Respondent(s) ============================================================== Appearance : MS MONALI H BHATT for Petitioner No(s).: 1. MR MUKESH RATHOD FOR MR.GK RATHOD for Respondent No(s).: 1. ================================================================== CORAM : HON'BLE MR JUSTICE M.R. SHAH Date : 06/07/2005 ORAL JUDGMENT 1. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner – GSRTC has challenged the judgment and award passed by the Industrial Tribunal, Vadodara dated 21.2.2003 passed in SCA/16248/2004 2/8 JUDGMENT Reference (IT) No.92 of 2001 in partly allowing the same and by quashing and setting aside the order passed by the appellate authority of putting the respondent workman to the minimum pay scale to withholding of three increments without permanent future effect. 2. The respondent workman was serving as Conductor. ON the allegation that the petitioner did not issue tickets to 12 passengers, departmental inquiry was initiated against the him and chargesheet was served upon him. After conclusion of the inquiry, the disciplinary authority imposed punishment of dismissal. Being aggrieved and dissatisfied with the order of dismissal, the respondent workman preferred appeal before the appellate authority. The appellate authority reduced punishment from dismissal to putting the respondent workman to the minimum of the pay scale. Being aggrieved and dissatisfied with the same, the respondent workman raised the industrial dispute which was referred to the Industrial Tribunal, Vadodara which was numbered as Reference (IT) No.92 / 2001. 3. The Industrial Tribunal by judgment and award dated 21.2.2003 partly allowed the said reference by quashing and setting aside the order passel by the appellate authority of putting the petitioner to the SCA/16248/2004 3/8 JUDGMENT minimum of the pay scale and imposed punishment of withholding of three increments without permanent future effect. Being aggrieved and dissatisfied with the same, the petitioner Corporation has preferred the present special civil application under Articles 226 and 227 of the Constitution of India. 4. Ms.Monali Bhatt, learned advocate appearing on behalf of the petitioner corporation has vehemently submitted that in the facts and circumstances of the case, the Industrial Tribunal has materially erred in quashing and setting aside the order of putting the respondent workman to the minimum of the pay scale and imposed the punishment of only withholding of three increments without future effect. It is submitted that the distance between the bus stand and the place of checking was 18 kilometers and there was sufficient time with the respondent workman to issue tickets to the passengers. However, the respondent workman did not issue tickets to the passengers and therefore, the tribunal has materially erred in holding that the charge against the respondent workman is not proved. It is also further submitted that in fact the dispute as raised after in fact 17 years and there were so many defaults in the credit of the respondent workman which is not considered by the Industrial Tribunal while reducing and substituting the punishment and SCA/16248/2004 4/8 JUDGMENT therefore, it s requested to allow the present special civil application. 5. Per contra, Shri Mukesh H.Rathod, learned advocate appearing on behalf of the respondent workman has opposed the present special civil application and ha vehemently submitted that so far as the question of delay is concerned, the same was not raised and opposed by the petitioner before the Industrial Tribunal. It is also submitted that on appreciation of the evidence, the tribunal has specifically come to the conclusion that checking was conducted by the checking squad only after a period of 15 minutes and out of 69 passengers, 57 passengers were already issued tickets and before the respondent workman could issue thickets to the other remaining passengers, there was checking and there was no malafide intention on the part of the respondent workman, more particularly, as such there is no allegation that the respondent workman had collected the fare and not issued the tickets. He has further submitted that so far the alleged past defaults are concerned, nothing was produced before the Industrial Tribunal and therefore, the cannot be pressed into service before the writ court and considered at this stage while exercising the jurisdiction under Articles 226 and 227 of the Constitution of India. He has further submitted that so far as the respondent workman is concerned, he is already retired SCA/16248/2004 5/8 JUDGMENT with effect from 31st March, 2004 and therefore, it is requested to dismiss the present special civil application. 6. Heard the learned advocate on behalf of the parties. 7. The respondent workman was chargesheeted alleging inter alia that twelve passengers were not issued tickets. However, it was the defence on behalf of the respondent workman that bus was overloaded and at the time when there was raid by the checking squad, the booking was going on. It is required to be noted that out of 69 passengers traveling in the bus, 57 passengers were already issued tickets. It is also required to be noted that within 15 mint us from the last destination from where said 12 passengers were boarded the bus, there was checking. It might be that distance was 19 kms as contended on behalf of the petitioner but so as far the time gap was concerned, it was only 15 minutes and even the way bill was also open and as such, there is no allegation that the respondent workman had collected any fare and not issued the tickets. Considering the aforesaid facts and circumstances and the evidence on record, and considering that there might be some negligence on the part of the respondent workman. Even the Tribunal has held that there was some misconduct on the part of the respondent SCA/16248/2004 6/8 JUDGMENT workman. It is required to be noted that the Industrial Tribunal has reduced the punishment to withholding of three increments without permanent effect. On appreciation of evidence, the Industrial Tribunal has held that to put the respondent workman to the minimum of the pay scale was disproportionate to the charge proved. However, considering the evidence on record and the finding of the Industrial Tribunal that there was some negligence on the part of the respondent workman and he has committed some misconduct, reduction of punishment of withholding of three increments without permanent effect can be said to be punishment on lower side and is not justified. Under the circumstances and considering the facts and circumstances and evidence on record, according to this court, if the punishment imposed by the Industrial Tribunal is enhanced and/or substituted by directing to withhold one increment with future permanent effect would be justified and in the fitness of things. 8. Now the question which is required to be considered is that on substituting the punishment to the aforesaid extent, from which date the respondent workman would be entitled to the arrears. Ms.Bhatt, learned advocate appearing on behalf of the petitioner is justified in making grievance that though the earlier punishment was imposed in the year SCA/16248/2004 7/8 JUDGMENT 1984 by the appellate authority, industrial dispute came to be raised by the respondent workman in the year 2001, there is no question of payment of arrears to the respondent workman as for the delay on the part of the respondent workman, the Corporation should not be made to suffer. Considering the aforesaid facts and circumstances and delay on the part of the respondent workman in raising industrial dispute by challenging the order passed by the appellate authority, the respondent workman deserves to be awarded arrears on substitution of the punishment from the date of making of the reference. On the other hand, it is required to be noted that the petitioner corporation did not raise any objection with regard to delay before the Industrial Tribunal. It is also required to be noted that though it was submitted on behalf of the petitioner that there were 90 past defaults in the credit of the respondent workman but nothing was produced before the Industrial Tribunal. 9. For the reasons stated above, the judgment and award passed by the Industrial Tribunal, Vadodara dated 21.2.2003 passed in Reference (IT) No.92 / 2001 is hereby modified to the extent that instead of withholding of three yearly increments without permanent future effect, there will be punishment of withholding of one increment with future effect and the respondent workman would be entitled to the arrears on SCA/16248/2004 8/8 JUDGMENT above substitution of the punishment only from the date of making of the reference, meaning thereby, the respondent workman will not be entitled to any arrears on substitution of the punishment from the date of passing of the order till making of the reference. Arrears to be paid to respondent workman accordingly as early as possible within a period of one month from the date of receipt of this order. 10. Rule is made absolute to the extent indicated hereinabove with no order as to costs. [ M.R.Shah, J.] =kailash=