Jumabhai Osmanbhai Hingora vs Divisional Controller

M.R. Shah, J.—By way of this petition under Article 227 of the Constitution of India, petitioner who was at the relevant time serving as a conductor, has prayed for an appropriate writ, direction or order quashing and setting aside the impugned judgment and award dated 12.04.2010 passed by the Labour Court, Rajkot in Reference (LCR) No. 224/2006, by which the Labour Court has dismissed the said reference.

The facts leading to the present Special Civil Application in nut-shell are as follows:

Petitioner was serving as a conductor and was on duty on 27.11.1986 under the Junagadh Depot. That there was a raid by the checking squad and the petitioner conductor deliberately did not open the door for quite some time and thereby delayed the opening of the door and in the meantime issued six tickets to the passengers from whom earlier the fare was recovered but the tickets were not issued. That all those six passengers from whom the fare was recovered but the tickets were not issued, were Bank Officers serving at Kalavad and statement of one of the passenger Bank employee was recorded at the relevant time and he gave the statement that in fact the petitioner/conductor recovered the fare from six passengers and did not issue tickets, however, on the raid by the checking squad, when the bus was directed to be stopped, he deliberately delayed in opening the door and in the meantime hurriedly issued tickets to those passengers. That thereafter, departmental inquiry came to be initiated against the petitioner. It appears that before the inquiry officer and in departmental inquiry, petitioner examined the aforesaid passenger who gave the statement against the petitioner. However, for whatever reason, he made a statement contrary to the statement made by him earlier and he turned around and it appears that he was won over by the petitioner, who was examined him as his witness before the inquiry officer. However, on appreciation of evidence and other surrounding circumstances, the Disciplinary Authority passed an order dismissing the petitioner from service. It appears that thereafter petitioner instead of raising industrial dispute filed a suit before the Civil Court, obtained injunction and pursuant to the order passed below Exh.5, he was continued in service and thereafter, the learned trial Court decreed the suit against which the respondent S.T. Corporation preferred Appeal before the District Court and the learned District Judge, Rajkot allowed the said Appeal by holding that Civil Court has no jurisdiction. However, in view of the fact that an Appeal was maintainable, delegated the petitioner to prefer Appeal which was subsequently preferred by the petitioner. During the pendency of the said Appeal, petitioner raised industrial dispute against the order of dismissal which was referred to the Labour Court, Rajkot, which was numbered as Reference (LCR) No. 224/2006 and the Labour Court by impugned judgment and award dated 12.04.2010 dismissed the said reference. Being aggrieved and dissatisfied with the impugned judgment and award passed by the Labour Court in dismissing the said reference, petitioner/conductor has preferred the present Special Civil Application under Article 227 of the Constitution of India.

Shri Gogia, learned advocate appearing on behalf of the petitioner has vehemently submitted that Labour Court has materially erred in dismissing the reference. It is submitted that as such there was no evidence against the petitioner with respect to the allegation levelled against the petitioner that he did not issue tickets to six passengers though the fare was collected. It is submitted that the finding given by the inquiry officer was on presumption and it is based on no evidence and therefore, Labour Court ought to have allowed the reference by quashing and setting aside the order of dismissal of passed by the Disciplinary Authority which is based on no evidence. It is further submitted that as such the passenger who gave the statement against the petitioner had deposed before the Disciplinary Authority/inquiry officer and he denied that the petitioner collected the fare and did not issue tickets and that he issued the tickets hurriedly at the time of raid by the checking squad. It is submitted that he has made specific statement before the inquiry officer that in fact they boarded in the bus from Khandera and the tickets were issued from the very beginning. It is submitted that the Labour Court has not properly appreciated the above. It is further submitted that even the Labour Court has not properly appreciated that as the passengers were not giving the statements as per the Officers of the checking squad, therefore, the bus was taken to the police station and the said passengers were compelled to sign the statements by force. It is submitted that the learned Labour Court has materially erred in not considering and/or relying upon the default card and the past defaults committed by the petitioner as the same was not part of the show-cause notice.

In the alternative, Shri Gogia, learned advocate appearing on behalf of the petitioner has submitted that as the petitioner continued to be in service upto 2006 pursuant to the interim injunction granted by the learned Civil Court, he has requested to impose some lesser punishment so that petitioner can get all consequential benefits of his service upto year 2006.

Heard the learned advocate appearing on behalf of the petitioner at length. At the outset, it is required to be noted that the allegation against the petitioner/conductor was that he collected the fare of Rs. 54/- from six passengers who were going from Kalavad and did not issue the tickets. However, at the time of raid by the checking squad, he deliberately did not open the door for quite some time and delayed the opening of the door and in the meantime hurriedly issued tickets in favour of those passengers and even the punching was not made at the proper place. It is to be noted that at the time of raid, the statement of one of the passengers who were not issued the ticket and who had paid the fare came to be recorded and as per the initial statements made by the concerned passengers, they stated that they paid the fare but the conductor did not issue the tickets to them and he issued the tickets hurriedly on the raid by the checking squad and did not open the door immediately and taking advantage of that delay in opening the door, he issued tickets to the passengers hurriedly. However, during the inquiry, one of the passenger who gave the earlier statement came to be examined as a witness on behalf of the petitioner who turned around and stated contrary to what was stated by him at the time of raid by checking squad. Inquiry Officer as well as the Labour Court has appreciated the evidence of the said witness by observing that subsequently, the said witness to help the petitioner and in connivance with the petitioner has changed his version. Inquiry Officer of the Labour Court also observed that earlier said witness has never made any grievance/complaint either before the higher police authority and/or before the higher authority that his statement was recorded by compulsion and/or by force. The Labour Court has specifically observed that those passengers were the routine passengers travelling on the said route and in connivance with the conductor, has changed his statement subsequently to help the petitioner. The Labour Court also considered that though the said passenger/witness was serving at Kalavad Branch, he has deliberately made a false statement that he boarded in the bus from village Khandera. Considering over all facts and circumstances and appreciation of evidence, the Labour Court dismissed the reference confirming the order of dismissal passed by the Disciplinary Authority. It is to be noted that it was alleged against the petitioner that he did not open the door immediately on the raid being carried by the checking squad and he delayed the opening of the door and in the meantime he issued the tickets hurriedly. The aforesaid is proved by the circumstantial evidence also to the effect that the punching on the tickets were found not at proper places. The aforesaid conduct on the part of the petitioner is required to be considered with his earlier past 26 misconducts and defaults. It is also found that at the time of raid by the checking squad, the door was opened after sometime. All these aforesaid facts are required to be considered while considering the allegations and the misconducts proved against the petitioner. The contention on behalf of the petitioner that his earlier past defaults cannot be considered as the same was not part of the show-cause notice, it is to be noted that same was not objected by the petitioner. In any case, the decision of the Labour Court is not solely based upon his past conduct. The aforesaid is considered alongwith other supporting documents and on appreciation of evidence.

The alternative contention on behalf of the petitioner to impose some lesser punishment also cannot be considered in light of the serious misconduct committed by the petitioner and considering the fact that despite 26 past defaults and the petitioner was imposed different punishment 26 times, the petitioner has not improved himself. Therefore, there is no question of considering the request of the petitioner to impose lesser punishment after 26 defaults committed by him.

In view of the above and for the reasons stated above, it cannot be said that the Labour Court has committed any error and/or illegality in dismissing the reference, which calls for interference of this Court while exercising powers under Article 227 of the Constitution of India. Under the circumstances, there is no substance in the present petition which deserves to be dismissed and is, accordingly, dismissed.