IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3201 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? Yes 2. To be referred to the Reporter or not? Yes : 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? Yes 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? No 5. Whether it is to be circulated to the Civil Judge? : NO No -------------------------------------------------------------- AMC Versus MAHENDRABHAI JAYANTIBHAI SHUKLA -------------------------------------------------------------- Appearance: MR HS MUNSHAW for Petitioner MR HARDIK C RAWAL for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 16/06/2000 CAV JUDGEMENT In the present petition rule has been issued by this Court and granted ad-interim relief in terms of paragraph No. 8 (C) by order dated 30th April 1999. 2. In the present petition the petitioner has challenged the order passed by the Industrial Tribunal, Ahmedabad in Approval Application No. 35 of 1975 dated 31st March 1999 filed by the petitioner, which has been rejected by the Industrial Tribunal, Ahmedabad. Against the said petition the affidavit-in-reply is filed by the Respondent-workman, and affidavit-in-rejoinder is also filed by the respondent-workman. 3. When the matter has been taken up for hearing both the learned advocates requested to this Court to decide the present petition finally, and with the consent of both the learned advocates, matter has been taken up for final hearing on 20th April 2000, but the pronouncement of the decision is kept for today. 4. The brief facts of the present petition is that the respondent workman was working as a Conductor (Badge No. 1235) in Ahmedabad Municipal Transport Service. The allegations against the respondent-workman made by the petitioner Transport is that, on 19th September 1974 the respondent workman was on route No. 20/1 in Bus No. 371 in first shift . At about 8 a.m. near Bhagwatinagar bus stand the bus of the respondent workman was checked by checking staff and it was found that one passenger travelling from Civil to Silver Mills had issued ticket of Rs.0.40, bearing ticket no. 5775 and the said ticket is punched at the down and on up punched at 15 . Another two passengers travelling from Civil To Rajpur Tol Naka ticket No. 5776 and 5777 of Rs. 0.40 were issued, but were not properly punched by respondent workman. Another passenger travelling from Civil to Ambica Mill was issued ticket bearing no. 5778 by the respondent workman of Rs.0.40, which was also not punched properly by the respondent workman. The allegations against the respondent workman is that the four tickets of Rs.0.40 were not properly punched and these four tickets were used by the respondent workman from Maninagar to Civil at the time of going down which was recovered from the passengers and the same were utilised for upward journey. The allegation is that these four tickets were re-issued by respondent workman and he thus committed misconduct of misappropriation of Rs.1.60. On these allegations chargesheet was served to the respondent workman on 20th September 1974 on the basis of the report submitted by the ckecking staff on 19th September 1974. On the spot statement of the respondent workman was obtained by the ckecking staff, wherein he admitted the fact that these four tickets of Rs.0.40 each has been utilised in trip from Civil to Maninagar, that is upward journey. The default slip of Rs.1.60 was prepared by the checking staff . Reply to the chargesheet was submitted by the respondent workman on 27th September 1974. The respondent workman has submitted that at the time when the bus was checked he has taken the bus from depot just to test break of the bus. He also submitted that his duty time was noted by the controller and also noted the cash with him but the controller forgot to note the closing number of tickets . It is further stated in the reply that before issuing tickets to the passengers at the stand the bus was started with the permission of the controller. He also submitted that the driver has started the bus in a full speed and at points like Rambaug, L.G. Hospital and Picnic House, that is different stages have crossed and he was giving tickets from front side of the bus. When he reached rear side of the bus one passenger demanded six tickets for Sardaben bus stand. He immediately issued tickets of Rs.0.40 to the passenger but he refused to accept Rs.0.40 tickets and demanded the tickets of Rs.0.35. But in the meanwhile the respondent workman issued six tickets duly punched and because of this incident and misunderstanding between one passenger and the respondent workman said tickets were to be retained by the workman. Thereafter when the respondent workman looked at the voucher for writing Rajpur Tolnaka number, he realised that Controller at Maninagar bus stand has written in the voucher only the time and not the closing number of tickets and therefore these six tickets of Rs.0.40 were wrongly shown in closing ticket No. 5781 in place of 5775 and used these tickets for onward journey upto Civil. Respondent workman stated that it was not re-issued by him but because of the mistake which has been occurred at the time when he issued six tickets to a passenger, who refused to accept the same. 5. At Bhagwati bus stand the voucher was examined by the checking staff and they found that these four tickets of Rs.0.40 were re-issued by the respondent workman and they also recovered fare of Rs.1.60 from respondent workman. He also submitted that, at the time of checking he insisted to the checking staff to kindly check the cash for the tickets re-issued by him, but the checking staff refused to accede to his request. Respondent workman has also submitted that there was no dishonest intention to misappropriate the amount but because of the fact that the bus was late and different points/stages were passed and these stages were mixed and therefore these