Gujarat High Court
Gujarat State Road Transport ... vs Keshavlal Anandji on 6 February, 2013
Author: C.L.Soni
Bench: C.L. Soni
GUJARAT STATE ROAD TRANSPORT CORPORATION....Appellant(s)V/SKESHAVLAL ANANDJI VAGHELA....Respondent(s) C/SA/25/1997 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL NO. 25 of 1997 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE C.L. SONI ================================================================ 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....Appellant(s) Versus KESHAVLAL ANANDJI VAGHELA....Respondent(s) ================================================================ Appearance: MR HS MUNSHAW, ADVOCATE for the Appellant(s) No. 1 MR ANAND B GOGIA, ADVOCATE for the Respondent(s) No. 1 MS KAJAL L KALWANI, ADVOCATE for the Respondent(s) No. 1 MS MUSKAN A GOGIA, ADVOCATE for the Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE C.L. SONI Date : 06/02/2013 ORAL JUDGMENT
1. By this appeal under section 100 of the Code of Civil Procedure, 1908, the appellant-original defendant has challenged the judgment and decree of First Appellate Court which confirmed the judgment and decree of the trial court directing the reinstatement of the respondent original plaintiff with consequential benefits.
2. It is the case of the plaintiff in his suit that he was serving as Conductor with the appellant- Gujarat State Road Transport Corporation at Veraval Depot and while on duty, his bus was checked on 25.4.1983 and on the basis of such checking and after serving the charge sheet, departmental inquiry was initiated against him. By order dated 7.7.1984, he was dismissed from service. It is further case of the plaintiff that there was no evidence against him and the order of dismissal was without jurisdiciton and void. He, thus, prayed in his suit to declare the order of dismissal as without jurisdiction and void and to further declare him to be in continuous service notwithstanding the order of dismissal passed against him and to confer all consequential benefits to him.
3. The suit was resisted by the appellant-original defendant stating that the plaintiff was given sufficient opportunities in the departmental inquiry, still, he did not remain present in the inquiry. It is further stated that the Civil Court has no jurisdiction to entertain and decide the suit of the plaintiff. It is further stated that on 25.4.83, the bus of the plaintiff was checked on Porbandar-Dhoraji Route at Ranavav between 13.15 hours to 14.00 hours and it was found that the plaintiff did not issue tickets 11 passengers who boarded the bus for Vadvala, to 13 passengers who boarded the bus for Ranavav, to 3 passengers who boarded the bus for Kandorana, to 9 passengers who boarded the bus for Kutiyana, one and half passengers who boarded the bus for Upleta, to 5 passengers who boarded the bus for Dhoraji, after collecting charges from them. It is further stated that punched tickets bearing No. 673092 to 96 each valued at Rs.2.00 were found from the tray and while giving statement at the Ranavav Control Point, the plaintiff had snatched away, torn off and thrown away tickets bearing No. 673097 to 99, that on checking of the ST Cash of the plaintiff, an amount of Rs.183.95 ps. was found short which was not deposited by him till 26.4.1983, that on searching the pockets of the plaintiff, punched tickets bearing No.530205-10-11-24-25-26-28-29-44-45-46-49-50 and 51 each of Rs.5.00 and tickets bearing No. 978700-4-5-6-9-10-11- 949064-70-71-84-85-86-87 and 88 each of Rs.1.00 were found were sold by the plaintiff in his Porbandar-Madhavpur Extra Trip dated 24.4.83. The plaintiff refused to sign below the statement of the passengers and, therefore, the driver was asked to sign and only then, the plaintiff signed the statements of the passengers. It is further stated in the written statement that though plaintiff was served with the notice of inquiry, the plaintiff did not remain present on any of the dates of inquiry proceedings. It is further stated that in the inquiry, the reporter was examined and thereafter, on the basis of the evidence available in the inquiry, the inquiry officer found rgw charges proved against the plaintiff and on the basis of inquiry, ultimately, the plaintiff was dismissed from service. That there is no illegality committed in the inquiry and, therefore, order of dismissal passed against the plaintiff was legal and valid. The suit of the plaintiff is, thus, required to be dismissed.
