Gujarat High Court
Dineshkumar Amritlal Modi vs Divisional Controller Shri on 25 June, 2021
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1653 of 2013
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DINESHKUMAR AMRITLAL MODI
Versus
DIVISIONAL CONTROLLER SHRI & 1 other(s)
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Appearance:
MR NB TIWARI(1121) for the Petitioner(s) No. 1
MR SOAHAM JOSHI AGP (1) for the Respondent(s) No. 2
MR HARDIK C RAWAL(719) for the Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 25/06/2021
ORAL JUDGMENT
1. The petitioner - workman has filed this petition under Articles 14, 19, 21, 226 and 227 of the Constitution of India for the following reliefs:
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C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021 A. Your Lordships be pleased to pass appropriate writ, order or direction to quash and set aside the Judgement and Order dated 6-11-2012 passed in Reference (L.C.J.) No.17/08 by the Presiding Officer, Labour Court No.1, Jamnagar.
B. Your Lordships be further pleased to direct the
respondent to reinstate the petitioner
immediately with full back wages, all related benefits and rights, with continuity in service.
C. Pending admission, final hearing and disposal of this petition, the order mentioned in this pryer clause A be stayed and secondly interim reinstatement of the petitioner be ordered.
D. Any other relief deemed just and proper may also be kindly granted.
2. Heard Mr.N. B. Tiwari, learned counsel for the petitioner, Mr.H. C. Rawal, learned counsel for respondent No.1 and Mr.Soham Joshi, learned Assistant Government pleader for respondent No.2 - State at length through video conferencing.
3. Mr.N. B. Tiwari, learned counsel for the petitioner has vehemently submitted that the petitioner was appointed as a conductor in respondent - Corporation and at that time, he has produced certain documents which were verified by the officer of the Corporation. He has also submitted that the petitioner was appointed in the S.T. Bus services at Mehsana and, thereafter, he was transferred to Dwarka Depot. He has submitted that the Page 2 of 11 Downloaded on : Mon Jun 28 20:13:58 IST 2021 C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021 Corporation has issued charge-sheet against the workman - conductor on the ground that at the relevant time, he has submitted false certificate of having taken training for First Aid. According to him, the workman has submitted the said certificate from "St. Jon Ambulance Association" and he has already undergone training of First Aid. He has submitted that in the departmental inquiry, the person from the said association was not examined and an opportunity of leading evidence was not provided to the workman. He has submitted that the observation of the Corporation as well as the Labour Court that due to alleged false certificate of First Aid, there is financial loss to the Corporation is erroneous. He has submitted that the petitioner is victim as the person from the said association has provided the certificate after taking Rs.400/- from him, and the petitioner is not at fault. He has submitted that during the inquiry, his statement was recorded which is not in consonance with the law and was not given any opportunity of cross-examining the persons from the alleged association, who has issued the First Aid Certificate. While inviting the attention of the Court to the observations made by the Labour Court to the effect that during the interregnum period, the workman was working, he has Page 3 of 11 Downloaded on : Mon Jun 28 20:13:58 IST 2021 C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021 submitted that it is erroneous.
4. According to Mr.Tiwari, learned counsel, the workman has filed an appeal before the competent authority but the appeal came to be dismissed and, therefore, he filed reference before the Labour Court. According to him, the workman is holding genuine certificate of the First Aid which he has submitted before the authority. He has submitted that the observations of the Labour Court in dismissing the reference is factually as well as legally not tenable. He has prayed to quash and set aside the impugned award and allow the present petition and the respondent be directed to reinstate the workman with full back wages.
5. Per contra, Mr.H. C. Rawal, learned counsel for respondent No.1 - Corporation has submitted that the workman has not challenged the inquiry and in his cross-examination, he has accepted that the inquiry was legal and valid. He has submitted that without challenging the departmental inquiry, the petitioner has challenged only punishment imposed upon him for production of the false certificate of the First Aid. He has also Page 4 of 11 Downloaded on : Mon Jun 28 20:13:58 IST 2021 C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021 submitted that the concerned institution has informed the Corporation that it has never issued such certificate to the petitioner herein. While inviting the attention of the Court to the observations of the Labour Court as well as findings of facts by the inquiry officer, Mr.Rawal, learned counsel has vehemently submitted that the inquiry was conducted in proper manner and this Court may not interfere with the findings of facts of the Tribunal under Article 227 of the Constitution. He he submitted that it is for the employer to impose punishment in departmental inquiry and the Court cannot substitute its decision and cannot work as an appellate authority over the order of punishment imposed upon the employee. He has submitted that in the present case, the petitioner has not challenged the departmental inquiry at all and has only requested to impose lesser punishment. While relying upon the following decisions, Mr.Rawal, learned counsel has prayed to dismissed the present petition.
1. Ex Sig. Man Kanhaiya Kumar Vs. Union of India and others, (2018) 14 SCC 279;
2. Management of State Bank of India Vs. Page 5 of 11 Downloaded on : Mon Jun 28 20:13:58 IST 2021 C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021 Smita Sharad Deshmukh and another, (2017) 4 SCC 75;
3. Ram Saran Vs. IG of Police, CRPF and Others, (2006) 2 SCC 541;
6. Mr.Soaham Joshi, learned Assistant Government Pleader for respondent No.2 has supported the arguments of Mr.H. C. Rawal, learned counsel for respondent No.1 - Corporation and has submitted that there is no illegality committed by the Labour Court in passing the impugned award and, therefore, the petition may be dismissed.
