Gujarat High Court
Naranbhai vs Divisional on 6 May, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/5164/2011 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5164 of 2011
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NARANBHAI
BHEMABHAI PARMAR - Petitioner(s)
Versus
DIVISIONAL
DIRECTOR - Respondent(s)
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Appearance :
MR
SP MAJMUDAR for
Petitioner(s) : 1,MRKIRITVCHAUDHARI for Petitioner(s) : 1,
None
for Respondent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 06/05/2011
ORAL
ORDER
1. Heard learned advocate Mr.S.P.Majmudar for petitioner.
2. In this petition, petitioner - Shri Naranbhai B. Parmar, has challenged award passed by Labour Court, Mehsana in Reference No.843 of 2008 (Old No.18/2007), Exh.24, dated 13.10.2010, whereby, Labour Court has dismissed Reference filed by petitioner.
3. Learned advocate Mr.Majmudar appearing on behalf of petitioner submitted that departmental inquiry admitted by petitioner - workman but, petitioner has challenged legality and validity of finding which has not been properly examined by Labour Court while exercising powers under Section 11A of I.D.Act,1947. He also submitted that punishment of dismissal in case when conductor has received amount of fare and not issued tickets, is considered to be a harsh punishment and therefore, it is required to be modified by this Court. He also submitted that at the time when bus was checked by checking staff, in all 29 passengers were travelling and bus was local and it was a night time and way bill of conductor was open. Therefore, conductor was on process of issuing tickets, meanwhile bus was checked. Therefore, there was no bad intention of workman. He also submitted that reasoning given by Labour Court that if bus was not checked by checking staff, then conductor may misappropriate aforesaid amount of fare received from passengers. Therefore, reasoning which has been given is based on presumption and for that, Labour Court has committed gross error in rejecting reference filed by workman. Except that, no other submission is made by learned advocate Mr.Majmudar.
4. I have considered submissions made by learned advocate Mr.Majmudar and also perused award in question. The petitioner was working as a conductor with Corporation since more than 20 years according to statement of claim filed by petitioner before Labour Court at Exh.8. The bus of petitioner was checked by checking staff on 25.9.1998 when he was on route from Vadnagar-Jalampur and bus was checked at Dharoi colony, at that occasion passengers were found without tickets, though fare was collected by petitioner - conductor. Therefore, charge-sheet was served to workman and thereafter, he was transferred to Vadnagar Depot to Kadi Depot. and then, he was dismissed from service on 15.6.2004.
5. Before Labour Court, petitioner - workman has not challenged legality and validity of departmental inquiry but, has challenged only finding given by Inquiry Officer. The respondent - Corporation has filed reply Exh.9 denying averments made by petitioner in statement of claim. The respondent - Corporation has produced certain documents on record vide list Exh.10, Exh.10/1 to 10/9 which has been given pakka Exh.12 to Exh.20. The Corporation has produced entire record of departmental inquiry including default card. The pursis was filed by workman Exh.11 not challenging legality and validity of departmental inquiry. Thereafter, workman was examined vide Exh.21 and on behalf of Corporation, no oral evidence has been led because papers of departmental inquiry are exhibited before Labour Court. The Labour Court has considered allegations made against workman when bus was checked on 25.9.1998. At the time of checking, three different group of passengers comes to 26, who were traveling from Vav to Mahor Patiya and from them, fare was collected by conductor which amount comes to Rs.78/-. Even at the point of time of checking tickets were not given or issued by conductor to concerned passengers. Therefore, statements of passengers were recorded on the spot by checking staff. But that statement was not signed by conductor and refused it. The petitioner conductor has misbehaved with checking staff when the bus was checked by checking staff. The Labour Court after appreciating entire evidence which has been produced by Corporation and exhibited before Labour Court, come to conclusion that finding recorded by Inquiry Officer cannot consider to be a baseless and perverse. The spot statement of petitioner which was recorded on 25.9.1998 when bus was checked by checking staff Exh.12/6 wherein signature of driver was also obtained and statement of passengers Exh.12/1 to 12/5 recorded by checking staff, that has been proved by reporter while giving evidence in departmental inquiry. In spot statement given by passenger where specific allegations were made against conductor that amount of fare was paid to conductor at the time when they boarded in the bus, even though upto checking point after recovering fare, conductor has not issued tickets to passengers.
6. The contention which has been raised by advocate of conductor before Labour Court that passengers were not examined in departmental inquiry. That has been considered by labour Court while relying upon decision of Apex Court in case of State of Haryana v. Ratan Sinh, reported in AIR 1977 SC 1512 and a decision reported in 1998 2 GLR
193. Therefore, Labour Court has come to conclusion that as per Rules of Corporation, without issuing tickets by conductor, bus should not have to be started. Therefore, Labour Court has come to conclusion that conductor has misappropriated amount of fare received from passengers and not issued tickets. This being a serious misconduct committed by petitioner - workman. The default card has been considered Exh.18 in which in all 23 misconducts in past committed by workman. Earlier also, he was dismissed from service and looking to present misconduct which is found to be proved against conductor, Labour Court has thought it fit not to exercise powers under Section 11-A of I.D.Act,1947 because Labour Court is satisfied that punishment of dismissal is not disproportionate looking to gravity of misconduct committed by workman.