four tickets of Rs.0.40 were adjusted in the bloc. 6. On submission of the reply by the respondent workman, the departmental inquiry was initiated against him. In the departmental inquiry respondent workman remained present. In response to the questions asked by the Inquiry Officer, the reporter replied that whatever is submitted in the report by him is correct. The respondent workman has not cross-examined the reporter though opportunity was offered to him. In response to the question raised by the Inquiry Officer whether the misconduct alleged in the chargesheet has been admitted by the respondent workman or not, the reply was given by the respondent workman that the reply to the chargesheet given by him is correct. Thereafter the respondent workman was cross examined by the reporter. A question was asked to the respondent workman by the reporter that, when he started from Maninagar at about 7.10 a.m. what was the closing number of Rs.0.40 ticket at 75. Another question asked to him was, after issuing tickets at Maninagar whether he has noted down the numbers with the controller or not ?. Respondent workman said that he has not noted down the number with the controller but he closed the number at Sr.no. 81. The another question asked was at Rajpur Tolnaka what was the number written by him. In reply to it respondent said at Sr.no. 81 he closed the ticket at Rakhial and Sardaben bus stand as well at Civil hospital and at the time of starting from Civil Hospital the closing number of Rs.0.40 was at 81. The bus was checked at Bhagwati stand. The tickets of four passengers of Rs.0.40 bearing No. 5775 to 5778 were issued by him and recovered Rs.1.60 from the passengers. However he admitted that these facts were not informed to the controller. According to the defence of the respondent workman this incident had occurred because of some misunderstanding on the part of the passenger who asked six tickets from Maninagar. 7. Thereafter the Inquiry Officer has submitted the findings and opined that the defence of respondent workman was an after thought and the same was not believed. It was held that the respondent workman was liable for misconduct of dishonesty and misappropriation of Rs.1.60 . The respondent workman submitted his reply to the showcause notice and pointed out that he is having large family and the burden of maintaining the family is upon him. The incident was happened because of some misunderstanding, bona fide mistake on his part, the bus was late, the numbers of the closing tickets were not noted down by the controller at Maninagar at the time of starting point. He also pointed out in the reply to show cause notice that, in past no such incident has been occurred in his career and considering his defence he requested to the authority that he may not be treated to be dishonest and misappropriated the amounts. The Competent Authority, that is the Transport Manager has passed the order of dismissal on 18th January 1975, dismissing the respondent workman from the service. 8. The petitioner Transport Service has filed Approval Application No. 35/75 under sub section 2 (b) of Section 33 of the I.D. Act before the Industrial Tribunal, Ahmedabad. The Industrial Tribunal has initially rejected the approval application filed by the petitioner Transport Service by order dated 19-8-1975. The said order of Industrial Tribunal is challenged before this Court by the petitioner transport service. At the time of examining the order passed by the Industrial Tribunal in rejecting the approval application of the petitioner transport service, wherein the departmental inquiry which was conducted against the respondent workman was held to be illegal and invalid. The following observations has been made by the Division Bench of this Court as under:- " 72. To summarise our conclusions on various points dealt with above: (1) The initial fact finding enquiry may or may not be initiated by or at the instance of the disciplinary authority. (2) The second notice may or may not be given if the first notice is a composite one. (3) The notice calling upon the employee to show cause against the proposed punishment should advisedly be the decision of the competent authority, but unless some prejudice is shown, this would not vitiate the enquiry if the punishing competent authority ultimately addressed itself to the entire record and arrives at its conclusions; (4) The provisions of section 56 (3) of the Corporation Act and the Regulations made thereunder are not in any may repugnant to the provisions of the Standing Orders and both are consistent and are to be given effect to; (5) There was no valid delegation of his powers by the Transport Manager in favour of any of the authorities who had initiated inquiries or issued the show cause notices, but this does not affect the legality of the enquiries; (6) The provisions of standing order are by and large mandatory. (7) It is necessary to extend an opportunity to the management of the Transport undertaking to place before the Tribunal all materials and attempt to convince the Tribunal that the prima facie case for permission or approval under section 33 (1) (b) is there. 