SCA/12518/2001 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12518 of 2001 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 ? ========================================================= GSRTC - Petitioner Versus JN PATEL - Respondent ========================================================= Appearance : MR DIPEN A DESAI for Petitioner: 1, MR ND SONEGARA WITH MR PRABHAKAR UPADYAY for Respondent: 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 16/10/2008 ORAL JUDGMENT 1. Heard learned counsel for the parties. SCA/12518/2001 2/7 JUDGMENT 2. The petitioner, Gujarat State Road Transport Corporation has preferred this petition under Article 226 of the Constitution of India challenging the Award dated 17.3.2001 passed by the Presiding Officer, Labour Court, Godhra in Reference (LCG) 33 of 1998, whereunder, the dismissal order was quashed and set aside and reinstatement of the workman respondent was ordered without any back wages and substituted the penalty from dismissal to that of stoppage of one increment with future effect. 3. This Court (Coram: R.R. Tripathi, J.) while admitting the matter, granted interim relief vide order dated 8.1.2002 in terms of Para 6(B) staying the award impugned. However, workman was paid benefits of last drawn wages under Section 17-B of the I.D. Act. 4. The workman received charge-sheet for misappropriation and the same contained allegations that while discharging his duty as Conductor, he was found to be indulging in misappropriation. The workman had joined only on 29.1.1994 and he was found to be indulging in misappropriation on 29.6.1994. The inquiry was conducted and as the charges were found to be proved, order of punishment of dismissal came to be passed on 17.8.1995. The workman preferred Appeal, which came to be rejected on 17.4.1996 and Second Appeal also came to be rejected on SCA/12518/2001 3/7 JUDGMENT 26.8.1997. The workman raised industrial dispute, which came to be referred to the Competent Court for adjudication as Reference (LDG) 33 of 1998. The Labour Court partly allowed the Reference, quashing and setting aside the order of dismissal and substituted the punishment with stoppage of one increment with future effect vide its award and order dated 17th March, 2001. Being aggrieved and dissatisfied with the same, present petition is filed on the grounds mentioned there under. 5. Shri Desai, learned counsel appearing for the petitioner has submitted that the workman filed purshish before the Labour Court giving up his challenge to the propriety and validity of the inquiry and hence it was not open to the Labour Court to record elaborate findings on the aspect of so called infirmities in inquiry proceedings. The Labour Court, therefore, has committed serious error, which has dealt severe blow to the cause of justice and therefore, the petition deserves to be allowed. He further submitted that the workman was found to be involved in misappropriation within six months from his joining the service and therefore, naturally there could not have been any previous incidents of default of the petitioner. It deserves to be noted that the glaring facts coming out on record unequivocally point towards his dubious activities, which has remained unexplained and SCA/12518/2001 4/7 JUDGMENT the conclusion of guilt and on that basis awarding of punishment of dismissal which was justified and that ought not to have been interfered by the Court. He submitted that the award impugned deserves to be quashed and set aside. 6. Shri N.D. Sonegara for Mr. Upadhyay, learned counsel appearing for the respondent has contended that the Labour Court has unequivocally held that it was at the best error of judgment on the part of the workman as he was newly recruited and did not have experience of discharging duties on express route. The workman was performing his duty on express route for the first time and as he did not have much experience and knowledge about the handicapped persons’ coupon etc. The authorities’ heavy reliance upon this fact for recording guilt and inflicting punishment was illegal. He submitted that the Labour Court's finding is just and proper and the same cannot be interfered with under Article 226 of the Constitution of India and submitted that this petition deserves to be rejected. He further submitted that the Labour Court has held that the so called misconduct was at the best, mere negligence on the part of workman and therefore, the punishment of stoppage of one increment was found to be absolute just and proper and award does not require any interference under Article 227 of SCA/12518/2001 5/7 JUDGMENT the Constitution. 7. This Court has heard learned counsel for the parties at length and perused the impugned award. The fact remains to be noted that the workman respondent has filed Exh. 8 purshis, where under, he has admitted the departmental proceedings and its propriety and given up his challenge thereto. Once the challenge to the propriety and validity of inquiry is given up, the scope for examining the punishment order becomes restrictive. Bearing this fact in mind, the award impugned deserves to be examined. At number of places, the Labour Court has proceeded on sheer conjuncture and surmises and held contrary to the evidence on record. The workman was suppose to have correctly disclosed his private cash before he resumed his duty and boarded the bus. The workman disclosed that he was carrying Rs.100/- with him, whereas, he was found to be carrying only Rs.35/- with him. Couple with this fact, the issuance of ticket without punching them and showing other ticket number in handicapped persons’ coupon, conclusively go to show that there was no scope for any contrary presumption but to the guilt of the workman concerned. These facts specially assumes greater importance, in view of the fact that workman had filed purshis Exh.8 giving up his challenge to the propriety and validity of the inquiry proceedings. The findings with SCA/12518/2001 6/7 JUDGMENT regard to possibility of mistake, lack of intention, lack of experience on express route not the finding borne out by evidence on record nor could they be taken into consideration for converting findings of guilt into that of mere negligence warranting lesser punishment. Therefore, on this count also, the award impugned deserves to be untenable and it deserves to be quashed and set aside. 8. The Tribunal while exercising powers under Section 11(A) of the I.D. Act has changed the findings of guilt of misappropriation and substituted the punishment. The basis for substituting the punishment is mere conjuncture and surmises, which cannot be said to be tenable and therefore, their appears to be clear over looking of the purview and discretion conferred upon the Court under Section 11 (A) of the I.D. Act and therefore, the Award impugned is untenable and same deserves to be quashed and set aside and accordingly, same is hereby quashed and set aside. 9. The Labour Court has presumed lack of intention to misappropriate on the part of the respondent only on the ground that he did not have enough experience on the express route but has not dealt with the aspect of handicapped coupon and his false disclosure with regard to his private cash before he boarded the bus. The Labour SCA/12518/2001 7/7 JUDGMENT Court has gone beyond its jurisdiction in appreciating so called infirmities in inquiry proceedings or in initiation of the same when the workman himself had by way of express purshish given up his challenge to propriety and legality of the inquiry. The petition, therefore, is allowed. Rule is made absolute. However, there shall be no order as to costs. (S.R.BRAHMBHATT, J.) pallav