LPA/1075/2006 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 1075 of 2006 In SPECIAL CIVIL APPLICATION No. 1120 of 2006 With LETTERS PATENT APPEAL No. 1161 of 2006 In SPECIAL CIVIL APPLICATION No. 8115 of 2005 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 ? ========================================================= GSRTC - Appellant(s) Versus RAMJUBHAI DHIRUBHAI ZALA - Respondent(s) ========================================================= Appearance : MR HARDIK C RAWAL for the Appellant MR BHARAT JANI for the Respondent LETTERS PATENT APPEAL No. 1161 of 2006 MR BK OZA for the Respondent ========================================================= CORAM : HONOURABLE MS. JUSTICE R.M.DOSHIT and HONOURABLE MR.JUSTICE K.M.THAKER LPA/1075/2006 2/13 JUDGMENT Date : 29/02/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MS. JUSTICE R.M.DOSHIT) The above Appeals preferred under clause 15 of the Letters Patent against the respective order of the learned Single Judge raise a common issue. With the consent of the learned advocates, the Appeals are heard and decided by this common judgment. In both the writ petitions the appellant – Gujarat State Road Transport Corporation (hereinafter referred to as, “the Corporation”) was the writ petitioner. Subject matter of challenge was the award made by the Labour Court in favour of the concerned workman, the respondent in each petition. Letters Patent Appeal No.1075/2006 arises from the order dated 24th April, 2006 made by the learned Single Judge in Special Civil Application No.1120/2006. The workman Ramjubha Dhirubha Zala, the LPA/1075/2006 3/13 JUDGMENT respondent in Letters Patent Appeal No.1075/2006 was employed by the Corporation as a Conductor. On 17th July, 1984 when the said workman Ramjubha was on duty enroute Amreli-Dwarka, on spot checking it was found that the said workman had collected fare from a group of ten passengers but had not issued tickets. He had also not issued tickets to a group of thirteen passengers. For the said act of misconduct a disciplinary proceeding was held against the workman. By order dated 12th February, 1985 made by the disciplinary authority, the said workman was held guilty of the charges levelled against him. For the said acts of misconduct a punishment of withholding of annual increment for three years with future effect was imposed upon him. The said order was taken in suo-motu review by the appellate/reviewing authority. By notice dated 25th June, 1985 issued by the appellate/reviewing authority the delinquent workman was informed that the punishment imposed upon him was not commensurate to the gravity of misconduct proved against him. The workman was called upon to show-cause why, for the reasons stated therein, he should not be dismissed from service. By order dated LPA/1075/2006 4/13 JUDGMENT 27th January, 1989 made by the appellate/reviewing authority, the punishment imposed upon the workman was enhanced to withholding of annual increment for five years with future effect. Feeling aggrieved, the said workman raised industrial dispute. It was referred to the Industrial Tribunal, Rajkot and registered as Reference (IT) No.60/1999. In the said reference the Industrial Tribunal by its judgment and award dated 26th September, 2005, confirmed the finding of guilt recorded against the workman. The Tribunal, however, following the judgment of this Court in the matter of Gujarat State Road Transport Corporation v/s. D.L.Patel [2003(1) GLR 348] held that the appellate/reviewing authority had no power to take up the matter in suo-motu revision to enhance the punishment imposed upon the delinquent workman. In view of the said finding the punishment of withholding of annual increment for five years imposed by the appellate/reviewing authority was set- aside. The order of punishment of withholding of annual increment for three years with future effect LPA/1075/2006 5/13 JUDGMENT imposed upon the disciplinary authority was confirmed. The said award has been confirmed by the learned Single Judge in above Special Civil Application No.1120/2006. Letters Patent Appeal No.1161/2006 arises from the order dated 17th April, 2006 made by the learned Single Judge in Special Civil Application No.8115/2006. The workman Bachubhai B.Bambhania, the respondent in Letters Patent Appeal No.1161/2006 was employed by the Corporation as a Conductor. On 9th July, 1989 when the said workman Bachubhai was on duty enroute Limdi-Mahuva, on spot checking it was found that the said workman had collected fare from one passenger but had not issued ticket. He did not issue tickets to a group of sixteen passengers. For the said acts of misconduct a disciplinary proceeding was held against the said Bachubhai. By order dated 24th December, 1991 made by the disciplinary authority, the said Bachubhai was held guilty of the charges levelled against him. For the said acts of LPA/1075/2006 6/13 JUDGMENT misconduct he was visited with punishment of withholding of annual increment for five years with future effect. Feeling aggrieved, the said Bachubhai preferred appeal before the appellate authority. The appellate authority, in exercise of power vested under paragraph 8 of the S.T. Discipline and Punishment Procedure, by its order dated 20th July, 1994, enhanced the punishment of withholding of annual increment for five years with future effect to that of dismissal from service. Feeling aggrieved, the said Bachubhai raised industial dispute which came to be referred to the Labour Court, Bhavnagar and registered as Reference (LCB) No.175/1995. The Labour Court, by the judgment and award dated 19th July, 2004, confirmed the finding of guilt recorded against the workman. The Labour Court, however, following the judgment of this Court in the matter of Gujarat State Road Transport Corporation v/s. D.L.Patel [2003(1) GLR 348] held that the appellate authority had no power to take up the matter in suo-motu revision to enhance the punishment imposed upon the delinquent workman. In LPA/1075/2006 7/13 JUDGMENT view of the said finding the punishment of dismissal from service imposed by the appellate authority was set-aside. The order of punishment of withholding of annual increment for five years with future effect imposed by the disciplinary authority was confirmed. The said award has been confirmed by the learned Single Judge in above Special Civil Application No.8115/2005. The matter at issue in both these Appeals is in connection with the power of the appellate authority/ reviewing authority. In the matter