4. Learned trial Judge however came to the conclusion that the competent authority did not examine the passengers during the inquiry, that the copies of the statements of the passengers were not provided to the plaintiff, that the plaintiff was not given sufficient opportunity of hearing, that the checking officer had not checked the cash with the plaintiff at the time of checking of the bus, that to hold the plaintiff guilty of the charge of misappropriation, it was necessary to check the cash with the plaintiff. On such conclusion, learned trial Judge allowed the suit by judgment and decree dated 27.1.1994 and declared the order of dismissal as null and void and further declared the plaintiff tobe in continuous service with all conseqneutial benefits.
5. Defendant corporation unsuccessfully carried the matter before the first appellate Court by filing Regular Civil Appeal No. 14 of 1994. The learned appellate Judge concurred with the ultimate conclusion reached by the learned trial Judge and dismissed the appeal by judgment and decree dated 30.9.1996. It is this judgment and decree passed by the first appellate Court which is under challenge in this appeal.
6. This appeal was admitted by order dated 17.4.1997 on the following substantial questions of law:
Whether on the facts and in the circumstances of the case, the Courts below have substantially erred in law in holding that Gujarat State Road Transport Employees (Service) Regulations are bad in law as previous sanction of the State Government as contemplated by Section 45 of the Road Transport Corporations Act, 1950 was not obtained?
Whether on the facts and in the circumstances of the case, the Courts below have substantially erred in law in holding that as passengers were not examined, sufficient opportunity of being heard was not given to the respondent, and the charge levelled against the respondent was not proved in departmental inquiry?
Whether both the Courts have substantially erred in law in decreeing the suit when the dispute involves recognition observance or enforcement of the rights/obligations created by the Industrial Disputes Act, and, therefore, the only remedy available to the respondent was to approach the forum created under the said Act?
Whether on the facts and in the circumstances of the case, substantial error of law has been committed by both the Courts in directing reinstatement of the respondent in service with full backwages which amounts to enforcing the contract of service specifically?
Whether both the Courts have substantially erred in law in holding that Departmental proceedings initiated against the respondent are bad in law?
7. I have heard learned advocates for the parties. Learned advocate Mr. H.S. Munshaw for the appellant submitted that the charge of not issuing tickets to 43 ¿ passengers after collecting charges from them was proved in the departmental inquiry against the plaintiff. He submitted that the plaintiff was duly served with the notice of departmental inquiry and he chose not to participate in the departmental inquiry, therefore, he cannot make any grievance about not giving any opportunity to defend himself in the inquiry. Mr. Munshaw submitted that the order of punishment at Exh. 20 dated 7.7.84 dismissing the plaintiff from service clearly records that the charge against the plaintiff of not issuing tickets to 43 ¿ passengers after collecting charges from them stood proved by the evidence of the checking-reporting officer, and by the evidence of the said witness in inquiry, even the statement signed by the plaintiff accepting his guilt of collecting charges and not issuing tickets and also seeking pardon for such act on his part came to be proved. Mr. Munshaw submitted that not only this evidence of checking officer before the inquiry officer remained unchallenged but the plaintiff has not adduced any oral evidence in the suit, and, threfore, no illegality could be found in the inquiry proceedings and with the ultimate order of punishment based on the inquiry proceedings. Mr. Munshaw submitted that when the inquiry proceedings were legally conducted and when the charge against the plaintiff was found to have been proved, it is not open to the civil court to sit in appeal over the decision taken by the competent authority and to set at naught the order of punishment passed by the competent authority. Mr. Munshaw further submitted that the prayers made in the suit is to declare the order of dismissal as void and without jurisdiction and to declare the plaintiff to be in continuous service with all consequential benefits. He submitted that the plaintiff has not proved by his evidence as to how the order of punishment was void and without jurisdiction. As against this, final order passed by the competent authority clearly records giving of sufficient opportunities to the plaintiff and the charge having been proved against the plaintiff on the basis of the evidence in inquiry. Mr. Munshaw submitted that in reply submitted by the plaintiff to the charge sheet, the plaintiff asserted that the bus was checked at Kamla Nehru in Porbandar which was stated to be within six kms. from the starting point of the bus whereas it is proved by the evidence of the witness in the inquiry as also before the civil court that the bus was checked at Ranavav and it was found that 43 ¿ passengers were not issued tickets and the plaintiff also snatched away, torn and threw away the punched tickets found from his pockets. Mr. Munshaw thus urged to allow this appeal by contending that the charge against the plaintiff of having committed serious misconduct was proved against him in the departmental inquiry and it was beyond the competence of the civil court to hold that the order of punishment was void in absence of the plaintiff s proving breach of principles of natural justice during the inquiry.
