IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4521 of 2002 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 @ G S R T C Versus RAJESHBHAI L ROHIT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 4521 of 2002 MR SUDHANSHU S PATEL for Petitioner No. 1 .......... for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 30/04/2002 ORAL JUDGEMENT Heard learned advocate Mr. Sudhanshu Patel for the petitioner corporation. By way of this petition, the petitioner has challenged the award made by the labour court, Himatnagar in Reference No. 56 of 1997 dated 22nd May, 2001 whereby the labour court has granted reinstatement with continuity of service but without back wages for the intervening period and further imposed punishment of stoppage of two annual increments with cumulative effect. Learned advocate Mr. Patel for the petitioner has submitted that the labour court has committed gross error in exercising the powers under section 11-A of the Industrial Disputes Act, 1947. He has also submitted that before the labour court, papers of departmental inquiry were produced by the corporation and on the basis of the said papers, the labour court has come to the conclusion that the misconduct as alleged against the respondent has been found to have been proved and whatever procedure adopted by the corporation for holding departmental inquiry has also been held to have been legal and valid and, therefore, in view of such situation, the labour court ought not to have exercised the discretion under section 11-A of the Industrial Disputes Act, 1947 in favour of the respondent workman. According to his submission, since the respondent was facing the charge of misappropriation and dishonesty, the labour court was not justified in exercising the discretion under section 11-A of the Industrial Disputes Act, 1947 in favour of the respondent workman. He has submitted that such exercise of powers in such a situation has been held to be contrary to law by the Division Bench as well as the learned single Judge of this Court. According to him, in view of the seriousness of the charge proved against the respondent workman and also in view of the past record of the respondent workman wherein he has committed in all fifty defaults, the labour court was not justified in exercising the discretion under section 11-A of the Industrial Disputes Act, 1947 in favour of the respondent workman and, therefore, the labour court was not justified in awarding reinstatement in favour of the respondent workman in view of the past record and seriousness of the charge. Reliance has been placed by Mr. Patel on the decision of this court in Special Civil Application No. 7682 of 1988 dated 8th December, 2000 as well as the decision of the Division Bench of this Court in Letters Patent Appeal No. 225 of 1996 dated 9th December, 1998. He has also relied upon two decisions of the apex court in case of Union of India versus Kulamony Mohanty and Others reported in AIR 1999 SC 2114 as well as the decision in case of Om Kumar and others v. Union of India reported in AIR 2000 SC 3689 and has emphasized on the submission that when the charge of dishonesty and misappropriation has been found to be proved by the concerned Court,then, in such case, interference with the order of punishment or modification of the punishment imposed by the disciplinary authority is not justified and in such a cases, dismissal is the only proper punishment and, therefore, in view of the principles laid down in the aforesaid decisions, labour court is not justified in passing the award in question. According to his submission, even the judicial review is also having limitation to enter into the merits and reappreciate the evidence and, therefore, according to him, award in question made by the labour court is required to be set aside. Thus, except these submissions as regards exercise of the powers under section 11-A of the Industrial Disputes Act, 1947, no other submissions have been made by Mr. Patel. In view of such submissions made by Mr. Patel, merits of the matter are required to be examined by this Court. On 6.8.1995, the respondent workman was on duty in the bus on the route Himatnagar - Jorapur; the bus was checked by the checking officers at Navalpur and by making report, it was alleged against the respondent that from one passenger going from Mehtapura to Khedawada, an amount of Rs.3.00 was recovered but the ticket was not issued on the spot and by recovering fare of Rs.3.00 from the passengers from Himatnagar to Dejrota, ticket has not been issued on the spot till the checking point. Pursuant to the said report, the respondent was served with charge sheet no. 270 of 1995. On the basis of the aforesaid charges, departmental inquiry was initiated against the respondent workman and thereafter, the workman was dismissed from service on 27th March, 1996. Against the said action of dismissal, the workman concerned has raised industrial dispute which was referred for adjudication 28th February, 1997. Before the labour court, the respondent workman has filed the statement of claim at Exh. 5 and written statement thereto was filed at Exh. 12 and thereafter, the respondent has produced documentary evidence list at Exh. 13 wherein copy of the charge sheet, reply, copy of the report and copy of the deposition of the reporter and the findings as well as the show cause notice as well as the dismissal order and rejection of appeal have been produced. Before the labour court, the respondent has filed purshis at Exh. 14 and thereby has not challenged the legality and validity of the departmental inquiry but has raised objection about the validity of the findings recorded by the inquiry officer. Thereafter, the respondent was examined at Exh. 15 before the labour court and his evidence was cross examined by