Gujarat State Road Transport Corporation vs Rugnathbhai Mepabhai Kaleriya

M.R. Shah, J.—By way of this petition under Article 227 of the Constitution of India, the Petitioner - Gujarat State Road Transport Corporation, has prayed for appropriate writ, order and/or direction quashing and setting aside the impugned judgement and award dtd.16/3/2004 passed by the Labour Court, Rajkot in Reference (LCR) No. 407 of 2001, by which the Labour Court has quashed and set aside the order of dismissal passed by the disciplinary authority and further directed the Petitioner Corporation to pay all the retrial benefits to the Respondent workman and also granted continuity of service from the date of dismissal till he attained the age of superannuation i.e. 31/12/2002.

2.00. The facts, necessary for deciding the issue involved in the present petition, in nutshell, are as under:

2.01. That the Respondent workman was serving as a Driver and a departmental inquiry was initiated against him for not issuing tickets to 3 passengers & not collecting fare; and not issuing ticket to ticket to 1 passenger though fare was collected. In the departmental inquiry the charge and misconduct leveled against the Respondent workman came to be proved and considering 18 past misconducts /defaults committed by the Respondent workman in past, the disciplinary authority passed order of dismissal dismissing the Respondent from service.

2.02. Being aggrieved by and dissatisfied with the order of dismissal passed by the disciplinary authority, the Respondent workman instituted Civil Suit No. 1088 of 1990 and the learned Civil Judge granted injunction which was continued upto the year 2000 and the Civil Appeal preferred against the said order before the District Court was disposed of with the observation that the proceedings may be commenced at the stage of show cause notice and again show cause notice was issued and the same was replied by the Respondent workman and thereafter the disciplinary authority passed the order of dismissal.

2.03. Being aggrieved by and dissatisfied with the order of dismissal passed by the disciplinary authority, the Respondent workman raised an industrial dispute which was referred to the Labour Court, Rajkot and the same was registered as Reference (LCR) No. 407 of 2001 and the Labour Court, Rajkot by the impugned judgement and award interfered with the order of dismissal passed by the Petitioner Corporation, by holding that the charge and misconduct alleged against the Respondent workman has not been proved, as the passengers have not been examined in the departmental inquiry and that the charge and misconduct proved against the Respondent workman can be said to be negligence only and holding so, the Labour Court interfered with the order of dismissal passed by the Petitioner Corporation, in exercise of powers u/s 11(A) of the Industrial Disputes, Act, 1947 and directed the Petitioner Corporation to give all retirement benefits to the Respondent workman and denied the back wages from the date of dismissal till he attained the age of superannuation, by further directing to grant continuity of service from the date of dismissal till the workman attained the age of superannuation i.e. 31/12/2002.

2.04. Being aggrieved by and dissatisfied with the aforesaid judgement and award, the Petitioner Corporation has preferred the present Special Civil Application under Article 227 of the Constitution of India

3.00. Mr. Nirav Singhvi, learned advocate appearing for Mr. Ashish Dagli, learned advocate appearing on behalf of the Petitioner Corporation has vehemently submitted that the Labour Court has materially erred in holding that the charge and misconduct alleged against the Respondent workman is not proved as the passengers have not been examined. Mr. Singhvi, learned advocate appearing on behalf of the Petitioner Corporation has further submitted that as held by the Hon''ble Supreme Court in the case of State of Haryana and Another Vs. Rattan Singh, merely because the passengers have not been examined in the departmental inquiry, the departmental inquiry is not vitiated.

3.01. Mr. Singhvi, learned advocate appearing on behalf of the Petitioner Corporation has further submitted that the Labour Court has materially erred in treating the misconduct committed by the Respondent as negligence only. It is submitted that the Labour Court has materially erred in not considering the fact that the Respondent workman has committed 18 defaults in past.

3.02. Mr. Singhvi, learned advocate appearing on behalf of the Petitioner Corporation has relied upon the decision of this Court in the case of Gujarat State Road Transport Corpn. Vs. Somabhai Khataria Vasava,

3.3. By making above decisions and relying upon above decision, it is requested by the learned advocate appearing on behalf of the Petitioner Corporation to allow the present petition.

4.00. Present petition is opposed by Mr. Nilesh Pandya, learned advocate appearing on behalf of the Respondent workman. He has submitted that in the facts and circumstances of the case, when the Labour Court has exercised the discretion and held that the punishment of dismissal imposed by the management /disciplinary authority is disproportionate to the proved charge and misconduct, it is requested not to interfere with the impugned judgement and award in exercise of powers under Article 227 of the Constitution of India

4.01. Mr. Nilesh Pandya, learned advocate appearing on behalf of the Respondent Workman has further submitted that workman had already retired on attaining the age of superannuation and therefore, the Respondent would be entitled to the retirement benefits only. He has further submitted that the Respondent is denied the back-wages from the date of dismissal till the date of retirement i.e. the Respondent attained the age of superannuation on attaining the age of superannuation, and the same can be said to be sufficient punishment/penalty to the Respondent workman and therefore, it is requested not to interfere with the impugned judgement and award passed by the Labour Court.