8. As against the above arguments, learned advocate Shri Gogia for the respondent-plaintiff submitted that the plaintiff was not given sufficient opportunity to appear before the inquiry officer and the inquiry against the plaintiff was conducted ex-parte. He submitted that the plaintiff was though served with the first notice to appear before the inquiry officer, then for subsequent dates, the plaintiff was not informed to remain present before the inquiry officer. He submitted that the plaintiff was serving conductor and it was not possible to believe that the plaintiff would not appear before the inquiry officer if was duly served with the notice to appear before the inquiry officer. He submitted that in fact, it was a case of no evidence against the plaintiff in the inquiry and, therefore, charge against the plaintiff fare and not issuing tickets could not be said to have been proved against the plaintiff. Mr. Gogia submitted that the competent authority has dismissed the plaintiff from service on the ground that the plaintiff collected charges and not issued tickets to 43 ¿ passengers whereas the witness examined in the civil court by the ST Corporation admitted in his evidence that he did not check the cash balance with the plaintiff and, therefore, in absence of such checking of the cash balance with the plaintiff, it was not possible to arrive at a finding that the plaintiff had collected money and not issued tickets. He submitted that once the charge of misappropriation was not proved against the plaintiff, punishment imposed upon the plaintiff could be said to be without any evidence. Therefore, Civil Court had jurisdiction to entertain and decide the suit of the plaintiff. He submitted that the courts below have on appreciation of evidence found as a matter of fact that the defendant corporation has failed to prove the charge of misappropriation against the plaintiff. He submitted that the courts below have also found as a matter of fact on appreciation of the evidence that it was a case of no evidence against the plaintiff in inquiry, therefore, charge of collecting fare and non issuance of tickets to passengers and charge of finding punched tickets from the pocket of the plaintiff could not be said to have been proved against the plaintiff. He submitted that if it was a case of no evidence against the plaintiff in the departmental inquiry, even if the plaintiff had not participated in the inquiry, that the order of punishment in absence of any evidence against the plaintiff was null and void and therefore, the courts below were justified in allowing the suit of the plaintiff.
