SCA/8718/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8718 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ============================================= = 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 ? ============================================= = GUJARAT STATE ROAD TRANSPORT CORPORATION - Petitioner Versus RAMESHBHAI KESHAVBHAI PATEL - Respondent ============================================= = Appearance : MR HARDIK C RAWAL for Petitioner MR KISHOR M PAUL for Respondent ============================================= = CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 23/10/2008 ORAL JUDGMENT Rule. Shri Kishor M Paul, learned Advocate for the respondent-workman waives service of notice of Rule and with their consent the same is fixed forthwith. SCA/8718/2008 2/5 JUDGMENT 2. The petitioner-GSRTC, has assailed the award passed by the Presiding Officer, Labour Court, Surat dated 15/10/2007 passed in Reference (LCS) No.367 of 2005 whereby the Labour Court partly allowing the said reference and ordering the reinstatement of the workman without any back wages. 3. The facts of the case in brief deserves to be noted as under: 4. It was the case of the workman-respondent before the Labour Court that the workman-respondent was serving as conductor since last 22 years with the petitioner-Corporation. While he was on duty on 14/03/2004, the checking authority checked the bus which carried 14 passengers in total and out of that one group of three passengers were not given ticket, though money was collected. In-short, the charge of misappropriation was levelled against the respondent- workman. The inquiry proceeding culminated into the final order of dismissal which came to be confirmed by the appellate authorities and hence the dispute was raised which came to be referred to the competent Labour Court being Reference (LCS) No.367 of 2005. The Labour Court after hearing both the parties at length came to the conclusion that the possibility of passengers misplacing the ticket could not be ruled out or for the unknown reasons they might not have produced the tickets when checking party called upon them to produce tickets and on that basis held that the finding of the Inquiry Officer were perverse and held that on such finding the order of punishment of dismissal was harsh and ordered reinstatement without granting any back wages. SCA/8718/2008 3/5 JUDGMENT 5. Being aggrieved with the said award, the present petitioner has filed the petition. Ms.Mehta, learned Advocate for Shri Raval for the Corporation ultimately contended that the award passed in the reference and the impugned in this proceeding is absolutely undefendable and therefore the same deserves to be quashed and set aside. She contended that a serious misconduct of misappropriation had been examined and when the workman gave up his challenge to the proprietory and validity of inquiry proceeding, it was not open to the learned Labour Court to go into the aspects of so-called infirmity in the inquiry proceeding. Reading of the award go to show that the Labour Court has been persuaded to proceed on conjectures and surmises only, as the award of Labour Court is based on no evidence warranting the conclusion and therefore the same deserves to be quashed and set aside. 6. Shri Paul, learned Advocate for the respondent- workman submitted that the Labour Court has concluded that the workman cannot be said to be guilty of misappropriation as non-production of tickets by the passengers cannot be said to be sole responsibility and / or the misconduct on the part of the workman especially when the cash is not checked by the checking authority. Against this circumstances, one can say that the Labour Court's conclusion cannot be unjustified especially so when the Labour Court has not awarded back wages. Shir Paul submitted that assuming for the sake of argument that the award does suffer from infirmity then also the same does not call for any interference as the workman is sizably punished, as no back wages have been awarded and in view thereof under Article 227 of the Constitution of India, this SCA/8718/2008 4/5 JUDGMENT Court may not interfere with the same and the same may be rejected. Mr.Paul submits that even the workman is ready to accept the punishment of stoppage of three increments with future effect to meet with the ends of justice. 7. This Court has heard learned Counsel for the parties and has perused the award impugned in the petition. The few undisputed facts deserves to be taken into consideration while examining the rival contentions of the learned Counsel for the respective parties. The workman is an experienced conductor having 22 years of service, therefore, it was not open to him to plead ignorance with regard to rules for issuance of tickets within certain kilometers of journey. The distinction with regard to non-issuance of tickets, unpunched tickets and collection of money and statement of the passengers which also bears countersign of the workman that the same is made in his presence, were conclusive enough to point towards his guilty in the entire matter. As against that, the question arose as to how far the Court was justified in proceeding on mere surmises and conjectures which was otherwise unreasonable to say that the passengers might have misplaced the tickets or loss the tickets which cannot be said to be reasonable from any stretch of imagination. But, it can be said to be only perverse. The Labour Court has brushed aside the aspect with regard to past misconduct of workman merely by observing that the workman was punished with those misconducts. When the workman was facing serious charge of misappropriation that too by mentioning of amount and in light of conclusive evidence towards his guilt, there was no evidence whatsoever merely finding and anything from being any independent reason, the award of the Labour Court suffers from patent SCA/8718/2008 5/5 JUDGMENT perversity which cannot be sustained scrutiny under Article 227 of the Constitution of India. This brings the Court to the second submission of substitution of penalty. Had this been a case of mere negligence, there would have been a scope for taking into consideration the plea for substituting the penalty, as the errors without any intention, may be looked from different angle taking lenient view to in the instant case. But, looking to the statement of the passengers which has been countersigned by the workman himself, this Court is of the view that there was no scope to exercise power under Section 11 (A) of the Industrial Disputes Act. The award must therefore being untenable in the eye of law and deserves to be quashed and set aside and is accordingly quashed and set aside. The petition is allowed. Rule is made absolute to the aforesaid extent. However, there shall be no order as to costs. (S.R.BRAHMBHATT, J.) sompura