the petitioner corporation. Thereafter, documentary evidence was produced by the corporation vide list Exh.16 wherein all the relevant papers have been produced including default card of the respondent workman. Here, it should be noted that before the labour court, the petitioner has filed written statement and then vide list at Exh. 16, documentary evidence has been produced but, except that, the petitioner corporation has remained absent before the labour court. No oral evidence has been led by the corporation before the labour court. In para 7 of the award in question, the labour court has observed in this regard that no oral evidence has been led by the corporation for substantiating the contentions raised by it in its written statement and to prove the documents produced by it vide list Exh. 16. Since the corporation was not remaining present before the labour court and was also not producing oral evidence, the respondent has given purshis at Exh. 19 and has requested the labour court to keep this matter for orders and ultimately the labour court heard the arguments of the respondent workman and thereafter framed issue as to whether the findings given by the competent authority are legal and valid or not and whether the respondent is entitled for the reinstatement in service or not. The labour court has considered the allegations made against the respondent workman wherein it was alleged against the respondent that from one passenger going from Mehtapura to Khedawada, an amount of Rs.3.00 was recovered but the ticket was not issued on the spot and by recovering fare of Rs.3.00 from the passengers from Himatnagar to Dejrota, ticket has not been issued on the spot till the checking point. The charge sheet was served under clause 7A, 12B, 29, 22 and 27 under the ST Discipline Procedure. Thereafter, the labour court has considered the findings recorded by the competent authority and has considered that the two passengers examined during the course of departmental inquiry were declared hostile and, therefore, their evidence was not believed by the competent authority and the competent authority has relied upon the evidence of the reporter for coming to the conclusion that the misconduct as alleged against the workman has been proved against the respondent workman. Thereafter, the competent authority has relied upon the spot statement of the passenger and the respondent workman and considering 24 years' service and fifty defaults in past wherein four defaults were relating to collection of fare and non issuance of the tickets and except the four defaults, other defaults are not relating to dishonesty and/or misappropriation. Thereafter, the competent authority issued show cause notice and called upon the respondent to submit explanation that such negligent and dishonest employee should not be continued in service and asked him to show cause why he should not be removed from service. Here, it is also required to be noted that the show cause notice was issued by the competent authority considering fifty defaults committed by the workman in past as mentioned in the show cause notice but no past record has been attached to the said show cause notice or the findings. Meaning thereby, when the explanation has been called from the workman relying upon fifty defaults allegedly committed by the workman in past, in such circumstance and situation, it is the duty of the corporation to supply copy of the past record to the workman for enabling him to explain in that regard and also for giving him reasonable opportunity about his past record. It is not disputed by the corporation that in findings, fifty defaults have been taken into account by the competent authority but it is not clear as to whether these fifty defaults have been taken into account for passing the order of dismissal or not. It was merely referred to in the finding but in ultimate finding, it is mentioned that the respondent is held guilty under clause 7A, 12B, 22, 27 and 11 and why he should not be dismissed from service of the corporation but it is not mentioned in the finding that relying upon that and looking to the gravity of misconduct and considering the past record, why he should not be dismissed. Mere reference of past misconduct is not enough but it should to be mentioned whether the past record has been taken into account or not for taking the decision of dismissal and if the past record has has been taken into account for passing the order of dismissal, then, copy of the past record must have to be given to the respondent alongwith the finding so that he can have an opportunity to explain about his past conduct and past record and to say some thing about his past conduct to the competent authority but no such opportunity has been given to the respondent because alongwith the copy of the finding, copy of the past record was not supplied to the respondent workman and thereafter, the labour court has considered the decision of the apex court reported in AIR 1985 SC 1115 and has then considered the family circumstances of the respondent and has also considered the fact that looking to the misconduct of recovery of fare of Rs.8.50 from three passengers without issuing tickets upto the checking point cannot be considered to be the serious misconduct and was of the view that some other punishment is required to be imposed in place of dismissal and, therefore, based upon such considerations, the labour court exercised the powers under section 11-A of the Industrial Disputes Act 1947 and set aside the order of dismissal and ordered for reinstatement of the workman and has further imposed punishment of stoppage of two annual increments of the workman with recurring effect. Even on that count also, the labour court has observed that in the present proceedings, the petitioner