7. The Labour Court has considered decisions of Apex Court in case of Punjab & Others v. Ram Sinh, reported in JT 1992 (4) SC 253;, Municipal Corporation, Bahadurgadh v. Krishnan Bihari, reported in 1997 (73) FLR 1429; Janta Bazar South Canara Central Co-op. Wholesale Stores Ltd. and Others v. Secretary, Sahkari Sangh and others, reported in 2000 (2) LLJ 395; UPSRTC v. Mohanlal Gupta and Others, reported in 2001 LLR 1154; a decision reported in AIR 2003 SC 1462; UPSRTC, Itawa v. Hotilal and Others, reported in 2003 (96) FLR 1076; North-West KSRTC, Hubli v. S.S. Polecy, reported in 2001 (88) FLR 254; Divisional Controller, KSRTC v. A. Timani, reported in (2005) 3 SCC 254; Union of India & Anr. v. S.S. Ahuvadlla, reported in 2007 (2) CLR 391; recent decision of Apex Court in case of UPSRTC v. Nanhelal Kushawa, reported in 2009 LLR 1149 and thereafter, recent decision of Apex Court in case of UPSRTC v. Sureshchand Sharma, reported in 2010 LLR 760. After considering all decisions wherein Apex Court has held that in case of dishonesty, corruption and misappropriation if it is found to be proved against workman, that is to be considered being a serious misconduct and in such circumstances, punishment of dismissal cannot be held to be disproportionate. The Labour Court is having a limited power under Section-11A of I.D.Act,1947 in case when conductor lost confidence of Corporation and misappropriated amount of fare means revenue of Corporation and in such circumstances, labour Court has rightly satisfied that not to exercise powers under Section 11A of I.D.Act,1947 because punishment of dismissal in such circumstances cannot consider to be disproportionate or unjust.
8. In case of UPSRTC v. Sureshchand Sharma, reported in 2010 (6) SCC 555, which decision is also considered by labour Court, the Apex Court has observed in Para.21, 22, 23, 24 are under :
"21. We do not find any force in the submissions made by Dr. J.N.Dubey, learned Senior Counsel for the employee that for embezzlement of such a petty amount, punishment of dismissal could not be justified for the reason that it is not the amount embezzled by a delinquent employee but the mens rea to mis- appropriate the public money.
22. In Municipal Committee, Bahadurgarh Vs. Krishnan Bihari & Ors., AIR 1996 SC 1249, this Court held as under:-
"4. In a case of such nature - indeed, in cases involving corruption - there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant."
Similar view has been reiterated by this Court in Ruston & Hornsby (I) Ltd. Vs. T.B. Kadam, AIR 1975 SC 2025;
U.P. State Road Transport Corporation Vs. Basudeo Chaudhary & Anr., (1997) 11 SCC 370; Janatha Bazar (South Kanara Central Cooperative Wholesale Stores Ltd.) & Ors. Vs. Secretary, Sahakari Noukarara Sangha & Ors., (2000) 7 SCC 517;
Karnataka State Road Transport Corporation Vs. B.S. Hullikatti,
AIR 2001 SC 930; and Regional Manager,
R.S.R.T.C. Vs. Ghanshyam Sharma, (2002) 10 SCC 330.
23. In Divisional Controller N.E.K.R.T.C. Vs. H. Amaresh, AIR 2006 SC 2730; and U.P.S.R.T.C. Vs. Vinod Kumar, (2008) 1 SCC 115, this Court held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption/misappropriation, the only punishment is dismissal.
24. Thus, in view of the above, the contention raised on behalf of the employee that punishment of dismissal from service was disproportionate to the proved delinquency of the employee, is not worth acceptance.
25. The Appeal preferred by the Corporation I.e. Civil Appeal No. 3086 of 2007 is allowed. The judgment and order of the High Court dated 7.9.2005 is hereby set aside and the Award of the Labour Court dated 28.4.1995 is restored. The appeal preferred by the employee I.e. Civil Appeal No.3088 of 2007 is hereby dismissed. No order as to costs."
9. In light of various decisions of Apex Court based on same misconduct, corruption, dishonesty and misappropriation found to be proved against workman, in such circumstances no interference is required to be made by Labour Court while exercising powers under Section 11-A of I.D.Act,1947. For that according to my opinion, contentions raised by learned advocate Mr.Majmudar cannot be accepted. In departmental inquiry because of evidence given by reporter and number of statements given by passengers as well as spot statement given by conductor - present petitioner wherein signature of driver was there and in that statement, conductor has admitted misconduct of collecting fare and not issuing tickets to passengers upto checking point. This being a sufficient evidence led in departmental inquiry and finding is based on such documents, cannot consider to be baseless and perverse. Therefore, contentions raised by learned advocate Mr.Majmudar that finding given by Inquiry Officer is baseless and perverse, cannot be accepted. According to my opinion, Labour Court has rightly examined issue while adjudicating reference. For that, Labour Court has not committed any error which requires interference by this Court while exercising powers under Article 227 of the Constitution of India. Hence, there is no substance in present petition. Accordingly, present petition is dismissed.
[ H.K.RATHOD, J. ] (vipul) Top