9. Mr. Gogia submitted that the bus of the plaintiff was checked within six kms from the starting point as stated by the plaintiff in his reply to the charge sheet. He submitted that as per the rules, if the bus is checked within six kms from the starting point and if some passengers are found without tickets, such could not be said tobe misconduct according to rules. Mr.Gogia submitted that it was not physically possible for the plaintiff to issue tickets to the passengers when the bus was checked, and therefore, even if it is accepted that the plaintiff had not issued tickets to 43 ¿ passengers, such could be said tobe negligence on the part of the plaintiff and on the basis of such negligence, the plaintiff could have been imposed some minor punishment instead of dismissal from service. Mr. Gogia further submitted that the plaintiff was neither provided with the statement of passengers nor provided with the copy of his own statement and, therefore, the plaintiff was not given fair opportunity to defend himself in the inquiry. He further submitted that the plaintiff was also required to be called by the inquiry officer to give his explanation after the evidence on the side of the department was over. He submitted that the entire proceedings in the departmental inquiry was contrary to the settled principles of natural justice. Mr. Gogia submitted that the competent authority for passing the order of dismissal could not have relied on the alleged statement of the plaintiff accepting the guilt of collecting charges and not issuing tickets to the passengers without serving copy thereof with the charge sheet. He submitted that the ultimate order of punishment passed against the plaintiff relying on such statement of the plaintiff without serving copy of such statement to the plaintiff was in gross violation of the principles of natural justice. Therefore, order dismissing the plaintiff from service was null and void and the plaintiff was not required to prove anything more in his civil suit. Courts below have therefore, committed no error in declaring the order of punishment as null and void and in granting consequential benefits to the plaintiff. In support of the above arguments, learned advocate Mr. Gogia relied on the following judgments:
(1) 1993 (7) SLR page 23 in the case of Amumiyan Pirmiyan Kadri versus Gujarat State Road Transport Corporation and others.
(2) 1999 Lab. I.C. Page 437 in the case of Kuldeep Singh v. The Commissioner of Police and others.
AIR 1972 SC 1031 in the case of Delhi Cloth Mills CO. v. Ludh Budh Singh.
Having heard the learned advocates for the parties and having perused the judgment and decree passed by the courts below with the R&P of the case, it appears that the departmental inquiry was initiated against the plaintiff for the charge of non issuance of tickets to 43 ¿ passengers after collecting charges from them. In the inquiry, the plaintiff did not remain present though was duly served with the notice. It is not in dispute that the plaintiff was served with the notice to remain present in the inquiry but the contention of the learned advocate for the plaintiff is that the plaintiff was not served with the subsequent notices for different dates in the inquiry. If the plaintiff was already served with the notice of inquiry, even if the plaintiff was not served with any subsequent notice, he is not entitled to make any grievance about conducting the inquiry in his absence as the plaintiff was at least served with first two notices and still he intentionally did not participate in the inquiry.
11. As could be found from the order of dismissal, the checking officer-reporter Shri D.D. Garasiya was examined as witness of the department and on the basis of his evidence, charge came tobe proved against the plaintiff. Thus, it cannot be said that the punishment of dismissal imposed upon the plaintiff was without any evidence.
What is alleged in the plaint is that the charge leveled against him was vague and there was no evidence to prove the charge against him. In the plaint, the plaintiff has not made any grievance about non-service of notice to him. The plaintiff has thus not alleged in the plaint any illegality in the decision making process in the inquiry. The plaintiff has not adduced any evidence before the courts below as regards non-service of notice of inquiry to him and of not giving sufficient opportunities. The courts below are therefore not justified in holding that the plaintiff was not given sufficient opportunity in the inquiry. Since the evidence adduced by the department remained unchallenged in the inquiry, the courts below are also not justified in holding that it was a case of no evidence against the plaintiff in the inquiry.