corporation has been remaining absent and no oral evidence has been led by the corporation and no oral submissions have been made by the corporation before the labour court. Thereafter, the labour court has considered the past record and considering past record, has imposed punishment of stoppage of two increments with future effect. Learned advocate Mr. Patel has submitted that in case of dishonesty and misappropriation of the funds of the corporation, reinstatement ought not to have been granted by the corporation in exercise of the powers under section 11-A of the Industrial Disputes Act, 1947. In support of such contention, he has relied upon the decision of this Court in Special Civil Application No. 7682 of 1988 dated 8th December, 2000 wherein this Court (Coram : B.C. Patel,J.) has observed as under in para 8 of the judgment : " Thus, considering the aforesaid decisions, it is clear that under section 11A of the Industrial Disputes Act, the Industrial Tribunal or Labour Court is not having unguided power to set aside the justified order passed by the management. The power under section 11A has to be exercised judicially and the Industrial Tribunal or Labour Court can interfere with the decision of the Management under section 11A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. The Court in case of GSRTC vs. KM Parmar (supra) pointed out that this Court has repeatedly held that misappropriation, if held established, would be a major misconduct and normally dismissal order passed by the competent authority should not be interfered with by the Labour Court or the Industrial Court under section 11A of the Industrial Disputes Act. " Thereafter, in para 11 of the said judgment, this Court has observed as under: " The Court pointed out that it was not a case of momentary temptation or a solitary instance of indulging in misappropriating public funds. It was also pointed out that on account of unemployment, many persons are waitlisted with Employment Exchanges many with higher qualifications. Persons who are employed must think that they are better placed than others i.e. those who are waiting in queue for employment. Such employed persons must bear in mind this aspect and when they are in government or public sector, they should see that nothing is reflected against them for want of proper care or because of any misconduct. When an employee has misconducted himself, then, considering the nature of misconduct, orders must be passed. In that case, looking to the repeated acts reflected in the order and the default card, the Court expressed opinion that the impugned order made by the learned Single Judge was required to be confirmed stating that let others waiting in queue get the chance of serving as the person who was appointed has grossly misconducted himself." He has also relied upon the decision of the Division Bench of this Court in Letters Patent Appeal No. 225 of 1996 dated 9th December, 1998 wherein the Division Bench of this Court (Coram : B.C. Patel & M.S. Shah,JJ.) has observed as under in para 11 and 12: "11. Learned Single Judge observed that "looking to the gravity of charge of misappropriation of funds by regularly correcting way bills which has been accepted to be true by the tribunal, it does not stand to reason that any punishment less than dismissal from service could warrant, could be justified. It is required to be noted that the Labour Court came to the conclusion that the finding of the departmental inquiry was legal and proper". The appellant was, therefore, held guilty of misappropriating public funds. In such a case, the Labour Court ought not to have interfered with the punishment which was awarded to him by the employer. The Labour Court lost sight of the employee's conduct and his past record. It overlooked the facts that even prior to the several instances mentioned in the record, the appellant misconducted himself on several occasions and was punished. In a case where an employee dealing with public funds is found misappropriating the funds of the Corporation on repeated occasions, it would be unwise to keep such a person in public employment. 12. This is not a case of momentary temptation or a solitary instance of indulging in misappropriating public funds. If there is a good past record and on account of compulsion employee is found misconducting once, question of proportionate punishment may arise. Tribunal has seriously erred in passing an order of reinstatement in the same post without imposing any punishment. Withholding backwages is not an order of punishment. Again, by reinstating on the same post, the Tribunal has lost sight of opportunities available to indulge in similar activities. In case of a bus conductor who is found guilty for misappropriating, punishment must be deterrent to him as also to others. Common man would be the suffer in case of a conductor found guilty of misappropriating funds of a Corporation which is a public undertaking. In our opinion, the appellant, a bus conductor who is found guilty misappropriating public funds not once but looking to the record on several occasions deserves no sympathy as GSRTC had no faith in him because he misconducted himself, has rightly taken the decision. Decision taken rightly cannot be substituted because of misplaced sympathy by stating that no record of past misconduct is produced though in fact it was produced." He relied upon the decision of the apex court in case of Union of India versus Kulmony Mohanty and others reported in 1999 SC page 2114 wherein the apex court has observed as under in the Head Note itself : "Administrative Tribunals Act (13 of 1985) S. 14 - Interference with quantum of punishment Legality - Punishment of compulsory retirement imposed on employee on grounds of having committed breach of trust of amount payable to