LPA/1429/2006 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1429 of 2006 In SPECIAL CIVIL APPLICATION No. 2782 of 2002 With CIVIL APPLICATION No. 13057 of 2006 In LETTERS PATENT APPEAL No. 1429 of 2006 For Approval and Signature: HONOURABLE MS. JUSTICE R.M.DOSHIT 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 ? ========================================================= AHMEDABAD MUNICIPAL TRANSPORT SERVICE - Appellant(s) Versus MOHAMMAD SHAKIL NIZAMBHAI SHAIKH & 2 - Respondent(s) ========================================================= Appearance : MR MG NAGARKAR for Appellant(s) : 1, MR VM DHOTRE for Respondent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER LPA/1429/2006 2/7 JUDGMENT Date : 11/03/2008 ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) Heard the learned advocates. With the consent of the learned advocates, the Appeal is heard and decided today. This Appeal preferred under clause 15 of the Letters Patent arises from the order dated 6th August, 2002 made by the learned Single Judge in above Special Civil Application No.2782/2002. The appellant-writ petitioner is the Ahmedabad Municipal Transport Service (hereinafter referred to as, “the Transport Service”). The respondents are the delinquent workmen. It appears that for certain acts of offence committed by the respondents-workmen, on 2nd May, 2000 a complaint came to be lodged by the Transport Service against the respondents and others at Haveli Police Station, Ahmedabad. In respect of the said complaint, the delinquent and others are prosecuted LPA/1429/2006 3/7 JUDGMENT in Criminal Case No.542/2000, pending before the Metropolitan Magistrate Court, Ahmedabad. Pending the said criminal case, a disciplinary proceeding has been initiated against the delinquent workmen for the said acts of misconduct amounting to lack of integrity, criminal breach of trust, financial irregularities, etc. Feeling aggrieved, the respondents filed Complaints Nos.239, 240 and 241 of 2001 under Section 33A of the Industrial Disputes Act, 1947 before the Industrial Tribunal, Ahmedabad. According to the delinquent workmen, certain demands of the workmen were pending adjudication before the Industrial Tribunal. Pending the said proceeding before the Industrial Tribunal, the Transport Service was about to alter the conditions of their service to their detriment in violation of Section 33(1) of the Industrial Disputes Act, 1947. Pending the said complaints, they prayed for stay of the disciplinary proceeding. By order dated 29th September, 2001 made below application Exh.2, the Industrial Tribunal permitted the Transport Service to conduct the disciplinary proceeding against the LPA/1429/2006 4/7 JUDGMENT respondents but restrained the Transport Service from making final order without the express permission of the Court or till the Criminal Court decided the matter pending before it. The said order was challenged before the learned Single Judge in above Special Civil Application, which came to be rejected. Therefore, the present Appeal. Mr.Nagarkar has submitted that considering the gravity of the misconduct allegedly committed by the delinquent workmen, they are placed under suspension. The Transport Service has been directed not to make final order in the disciplinary proceeding and to continue to pay subsistence allowance to the workmen. He has submitted that the order of the learned Single Judge is contrary to the law settled by the Hon'ble Supreme Court in the matter of State of Rajasthan v/s. B.K.Meena and others [AIR 1997 SC 13] followed in several other judgments including the judgment in the matter of Kendriya Vidyalaya Sangathan and others v/s. T.Srinivas [AIR 2004 SC 4127]. Mr.Dhotre has contested the Appeal. He has LPA/1429/2006 5/7 JUDGMENT submitted that the charge made against the respondents in the criminal case and in the disciplinary proceeding are identical. The cause of action is also the same incidence. In the circumstances, the disciplinary proceeding cannot be proceeded further pending the criminal prosecution. He has also submitted that the criminal prosecution is now at the fag end. At this stage, no disciplinary proceeding shall be proceeded with against the delinquent workmen. The rojkam which has been produced before us is upto the month of November, 2006. We are informed at the bar that two of the accused persons do not remain present before the Criminal Court. For that reason, the prosecution has not proceeded further. The real matter at issue is, whether the Industrial Tribunal was justified in making the above referred order dated 29th September, 2001. Section 33(1) of the Industrial Disputes Act prohibits an employer from altering the conditions of service of the workman pending the conciliation proceeding LPA/1429/2006 6/7 JUDGMENT without the express permission of the authority concerned. In our opinion, initiation of the disciplinary proceeding against a workman does not amount to alteration of the conditions of service of such workman. No cause of action, therefore, had arisen to the delinquent workmen to file Complaints Nos.239, 240 and 241 of 2001 under Section 33A of the Act. The Industrial Tribunal had erred in restraining the Transport Service from making final order against the delinquent workmen by its order dated 29th September, 2001 made below application Exh.2. The learned Single Judge also has erred in examining the matter independent of the complaints filed before the Industrial Tribunal and without considering, whether the Industrial Tribunal had jurisdiction to make such order. Further, it is now well settled by above referred judgments that even pending criminal prosecution the disciplinary proceeding in respect of the very charge can proceed further. In case the charges are proved, the punishment also can be imposed upon the delinquents. We are, therefore, unable to agree with Mr.Dhotre that pending the criminal proceeding the Transport Service shall not LPA/1429/2006 7/7 JUDGMENT proceed with the disciplinary proceeding against the delinquent workmen. For the aforesaid reasons, we allow this Appeal. The impugned order dated 6th August, 2002 made by the learned Single Judge in above Special Civil Application No.2782/2002 and the order dated 29th September, 2001 made below application Exh.2 in Complaints Nos.239, 240 and 241 of 2001 by the Industrial Tribunal, Ahmedabad are quashed and set- aside. The Civil Application stands disposed of. The parties will bear their own cost. Learned advocate Mr.Dhotre has requested that this order be stayed for a period of six weeks. The request is rejected. (K.M.Thaker, J.) (Ms. R.M.Doshit, J.) /moin