IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 13370 of 1994 WITH SPECIAL CIVIL APPLICATION NO.446 OF 1995 WITH CIVIL APPLICATION NO.4849 OF 1995 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? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 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? 5. Whether it is to be circulated to the Civil Judge? : NO @ GSRTC Versus DL PATEL -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 13370 of 1994 MR HH JOSHI WITH VH DESAI for Petitioner No. 1 MR JS BRAHMBHATT for Respondent No. 1 MR HD DAVE AGE IN SCA NO.446/95 FOR STATE -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 04/04/2002 COMMON ORAL JUDGEMENT Heard Mr.H.H.Joshi, learned advocate with Mr.V. H. Desai, learned advocate on behalf of the petitioner Corporation and Mr.J.S.Brambhatt, learned advocate for respondent workman, as also, Mr. H.D.Dave, learned AGP for State Authority in Special Civil Application No. 446 of 1995. #. In Special Civil Application No.13370 / 1994, RULE has been issued by this Court on 19th December, 1994 and also granted ad-interim relief in terms of para-9[B]. Another group matter SCA No.446/95 has been admitted by this Court on 6th April, 1995 and ordered to be heard with SCA No.13370 / 1994. So far as, Special Civil Application No.13370 / 94 is concerned, petitioner Corporation has challenged the order passed by the Conciliation Officer, Valsad in Approval Application No. 55/ 93 dated 27th April, 1994, whereby the Conciliation Officer has rejected the approval application filed by the petitioner corporation under Section 33[2][b] of the Industrial Disputes Act, 1947, whereas, Special Civil Application No.446 / 95 has been preferred by the workman with prayer to implement the order passed by the conciliation officer and also sought direction for reinstatement of the petitioner workman and to pay him full backwages of interim period. #. Learned advocate Mr.H.H.Joshi appearing on behalf of the petitioner Corporation has submitted that the conciliation officer has ignored the past record of the concerned workman who had committed in all 28 defaults for collecting the fare and not issuing the tickets to the passengers. Mr.Joshi, learned advocate has submitted that the conciliation officer has come to an erroneous conclusion that penalty imposed by the competent authority is harsh. He also submitted that the conciliation officer has no jurisdiction to consider the gravity of charge and penalty imposed by the competent authority and he has no power under Section 11-A of the Industrial Disputes Act, 1947. Mr.Joshi, learned advocate has submitted that the Conciliation Officer while deciding the approval application, has to see prima facie case or reasonable opportunity was given or not; and there should not be victimization or not, whether notice pay was paid or not; but the Conciliation Officer has no jurisdiction to consider the gravity of the charge and the penalty imposed. It is further submitted that it is the jurisdiction of the Industrial Court while exercising the powers under Section 11-A of the I.D.Act and the powers of the conciliation officer has to see that whether the authority has followed the procedure laid down under the Act or not and whether concerned workman has been given an ample opportunity of being heard or not. If there is any lacuna in the departmental proceedings, in that case, the Conciliation Officer may not give approval and exercise his jurisdiction but in absence of any technical flow, the conciliation officer has no jurisdiction to interfere with the penalty imposed by the Corporation. Thus, the submission is, the conciliation officer has no jurisdiction to go into merits of the matter and therefore, the Conciliation Officer has no jurisdiction to pass such order. Learned Advocate Mr.Hasit Joshi has submitted that on merits, the respondent workman has committed serious misconducts recovering fares and not issued the tickets and thereby misappropriated the amount of the corporation, so also, Rs.62.65 ps was found in excess in cash box and therefore, in such situation, punishment of dismissal is reasonable and proper, which cannot be disturbed by the conciliation officer. Learned advocate Mr.Hasit Joshi also submits that there is no lacuna in the departmental inquiry and in absence of technical flow, the conciliation officer had no jurisdiction and discretion to exercise such powers and therefore the conciliation officer had no right to interfere with the punishment. It is also submitted that the story put forth by the concerned workman is concocted. Once in his defence, the workman says that the excess amount which has been found from the cash box is the amount which has been given to him by his relative but at no point of time, when at the time of recording his statement by the Checking Squad he has not made this statement before them and therefore, the defence put forward by the workman is contradictory and it is not required to be believed. Therefore, the conciliation officer has committed error in believing such theory and / or defence of the respondent workman. Learned advocate Mr.Hasit Joshi also submits that the reviewing authority has rightly exercised powers and imposed the punishment. Mr.Joshi, learned advocate for petitioner has mainly relied on observations in para 19 and 28 of decision in case of M/S Zuari Agro Chemicals Ltd. Gao v. Rosaria Fernandes delivered by the Gao High Court reported in 1986 Lab.I.C. 300 and pointed out that the Conciliation Officer has no jurisdiction to quash the order of punishment as there was no malafide intention on the part of the Corporation and therefore, the order passed by the Conciliation Officer is illegal and and bad in the eyes of law, which requires to be quashed and set aside by this Court. #. Learned advcoate Mr.J.S.Brambhatt appearing on behalf of the respondent workman has submitted that initially the competent authority has imposed punishment in respect of the