7. In rejoinder, Mr.Tiwari, learned counsel for the petitioner has submitted that the decisions relied upon by Mr.Rawal, learned counsel are not applicable to the facts of the present case. He has submitted that in the present case, the question is relating to genuineness of the certificate and therefore, the punishment imposed upon by the authority is not consonance with the genuine mistake committed by the petitioner. He has submitted that the mistake committed by the workman is inadvertent mistake and for that purpose, the order of dismissal Page 6 of 11 Downloaded on : Mon Jun 28 20:13:58 IST 2021 C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021 is not proper.
8. In the case of Ex Sig. Man Kanhaiya Kumar (supra), while referring to its earlier decision in the case of Union of India Vs. M. Bhaskaran, 1995 Supp. (4) SCC 100, the Supreme Court has observed that if any employment obtained by committing fraud, the same cannot be countenanced by a court of law as the employment secured by fraud renders it voidable at the option of the employer.
9. In the said decision, while referring to the decision of Ram Saran v. CRPF, (2006) 2 SCC 541, the Apex Court has observed in para-8 as under:-
8. The courts should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Associated Provincial Picture Houses Ltd v. Wednesbury Corpn., (1947) 1 KB 223 :
(1947) 2 All ER 680 (CA) commonly known as Wednesbury case (1948) 1 KB 223 : (1947) 2 All ER 680 (CA) the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision - making process and not the decision. (see V. Ramana v. A.P. SRTC, (2005) 7 SCC 338).Page 7 of 11 Downloaded on : Mon Jun 28 20:13:58 IST 2021
C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021
10. In the case of Management of State Bank of India (supra), the Apex Court has held in para-5 as under:-
"5. It is well-settled principle that the High Court will not reappreciate the evidence but will only see whether there is evidence in support of the impugned conclusion. The court has to take the evidence as it stands and its only limited jurisdiction is to examine, whether on the evidence, the conclusion could have been arrived at. (See Union of India v. H. C. Goel, (1964) 4 SCR 718 : AIR 1964 SC 364)."
11. In the case of Ram Saran (supra), the Apex Court while referring to its earlier decision in para-8, has observed that the scope of judicial review is limited to the deficiency in the decision
- making process and not the decision. The courts should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. The court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator.
12. Having considered the submissions made on behalf of both the sides as well as legal aspects as reflected in the aforesaid Page 8 of 11 Downloaded on : Mon Jun 28 20:13:58 IST 2021 C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021 decisions and the factual matrix, it is undisputed fact that the petitioner herein was appointed as a conductor after following due process and initially, he was posted at Mehsana and, thereafter he was transferred to Dwarka Depot. It is undisputed fact that the departmental inquiry was initiated against the petitioner for submitting false certificate of First Aid at the time of his appointment. It emerges from the materials placed on record that during the cross-examination of the petitioner in Departmental Inquiry, he has accepted that the departmental inquiry was legal. It is also appears from the record that according to the petitioner, he has got the certificate after paying Rs.400/- to the unknown person. This very fact suggests that he got certificate from unknown person. It is also admitted fact that the petitioner has not challenged the procedure adopted by the Corporation in initiation of the departmental inquiry as well as entire inquiry procedure. The petitioner's case is only regarding the challenge of punishment. Before the Labour Court, the petitioner has claimed for reinstatement with full back wages.
13. On perusal of the materials placed on record, it appears Page 9 of 11 Downloaded on : Mon Jun 28 20:13:58 IST 2021 C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021 that on inquiry, the concerned association has clearly informed the Corporation that it has never issued the First Aid Certificate to the petitioner. This very fact suggests that at the time of initial employment as a conductor, the petitioner has produced false / fabricated certificate of the First Aid which was never issued by the concerned association. Thus, the employment of the petitioner is clearly based on the false certificate. Therefore, the observations made by the Corporation in departmental inquiry as well as the observations made by the Labour Court cannot be termed as illegal. Of course, in the reasoning part, the Labour Court has committed mistake in observing that the petitioner is employed from the date of his dismissal at the time of his deposition. On perusal of the cross-examination of the petitioner before the Labour Court, it clearly transpires that he has categorically denied that he is in employment and he has specifically stated that his brother is in an employment and he is not employed anywhere. However, the Labour Court has committed mistake in observing that the petitioner has admitted that he is in employment. Be that as it may, the fact remains that to get the employment, the petitioner has produced false certificate of the First Aid which was never issued by the Page 10 of 11 Downloaded on : Mon Jun 28 20:13:58 IST 2021 C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021 concerned association. Therefore, no fault can be found on the part of the Corporation for initiation of Departmental Inquiry and imposing punishment as the employment of the petitioner was based on false / fabricated certificate. Further, the decisions of the Labour Court cannot be termed as perverse. The same is in consonance with proved facts and on legal aspects. Therefore, the same is sustainable in the eyes of law.
14. In view of the aforesaid facts and circumstances of the case, this Court is of the considered view that the present petition is liable to be dismissed and accordingly, it is dismissed. The impugned award dated 06.11.2012 passed by the Labour Court, Jamnagar in Reference (L.C.J.) No.17 of 2008 is hereby confirmed.
15. Rule is discharged. Interim relief, if any, stands vacated.
Sd/-
(DR. A. P. THAKER, J) V.R. PANCHAL Page 11 of 11 Downloaded on : Mon Jun 28 20:13:58 IST 2021