another employee - Tribunal found on facts, that finding regarding commission of breach of trust is based on material - Tribunal not disturbing said finding, but interfering with quantum of of punishment - Commits illegality - Punishment imposed neither excessive nor disproportionate Tribunal cannot interfere with quantum even within discretionary powers - Plea of leniency on grounds of lapse of long period from date of misappropriation - Employee already retired and his son suffering from bone cancer had died Employee held entitled to superannuation benefits. " He has also relied upon the decision in case of Pavankumar versus Union of India reported in AIR 2000 SC 3689. Head Note G and H of the said decision are reproduced as under: "(G) Administrative Law - Administrative decision - imposing punishment in disciplinary cases - Judicial review - Confined to Wednesbury principles only. Constitution of India Art. 311. Industrial Disputes Act (14 of 1947), Sch.2, Item 6." "(H) Constitution of India, Art.311 Punishment imposed on delinquent employee Interference Irregularity in grant of DDA land to a company Delinquent senior most officer in DDA Disciplinary Authority finding his misconduct proved. However, imposing minor penalty of censure - Minor penalty imposed considering the complicated stage at which delinquent was required to handle case and absence of mala fides - It cannot be said that among permissible minor punishments, the choice of punishment of 'censure' wasviolative of Wednesbury Rules - Case hence not referred to the Vigilance Commissioner for the upward revision of punishment. Administrative Law - Punishment imposed by Disciplinary AUthority - Judicial Review " In support of his submissions, learned advocate Mr. Patel has relied upon four decisions, in all, and except that, he has not relied upon any other decision. It is, therefore, required to be ascertained by this Court as to whether the principles laid down in the aforesaid four decisions are applicable to the facts of the present case or not. Before the labour court, the respondent has filed statement of claim and written statement thereto was filed by the petitioner corporation and documentary evidence was produced and thereafter, the workman was examined before the labour court. Except the oral evidence of the respondent workman, no other oral evidence has been led before the labour court. Before the labour court, nobody had remained present on behalf of the corporation and no oral submissions were made by the corporation and the case has been kept for orders because of the purshis filed by the respondent workman at Exh. 19. From the record, it appears that sufficient opportunity has been given by the labour court to the petitioner corporation but the corporation has not utilized such opportunities given by the labour court. Before the labour court, by filing the purshis, the respondent has submitted that he is not challenging the legality, validity and propriety of the departmental inquiry and is challenging the findings and has prayed that he should be reinstated in service by exercising the powers under section 11-A of the Industrial Disputes Act, 1947. Such request made by the respondent workman was considered by the labour court. Such purshis filed by the workman with a prayer for exercise of the power under section 11-A of the Act has not been objected by the Corporation by filing objections to such prayer or by remaining present and by making submissions that this is not a case where such powers and discretion should be exercised in favour of the respondent workman. It is an admitted fact that the corporation has not been remaining present before the labour court and no oral submissions were made before the labour court on behalf of the corporation. Present petition has been filed by the corporation challenging the award in question knowing fully well that that no oral evidence was led on behalf of the corporation before the labour court, no oral submissions were made on behalf of the corporation before the labour court and the prayer made by the workman for exercise of the discretionary powers under section 11-A of the Industrial Disputes Act, 1947 has also not been objected by the Corporation before the labour court. In view of these facts, it is the duty of the Corporation to explain before this Court as to how it could not remain present before the labour court and why no oral evidence was led before the labour court by it and why no oral submissions were made and objections were not filed against the purshis filed by the workman and what were the reasons which had prevented the corporation from doing all these things before the labour court. I have gone through the averments made by the corporation in the present petition. Nowhere the corporation has explained in this regard. So, in absence of such appearance, for want of oral evidence and oral submissions made on behalf of the corporation and also for want of objections against the prayer for exercise of the discretionary powers, the labour court has believed the case of the workman and has accepted the request of the workman concerned. In this petition, the petitioner is challenging the legality, validity and propriety of the award made by the labour court on the ground that the labour court has committed an error in granting reinstatement in favour of the workman and in exercising the discretion under sec. 11-A of the Act in view of the fact that the misconduct has been found to be proved against the workman and also in view of the past record wherein the respondent has committed 50 defaults. The petitioner, for the first time, is pointing out before this Court all these aspects and, therefore, this Court is required to consider the decisions relied upon by the petitioner before this Court in light of