misconduct after issuing chargesheet and after completion of departmental inquiry vide order dated 31st January, 1991 imposing punishment of stoppage of two increments with cumulative effect. Against said punishment order, the respondent workman has filed departmental appeal before the appellate authority and after period of one year and two months, the appellate authority has exercised the review powers and issued review show cause notice on 2nd March, 1992. Against said review show cause notice, the respondent workman has submitted reply on 28th March, 1992 and thereafter on 24th December, 1992 personal hearing was given by the review authority and workman was examined before the reviewing authority. Thereafter, the reviewing authority has passed the dismissal order against the respondent workman on 11th May, 1993. Therefore, learned advocate Mr.Brambhatt has submitted that the reviewing authority has no power to enhance the punishment in pursuance of review show cause notice and in the instant case, the Reviewing Authority has not given any reason in support of his decision as to why the case was reviewed by the reviewing authority. Mr.Brambhatt has also submitted that against punishment order dated 31st January, 1991, departmental appeal was filed before the same authority and same was pending but while deciding the review proceedings, no decision was taken in the said appeal proceedings. Learned advcoate Mr.Brambhatt has submitted that the reviewing authority has exercised the review powers taking additional evidence while examining the respondent workman and accordingly, enhanced the punishment which is clearly beyond the scope and jurisdiction of the authority. Mr.Brambhatt has also submitted that there was no appeal filed by the department to the appellate authority against said punishment. He also submits that reply which has been filed and explanation which has been tendered by the respondent workman in review personal hearing but same has not been taken into consideration by the reviewing authority. He also submits that the reviewing authority has no power like an appellate authority and it amounts to revisional powers while exercising the reviewing powers and therefore, the reviewing authority has no powers to enhance the punishment. Mr.Brambhatt has also submitted that under Clause [9] of the S.T. Discipline and Appeal Procedure, subsequently the powers of enhancement of punishment has not been provided and therefore, order passed by the reviewing authority is without jurisdiction, contrary to the procedure and therefore, this aspect has been rightly examined by the Conciliation Officer and rejected the approval application. Mr.Brambhatt has also submitted that the conciliation officer has rightly appreciated the evidence led in the departmental inquiry and come to the conclusion that all the documents relied on by the reviewing authority, has not been supplied to the respondent workman and finding also not given to the respondent workman and order passed by the reviewing authority is contrary to the principles of natural justice without jurisdiction and inquiry which was initiated is vitiated as observed by the conciliation officer. Thus, the conciliation officer has jurisdiction under Section 33-2-b of the Industrial Disputes Act, 1947. Mr.Brambhatt has relief on two decisions of the Apex Court in case of Lalla Ram v. D.C. M. Chemical Works reported in AIR 1978 SC 1004 and 1969 [2] LLJ 377. Relying on these two decisions, Mr.Brambhatt has submitted that the conciliation officer has also having powers to examine the validity of the finding; whether it is based on legal evidence or not. Therefore, the conciliation officer has rightly appreciated the merits and come to the conclusion that order of dismissing the respondent workman by reviewing the authority is without jurisdiction and therefore, the conciliation officer has not committed any error while rejecting the approval application and therefore, no interference is required by this Court while exercising the powers under Article 226 and 227 of the Constitution Of India. #. I have considered submissions of the learned advocates for the parties. S.T. Corporation has enacted Discipline Appeal Procedure for Gujarat State Road Transport Corporation employees under Service Regulations, 1980 of G.S.R.T.C Service Regulations. Under the said procedure, classification of misconduct has been prescribed. The act of the misconduct and minor lapses and delinquences. A detailed procedure from chargesheet to dismissal has also been prescribed under the procedure. The relevant clause [9], wherein the powers has been exercised by the concerned authority. Punishment provided under Clause [7], against which, appeal is available to the concerned employee under Clause [8]. The relevant clause [9] and therefore, certain important Clauses are quoted as under :- "9. The Appellate Authority may, suo moto call for the enquiry papers and review the decision in any case as it may deem fit." Another relevant clause [14] runs as under :- "14. The authority to whom an appeal lies under these provisions shall decide it himself and shall pass such orders on the appeal as he thinks fit, after verifying whether the prescribed procedure has been followed by the Enquiry Officer and whether there was any material irregularity likely to vitiate the decision of the Competent Authority or the 1st Appellate Authority in the case of a second appeal. In case the Appellate Authority feels that there has been such an irregularity it may direct the Competent Authority [ or the 1st Appellate Authority in case of a second appeal ] to make up the irregularity and to submit the case to the Appellate the Authority." Clause 20 says that; "20. The Appellate Authorities appointed by the Corporation for hearing appeals and reviewing cases are those shown in Schedule "C". Any officer higher than the prescribed Appellate Authority has inherent powers to call any case papers and review the