5.00. Heard the learned advocates appearing on behalf of the respective parties at length.

5.01. At the outset, it is required to be noted that as such the charge and misconduct against the Respondent workman of not issuing tickets to 3 passengers and not issuing ticket to 1 passenger though fare was collected, have been proved in the department inquiry and the Labour Court has interfered with the punishment of dismissal from service solely on the ground that the passengers were not examined and therefore, the charge and misconduct leveled against the Respondent workman is not proved and at the most the same can be said to be negligence. In case of Rattan Singh (supra) the Hon''ble Supreme Court has held that passengers are not required to be examined and the Report of the Checking Squad is enough and sufficient. It is to be noted that, as such, the Respondent workman has not challenged the legality and validity of the departmental inquiry. Under the circumstances, the Labour Court has materially erred in holding that the charge and misconduct leveled against the Respondent workman has not been proved, as the passengers have not been examined and the charge and misconduct proved against the Respondent workman can be said to be negligence only. Under the aforesaid facts and circumstances of the case, the Labour Court has materially erred in treating the proved charge and misconduct as negligence only. Therefore, the impugned judgement and award passed by the Labour Court quashing and setting aside the order of dismissal passed by the disciplinary authority / management, deserves to be quashed and set aside.

5.02. Now, so far as the submission on behalf of the Respondent that by the impugned judgement and award the Respondent workman would be entitled to only retirement benefits, as he has retired on reaching the ate of superannuation on 31/12/2002 and therefore, to take a lenient view is concerned, in the facts and circumstances of the case, the same cannot be accepted. It is to be noted that as such the charge and misconduct proved against the Respondent workman is of not issuing tickets to 3 passengers and not issuing ticket to 1 passenger though fare was collected. The aforesaid proved charge and misconduct is required to be considered couple with the fact that the Respondent workman has committed 18 defaults in past. It is to be noted that earlier the Respondent workman was dismissed from service for the similar misconduct, however, the second appellate authority took a lenient view and passed order to reinstate the Respondent workman. Still the Respondent workman did not improve and again committed similar type of serious misconduct, which is proved. Under the circumstances No. lenient view can be taken against such a person who is habitual of committing such serious misconduct, otherwise, it would amount to give premium to the wrongdoer.

5.03. In the similar set of facts, the learned Single Judge of this Court in the case of Gujarat State Road Transport Corpn. Vs. Somabhai Khataria Vasava, has held that the order passed by the Labour Court, reducing the punishment from dismissal to stoppage of 3 increments with future effect and taking a lenient view was unwarranted and uncalled for. The learned Single Judge, relying upon the decision of the Hon''ble Supreme Court in the case of Regional Manager, U.P.S.R.T.C., Etawah and Others Vs. Hoti Lal and Another, as well as in the case of Janatha Bazar (South Kanara Central Co-operative Whole Sale Stores Limited) Etc. Vs. The Secretary, Sahakari Noukarara Sangha Etc., and other decisions of the Hon''ble Supreme Court, has held that such type of misconduct ought to have been handled with iron hands and in case of misappropriation, quantum of punishment is not required to be seen.

5.04. In the case of Hotilal and Anr. (supra) the Hon''ble Supreme Court, in para 10, has observed and held as under:

It needs to be emphasized that the court or tribunal while dealing with the quantum ofpunishment has to record reasons as to why it isfelt that the punishment was not commensuratewith the proved charges. As has been highlightedin several cases to which reference has been madeabove, the scope for interference is very limitedand restricted to exceptional cases in theindicated circumstances. Unfortunately, in thepresent case as the quoted extracts of the HighCourt''s order would go to show, No. reasonswhatsoever have been indicated as to why thepunishment was considered disproportionate.Reasons are live links between the mind ofdecision taken to the controversy in question andthe decision or conclusion arrived at. Failureto give reasons amounts to denial of justice.(See Alexander Machinery (Dudley) Ltd. v. Crabtree). A mere statement that it isdisproportionate would not suffice. A partyappearing before a court, as to what it is thatthe court is addressing its mind. It is not onlythe amount involved but the mental set up, thetype of duty performed and similar relevantcircumstances which go into the decision-makingprocess while considering whether the punishmentis proportionate or disproportionate. If thecharged employee holds a position of trust wherehonesty and integrity are inbuilt requirements offunctioning, it would not be proper to deal withthe matter leniently. Misconduct in such caseshas to be dealt with iron hands. Where theperson deals with public money or is engaged infinancial transactions or acts in a fiduciarycapacity, the highest degree of integrity andtrustworthiness is a must and unexceptionable.Judged in that background conclusions of theDivision Bench of the High Court do not appear tobe proper. We set aside the same and restoreorder of the learned Single Judge upholding theorder of dismissal.

(Emphasis supplied)

5.05. Considering the aforesaid decision and the facts of the case on hand and considering the 18 defaults/misconducts committed by the Respondent workman in past, the submission on behalf of the Respondent workman to take a lenient view, cannot be accepted. Under the aforesaid circumstances, the impugned judgement and award passed by the Labour Court cannot sustain and the same deserves to be quashed and set aside.

5.06. In view of the above and for the reasons stated above, present petition succeeds. The impugned judgement and award dtd.16/3/2004 passed by the Labour Court, Rajkot in Reference (LCR) No. 407 of 2001 is hereby quashed and set aside.Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be No. order as to costs.