of D.L.Patel (supra), the learned Single Judge (Coram: H.K.Rathod, J.) had considered clauses 9, 14 and 20 of the S.T. Discipline and Appeal Procedure which govern the conditions of service of the employees of the Corporation. The learned Judge held that, “...The review can be considered on the basis of evidence which was led before the competent authority. The reviewing authority cannot consider the additional evidence which was taken up by the reviewing authority.” Another Bench (Coram: Ravi R.Tripathi, J.), in the matter of Gujarat State Road Transport LPA/1075/2006 8/13 JUDGMENT Corporation v/s. Ishwarbhai Madhabhai Patel (Special Civil Application No.11349/2002 decided on 5th February, 2003) had a different view of the matter. In view of these two contrary views, by order dated 3rd March, 2004 made in Special Civil Application No.888/2004, the learned Single Judge (Justice Jayant Patel) referred the issue “...whether the reviewing authority/appellate authority has power to enhance the punishment keeping in view the provisions of clauses 8 and 9 of the Procedure” to a Larger Bench. The Larger Bench (Coram: A.L.Dave and S.D.Dave, JJ.) has, by its judgment dated 24th October, 2007 made in Civil Reference No.1/2007, put an end to the controversy. The Reference is answered thus, “...Clause-9 empowers the Appellate Authority to call for the papers of any case for review. Obviously, these powers would include the powers to enhance the punishment in case it is found to be inadequate.” Thus, it is now decided that under the relevant discipline and appeal procedure, the appellate authority/reviewing authority has the power to call for the papers of any disciplinary proceeding LPA/1075/2006 9/13 JUDGMENT and examine the same. This power is coupled with the power to enhance the punishment. In view of the law now settled by the Division Bench, the decision of the learned Single Judge in the matter of D.L.Patel (supra) in so far as it has expressed a contrary view, stands overruled. The decision of the learned Single Judge in the present two Appeals solely based on the judgment in the matter of D.L.Patel (supra) is erroneous and contrary to the law settled by the Division Bench. The orders of the learned Single Judge impugned in both these Appeals, therefore, deserve to be quashed and set- aside. That would bring us to the correctness of the decision of the Industrial Tribunal/Labour Court. In both these matters, the Tribunal and the Court below have upheld the legality of the disciplinary proceedings held against the delinquent workman. The finding of guilt against the delinquent workman and the punishment imposed by the disciplinary authority have also been confirmed. The finding of guilt and the confirmation of the LPA/1075/2006 10/13 JUDGMENT punishment by the disciplinary authority, by the Industrial Tribunal/Labour Court have not been challenged further by the delinquent workman. We are, therefore, required to proceed on the basis of the guilt established against the delinquent workman. In both the above matters, the delinquent workman has been found to be guilty of financial irregularities amounting to lack of integrity and lack of devotion to duty. In both the cases, though the acts of misconduct were more or less similar, both the delinquent workmen had a blotted service record i.e. both the delinquent workmen had been, in past, visited with lesser punishment for similar acts of misconduct, there is a vast difference in the punishment imposed upon each. In the first case, the disciplinary authority imposed punishment of withholding of annual increment for three years with cumulative effect, which was enhanced to withholding of annual increment for five years with cumulative effect. In the second case, the disciplinary authority imposed punishment of withholding of annual increment for five years with future effect, which LPA/1075/2006 11/13 JUDGMENT was enhanced to that of dismissal from service. We are alive to the fact that imposition of punishment is a matter to be decided by the disciplinary authority. Unless such punishment is unconscionably harsh, this Court should not interfere with the same. We are also of the opinion that in both these cases the gravity of the misconduct committed by the concerned workman, considering his past record calls for an extreme punishment of removal or dismissal from service. However, we are unable to comprehend, nor any explanation has come- forth from the Corporation why there should be such a vast difference in punishment imposed for similar misconduct. In absence of any explanation given by the Corporation, we are of the opinion that in both these matters the acts of delinquency being similar, a similar punishment should be imposed upon the delinquent workmen. In view of the above discussion, both these Appeals are allowed. The order dated 24th April, 2006 made by the learned Single Judge in Special Civil Application No.1120/2006 is quashed and set-aside. LPA/1075/2006 12/13 JUDGMENT The Special Civil Application No.1120/2006 is allowed. The judgment and award dated 26th September, 2005 passed by the Industrial Tribunal, Rajkot in Reference (IT) No.60/1999 is quashed and set-aside. The Reference (IT) No.60/1999 is rejected. The punishment of withholding of annual increment for five years with cumulative effect made on 27th January, 1989 by the reviewing authority against the delinquent workman is confirmed. The impugned order dated 17th April, 2006 made by the learned Single Judge in Special Civil Application No.8115/2005 is quashed and set-aside. The Special Civil Application No.8115/2005 is allowed. The judgment and award dated 19th July, 2004 passed by the Labour Court, Bhavnagar in so far as it has held that the appellate authority had no power to exercise the power of reviewing authority to enhance the punishment imposed upon the delinquent workman is set-aside. However, with a view to maintaining parity the order dated 20th July, 1994 made by the appellate authority/reviewing authority is set-aside. The LPA/1075/2006 13/13 JUDGMENT punishment of withholding of annual increment for five years with cumulative effect imposed by the disciplinary authority is confirmed. The period from the date the workman Bachubhai B.Bambhania was dismissed from service till the date he was/is reinstated in service be regularised as the period spent on leave without pay. The parties will bear their own cost. Registry will maintain copy of this judgment in each Appeal. (Ms. R.M.Doshit, J.) (K.M.Thaker, J.) /moin