decision or hear the appeal or direct any other authority to hear the appeal." #. Bare perusal of Clauses 9, 14 and 20 which are relating to the powers of the reviewing authority reflects that under Clause [9], there is no power specifically given to the reviewing authority to enhance the punishment. To enhance punishment is penal powers which required to be specified under the Rules. It is very settled principles interpretation of statute that whenever penal power is required to be exercised by the authority, then, it must have specific mention in the particular Rules in question. Therefore, considering this aspect, powers under Clause [9] have been specifically conferred on the appellate authority to suo moto call for the enquiry papers and review the decision in any case as it may deem fit. The powers to review decision cannot be impliedly understood as powers to enhance the punishment. The powers of review like revisional authority powers and not appellate powers. Therefore, there is limitation of powers of revisional authority and the authority at the most can remand the matter to the competent authority in case if any irregularity committed by the competent authority but he cannot enhance the punishment under the guise of reviewing decision. The powers to review the decision cannot be impliedly understood as powers to enhance the punishment. The powers of review is revisional powers and not the powers like appellate authority. However, the appellate authority is empowered to enhance the punishment and therefore, in absence of specific provisions, reviewing authority cannot enhance the punishment. Under the S.T. Discipline and Appeal Procedure, no specific powers are given to the reviewing authority to enhance the punishment imposed by the competent authority. Therefore, in the present case, the Divisional Controller being appellate authority has reviewed the decision of the competent authority and by way of decision in review, enhanced the punishment and dismissed the respondent workman from service. Therefore, considering the relevant Clause [9], according to my opinion, reviewing authority has no powers under the guise to review the decision to enhance the punishment because no specific provision is made in S.T.Discipline and Appeal Procedure and accordingly, the review authority while reviewing the decision, is not entitled to enhance the punishment. Therefore, the order of dismissal passed by the reviewing authority, is without jurisdiction. This aspect has been taken into account by the Conciliation Officer that reviewing authority has passed the order which is without jurisdiction. #. This aspect has been considered by the Bombay High Court in case of MAHARASHTRA STATE ROAD TRANSPORT CORPORATION V. R.D.TOPLEWAR AND ANTOHER reported in 1987 LAB.I.C. 789. The Maharashtra State Road Transport Corporation is also having similar Rules and Procedure, wherein also Clause [9] is pertaining to the review and that Clause [9] itself has been interpreted by the Bombay High Court. The relevant observations made in para-13 to 17 are referred as under :- "13. Proceeding now to the merits of the controversy, the first question which arises for consideration is the scope of review proceedings under Cl.9. Discipline and Appeal Procedure. The scheme of the said Discipline and Appeal Procedure would show that Cl. 7 provides for punishment to be meted out for the misconduct committed by the employees. It also provides whether the orders imposing punishment are appealable or not. Clause 8 enables an employee to file an appeal to the appellate authority prescribed in Schedule "C" or "D" of the said Discipline and Appeal Procedure. In cases of dismissal discharge, termination of services, reduction to lower posts, withholding of increment for a specific period and suspension by way of punishment, a second appeal is laid down under Clauses 10,14 and 15 of the said Discipline and Appeal Procedure. 14. Clauses of the Discipline and Appeal Procedure provides that the appellate authority may suo motu call for the enquiry papers and review the decision in any case as it may deem fit. It is this provision which calls for interpretation in this case. The learned counsel for the petitioner has urged that the expression " review the decision in any case as it may deem fit " would show that the whole case is open before the appellate authority in review and after reappreciating the whole evidence on record by itself it can come to its own conclusion and impose any punishment higher or lower other than the punishment imposed by the competent authority. The submission in other words is that the whole matter is open before the appellate authority as in the case of appeal. The further submission, refereeing to sub-cl.[c] of Cl.10. Discipline and Appeal Procedure is that when the appellate authority can consider whether the punishment is adequate or inadequate and when he is empowered thereunder to pass such Order as he thinks proper, it is open to the appellate authority to enhance the punishment in appeal. 15. In considering the scope of Cl. 9 , it is relevant to see that a right of appeal under Cl. 8 is conferred upon the delinquent employee aggrieved by the order of punishment against him. No right of appeal is provided to the department if the delinquent employee is acquitted in the departmental proceedings. In this context, the reason for enactment of Cl. 9 Discipline and Appeal Procedure is clear. Since no appeal is provided to the department, a power of review to the appellate authority is provided under Cl. 9 But it would not follow from the same that the power of review can be equated to the power of appeal. A proper reading of Cl. 9 would show that although the word " review" is used, in fact, it is the power in the nature of a revision as normally understood in law, which has a different scope from the appellate power. 