Contention of the learned advocate for the plaintiff that since the checking officer did not check the cash with the plaintiff at the time of checking, charge of misappropriation against the plaintiff could not be said to have been proved has no substance. As found from the order of punishment, the competent authority in his order of punishment considered and discussed the evidence of the witness examined by the department. From the evidence as found recorded in the said order, the bus was checked at Ranavav and it was found that 43 ¿ passengers were not issued tickets though charges from all the passengers were collected by the plaintiff. It is stated by the said witness that the statement of passengers were recorded in presence of the conductor and then statement of conductor accepting his guilt was also recorded. Since this evidence of the checking officer has remained unchallenged, in the inquiry, non-checking of the cash with the conductor would not make any difference. It is required to be noted that the checking officer in his evidence before the court below has stated that the plaintiff had torn and thrown away the punched tickets each of which valued at Rs.5.00. It is further stated by him in his deposition that from the pocket of the plaintiff, ticket each of Rs.5/- from Serial No. 530205,10,11,24,25,26,28,29, 44,45,46,l49,50,51 and punched tickets each of Rs.1.00 from serial No. 978700-4-5-6-9-10-11,949064-70-71-84,85,86,87,88 were found from the pocket of the plaintiff which were stated to have been used and sold by the plaintiff on 24.4.83 in the extra trip between Porbandar to Madhavpur i.e. day prior to the day of checking. The above evidence about tearing and throwing out the tickets and finding the punched tickets from the pocket of the plaintiff has remained unchallenged. Said witness has stated in his cross examination that the passengers whose statements were recorded were in hurry to leave and the cash with the conductor could not be checked in these circumstances. He has further stated that since the passengers statements were recorded, it was not necessary to check the cash with the conductor to find out the illegal act of the conductor. He has stated that in the prevailing circumstances, it was his discretion whether to check the cash with the conductor or not. In my view, the above evidence about the non checking of the cash with the conductor would not make any difference in the facts of the case. Once the charge against the plaintiff was proved in the departmental inquiry and once no illegality in such departmental inquiry could be proved by the plaintiff in the suit, the Courts below were not justified in holding that it was a case of no evidence against the plaintiff.
14. Now examining the question about the jurisdiction of the civil court to decide the nature of the suit filed by the plaintiff, it is required to be noted that the plaintiff has in fact not alleged any violation of the principles of natural justice in the plaint but has cursorily stated that there was no indication of evidence in the departmental inquiry and order of dismissal from service passed against him was void. Further, he has made the following specific averments in para 11 of the plaint:
It is respectfully submitted that the plaintiff would rely on the provision of the Standing Orders Act of 1986. The ST Regulations and the Motor Vehicles Act together with the Industrial Disputes Act for the purpose of change in the service conditions.
15. Therefore, from the above averments made in the plaint and in absence of any specific plea of violation of the principles of natural justice, it could be said that the plaintiff himself invoked the provisions of Standing Orders Act, 1986, and the Industrial Disputes Act for resolution of the dispute and for challenge to the order of dismissal. The plaintiff having stated that the plaintiff would rely on the provisions of the Standing Orders Act, 1986 and the provisions of the Industrial Disputes Act and having not alleged violation of the principles of natural justice by giving out any particulars as to how the principles of natural justice were violated and the plaintiff having not participated in the inquiry in my view, the court had no jurisdiction to entertain the suit of the plaintiff. Therefore, the Courts below have committed serious error in allowing the suit of the plaintiff and in ordering reinstatement of the plaintiff with consequential benefits.
16. In the facts of the case and on admitted evidence, when it is found that there was no violation of the principles of natural justice and when it is found that the plaintiff has failed to prove that there was any illegality in the decision making process in the inquiry and when the plaintiff has failed to prove that it was a case of no evidence in the departmental inquiry, judgments relied on by the learned advocate for the plaintiff will be of no help to the plaintiff as in the judgments relied on by the plaintiff, lapses in the inquiry were found and it was held that there was no evidence to hold the employee guilty for the charge. In the case on hand, as discussed above, the plaintiff has failed to prove either any illegality in the inquiry or that there was no evidence in the inquiry to prove the charge against the plaintiff and the contention that the copy of the statement of the plaintiff alleged to have been recorded by checking officer was not supplied to the plaintiff with the charge-sheet and, thus, fair opportunity was not given to the plaintiff in the inquiry has no substance as the evidence given by the checking officer in the departmental inquiry referring the statement of the plaintiff has remained unchallenged by the plaintiff by not remaining present in the inquiry. Therefore, the plaintiff is not justified to allege any violation of the principles of natural justice.
17. For the reasons stated above, the appeal is required to be allowed and the judgment and decree passed by the Courts below are required to be quashed and set aside.
18. In the result, this appeal is allowed. The judgment and decree passed by the Courts below are hereby quashed and set aside.
(C.L.SONI, J.) anvyas Page 18 of 18