73. The result is that all the petitions in the above context are allowed. All the matters will now go back to the Tribunals and the Tribunals will extend an opportunity to the management to establish that punishments inflicted are proper. Rule is, therefore, made absolute in the above terms with no order as to costs. " 9. The Division Bench of this Court has remanded the matter back to the Industrial Tribunal to decide the Approval Application afresh after giving opportunity to the management to establish the punishment inflicted being proper or not. It is further directed to the petitioner transport service to place before the Tribunal all material and attempt to convince the Tribunal that prima facie case for approval under section 33 (2) (b) is there. After remanding the matter by the Division Bench of this Court, the Tribunal has examined merits of the matter. The Tribunal has considered this fact in para-5 that after the matter has been remanded back to the Industrial Tribunal the petitioner transport service has not led any oral evidence before the Tribunal and by Exhibit-16 the oral evidence has been closed by the petitioner transport service. Not only that the petitioner transport service has not produced any past record of respondent workman before the Tribunal. Thereafter respondent workman was examined vide Exhibit-14. The Tribunal has considered the evidence on record and also considered the oral evidence given by the respondent workman. Thus considering the incident occurred in the present matter and in view of the directions given by the Division Bench of this Court, the gravity of misconduct, and past record of the respondent work; the Industrial Tribunal has come to the conclusion that, after the matter was remanded back to the tribunal the petitioner transport service has not led any oral evidence, not produced any documentary evidence , not produced any past record of the concerned respondent workman and thereby held that prima facie the petitioner transport service has not proved the misconduct against the respondent workman. And, considering all these aspects the Industrial Tribunal rejected the Approval Application of the petitioner transport service by order dated 31-3-1999. 10. Learned advocate Mr. Munshaw appearing on behalf of the Petitioner- Transport Service has submitted that the approval application of the year of 1975 has been decided in the year 1999 and the fact of rejection of approval application by the Industrial Tribunal the respondent workman is entitled to full backwages and reinstatement in service after about 25 years. He also submitted that the Industrial Tribunal has ignored the materials on record which were on record and the documentary evidence available at the initial stage when the Tribunal has come to the conclusion that the departmental inquiry initiated against the respondent work is illegal and invalid. It is submitted that the Tribunal has ignored the materials on record and passed the order coming to the conclusion that the transport service has not produced any oral or documentary evidence and past record of the respondent workman, after remanding back the matter by the Division Bench of this Court. It is thus submitted by the learned advocate that the conclusion of the Industrial Tribunal is erroneous and the same required to be set aside. 11. As against that, learned advocate Mr. Rawal appearing on behalf of the respondent workman has submitted that the Industrial Tribunal has rightly passed the order which does not require any interference by this Court. He submitted that the order passed by the Division Bench of this court has been challenged by some of the workmen because that order was in a group of petitions and the same was challenged before the Apex Court in three Special Leave Petitions filed against the order of the Division Bench of this Court. He also submitted that honourable Apex Court has stayed the order dated 26th December 1995 passed by the Division Bench of this Court. It is further submitted that it was a common order passed in morethan 27 matters by the Division Bench of this Court. He also submitted that most of the employees consisted of conductors and drivers and naturally therefore all of them could not afford to approach the Apex Court but the fact remains that the common order of this Court was stayed by the Apex Court by order dated 30th September 1996. It is further submitted by Mr. Rawal that there were another four Special Leave Petitions filed by four appellants wherein interim relief was granted and ultimately the Apex Court has passed an order on 11-1-1996 disposing off all the four petitions. The copy of the said order has been produced on record at page-46 along with the reply. The Apex Court has passed the order that " all the four appellants were in service of Ahmedabad Municipal Transport Service. Out of the four appellants, Pravinbhai Ambalal has retired. Appellant Nilamuddin Rahimuddin has resigned. It is stated that so far as Ranabhai Prabhabhai is concerned, he is in service and working as Conductor. According to the learned counsel for the respondent , the record of Mohd. Ayub Abdul Hamid is not traceable. It is stated by learned counsel for the respondent that, despite the pendency of the appeals in this Court, Ranabha Prabhabhai is continuing in service because of the stay order granted by various Courts. That may or may not be the position of Mohd. Ayub Abdul Hamid. Be that as it may, if both the appellants or any one of them is still continuing in service, they shall be permitted to continue til they attain the age of superannuation. On superannuation they shall be entitled to retirement and post retiral benefits according to the rules." The four appeals are accordingly disposed of by the Apex Court. Learned advocate also submitted that, after the matter was remanded back to the Industrial Tribunal, the petitioner transport service has not produced any additional evidence or record and past record of the respondent workman and therefore the Industrial Tribunal has rightly rejected the approval application in absence of oral and documentary evidence. Learned advocate further submitted that in spite of the caveat filed by the respondent workman, the petitioner has obtained ex parte orders from this Court in the present Special Civil Application. 12. It is also submitted by learned advocate Mr. Rawal that, it is clear from the order passed by the Apex Court that in identical situation other employes are continuing on their job, whereas the respondent in the present petition is out of job and therefore the view taken by the Industrial Tribunal is right. 