16. Normally, the expression " review" is used when the same authority is empowered to reopen its own order. However, under Cl. 9 the power of review is conferred upon a different and higher authority. Further, the language used in Cl.9 namely, " the Appellate Authority may suo motu call for the enquiry papers" would show that the power intended to be conferred upon the appellate authority is in the nature of a revisional power. It may be seen that the competent authority to take disciplinary action against the employees of the petitioner Corporation is well conversant with the rules and procedure in the Corporation and it is, therefore, understandable that when, after considering thee material before him, the competent authority comes to a conclusion that the delinquent employee should be acquitted, such an order of acquittal should be reopened by the higher departmental authorities in rare cases such as when the procedure followed by the competent authority or the enquiry officer is not proper or is against the principles of natural justice or when some material irregularities committed by the competent authority in arriving at his decision. It is, therefore, that a power of review which as discussed above, is a revisional power conferred upon the appellate authority. 17. In regard to the appellate authority, Cl.14 Discipline and Appeal Procedure shows that the said authority can pass Orders on the appeal as it thinks fit after verifying whether the prescribed procedure has been followed by the Enquiry Officer and whether there was any material irregularity likely to vitiate the decision of the competent authority. In my view, considering all the above circumstances, the power conferred under Cl.9 Discipline and Appeal Procedure, cannot be equated with the power in appeal under the said Discipline and Appeal Procedure. Even treating it as a review as it mentioned in the said Cl.9 on the identical phraseology used in the Rent Control Order, this Court in the case of Tukaram Nathuji Vs. Dayalnath Dudhanath, reported in 1985 Mah LJ 37 [ AIR 1986 Bom 109 ] has laid down that in review proceedings it is not open to the Court to reappreciate the evidence on record and to interfere with the order under review only because some other view is possible on the basis of the material on record. In this view of the matter also, the jurisdiction of the reviewing authority under Cl.9 Discipline and Appeal Procedure is limited and cannot be equated with the appellate jurisdiction. Since I am holding in the facts and circumstances of the instant case that the appellate authority was in error in interfering in his review jurisdiction under the aforesaid 9, I do not think it necessary to consider the question whether or not in appeal or in review it is open to the appellate authorities to impose higher punishment upon the delinquent employee. #. This aspect of review has also been considered by Allahabad High Court in case of JITENDRA PAL SINGH BHADAURIA V. THE CHAIRMAN AND MANAGING DIRECTING AND REVIEWING AUTHORITY ALLAHABAD BANK AND OTHER reported in 1998 [78] FLR 816. The Division Bench of the Allhabad High Court has observed that as the reviewing authority was enhancing the penalty the law requires consideration of the grounds in reply and giving reasons in the final order in such cases. Had there been concurrence as regards finding and penalty, detailed reason would not have been required. But, in the present case, as enhancement of penalty has been resulted, the reviewing authority was required to give reasons after dealing with the contentions of the petitioner made in his reply to show cause notice and therefore, in absence of such reasons, we are of the opinion that requirement of law has not been satisfied and the order is liable to be quashed. Relevant observations made in para-9 to 13 are reproduced as under :- "9. The law in this connection has also been decided in the case of State Bank of Bikaner & Jaipur and others v. Prabhu Dayal Grover, wherein the provision of the concerned service Regulations were considered and it was held that "when the Disciplinary Authority agrees with the findings of the Enquiry Officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to reappraise the evidence to arrive at the same findings." 10. We find that the law has also been considered in this respect in case of S.N.Mukherjee V. Union Of India, and the relevant finding therein runs as follows :- "The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge." 11. After considering the aforesaid view, we are of the opinion that the law in this respect has already been settled that giving of reasons is an essential element of orders of administrative authority and right to reason is indispensable part of sound system of judicial review. Even the appellate authority when reverses the order of trial authority, is required to give sufficient reason showing the reasons of reversing the earlier order. But, in case the appellate authority or any subsequent authority concurs with the findings of the order impugned before it and it affirms the said order, it need not give separate reasons. 12. In the present case show cause notice had been issued giving reasons as to why power of review was being proposed to be exercised. It appears that the petitioner submitted his reply to the said show cause notice and a copy of the said reply has been annexed at Annexure No.26 to the writ petition. A perusal of the said reply indicates that the petitioner has taken various objections in his reply as regards review proposing imposition of penalty of dismissal which means penalty was being enhanced. 13. The impugned order at Annexure No.27 to the writ petition does not clearly give the reasons dealing with the said objections taken in the reply filed by the petitioner to show cause notice in the review proceeding. As the reviewing authority was enhancing the penalty the law requires consideration of the grounds in reply and giving reasons in the final order in such cases. Had there been concurrence as regards fining and penalty, detailed