13. Considering the submissions of both the learned advocates, the question is required to be examined, as to whether the Industrial Court was right in rejecting the approval application by order dated 31-3-1999, and whether the petitioner transport service not produced the documental as well as oral evidence and past record of the respondent workman eventhough the opportunity was given ? Under such circumstances the matter is again required to be remanded back to the Industrial Tribunal with a liberty to the petitioner transport service to prove the misconduct by leading oral as well as documentary evidence against the respondent workman. 14. At this stage both the learned advocates submitted to this Court that, instead of remanding the matter back to the Industrial Court for granting opportunity to the petitioner transport service to lead oral evidence and to produce documentary evidence against the respondent, which will take another some years and in the meanwhile the respondent workman will retire from service. So ultimately after 25 years period the question of remanding back the matter to the Tribunal would have adverse consequences upon both the parties and considering these facts both the advocates jointly requested to this Court to decide the petition finally on merits, as if this Court is exercising powers similar to 11A of the I.D. Act 1947. In short the request of learned advocate is to examine the merits of the matter in respect to the gravity of misconduct and to decide finally whether the punishment imposed by the petitioner transport service to the respondent workman is proper or not. Both the learned advocates relied upon the decision of the Apex Court in case of WORKMEN OF BHARAT FRITZ WERNER (P) LTD. VS. BHARAT FRITZ WERNER (P) LTD & ANOTHER, JT 1990 (1) S.C. 305. The Apex Court observed that " The learned Judges were of the view that the said act of misconduct were not such as to deserve extreme penalty of dismissal and have directed that these workmen should be taken back to duty but with one half of the backwages.The learned Judges considered denial of one half of the backwages to the workmen as a sufficient punishment for the acts of misconduct committed by them. The aforesaid directions have been given by the High Court while exercising the powers which are exercised by the industrial tribunal in view of the joint memo dated June 22, 1984 submitted by both the parties, whereby it was requested that the court may decide the entire matter without remitting it to the Tribunal and grant appropriate relief finally in accordance with law. Moreover, in view of the provisions contained in Section 11-A of the Act, which empowers the industrial tribunal to go into the question whether the order of discharge or dismissal passed against a workman is justified or not and permits the tribunal to set aside the order of discharge or dismissal as the circumstances of the case may require, it was open to the High Court to consider what would be adequate punishment for the misconduct found to have been committed by these workmen and take the view that the acts of misconduct found proved against these five workmen were not such as to warrant dismissal and denial of one half of the back wages for the period of about six years was adequate punishment for the misconduct found to have been committed. We do not find any infirmity in the aforesaid view expressed by the Appellate Bench of the High Court. " 15. Both the learned advocates have relied upon the observations made by the Apex Court in above referred cases. The request of both the advocates is that, in the present case the allegations against the respondent workman is that he re-issued the four tickets of Rs.0.40 which comes to Rs.1.60 and in absence of past record whether the punishment of dismissal imposed by the Transport Manager is justified or not looking to the merits of the matter. Considering the request of both the advocates I am examining merits of the matter, considering the departmental inquiry produced before this Court and also considering the defence of respondent workman . It was pointed out in reply of respondent workman that it was a bona fide mistake on his part. He admitted that at Maninagar stand one passenger has asked for six tickets upto Sardaben stand and by mistake he issued six tickets of Rs.0.40 instead of Rs.0.35 from Maninagar to Sardaben stand. This mistake has been occurred because of bona fide misunderstanding between the passenger and respondent workman. The bus at the initial stage started late and because of that the driver drove the vehicle speedily. Because of this at different stages the number of tickets were mixed and were adjusted in the block which were already issued. In fact the said tickets has been used first time from Civil hospital and this reissuance of the tickets have been considered to be a misconduct and misappropriation of the amount. Considering the defence of the respondent workman that this incident has been occurred because of bona fide misunderstanding between one passenger and respondent workman. In the inquiry he admitted the fact but not admitted the misconduct. However at the time of passing dismissal order the past record of the respondent workman has not been considered, and the reply of the workman has not been believed by the petitioner authority. The respondent workman also replied to the show cause notice, wherein same defence was again put forward by him and he specifically mentioned that he has not admitted the charge. He admitted the fact that there is wast difference between admission of guilt and admission of fact. Considering the defence of respondent workman in the reply of chargesheet and in reply of show cause notice and considering the reply given by the respondent workman in departmental inquiry; in my opinion, the respondent workman has admitted the fact but not admitted the charge of re-issuing