Gujarat High Court
Gujarat State Road Transport ... vs Naginbhai K. Tandel on 4 January, 2001
Equivalent citations: (2001)4GLR3525
JUDGMENT K.M. Mehta, J.
1. Gujarat State Road Transport Corporation-Petitioner has filed this petition challenging the judgment and award dated 27-12-1991 passed by Presiding Officer, Labour Court, Navsari in Reference (LCN) No. 544 of 1989 wherein the Labour Court was pleased to reinstate Shri Naginbhai Kanjibhai Tandel, workman-conductor without back wages.
2. The facts giving rise to die present petition are as under:
Shri Naginbhai Kanjibhai Tandel was working as conductor with Gujarat State Road Transport Corporation, Valsad Division, petitioner herein. It has been stated in the petition that the respondent was working since 1965 and since 1965 he was committing irregularities in connection with issuance of tickets and misappropriation of the Corporation fund. It was stated in the petition that the respondent-employee had committed said irregularities. It was alleged that respondent has committed such alleged irregularities on 17-5-1965, 7-11-1968, 2-10-1968, 31-12-69, 6-12-1990, 11-7-1970, 16-7-1970, 2-9-1970, 9-2-1971, 11-10-1970, 26-2-1971, 14-7-1971, 1-10-1972, 1-8-1973, 16-7-1973, 3-11-1973, 29-9-1974, 12-7-1974, 22-6-1974, 17-5-1974, 18-7-1975, 26-3-1977, 7-5-1980, 15-4-1984 and 22-7-1987. It was further alleged that on some occasions he had also remained absent without prior leave.
Present Controversy:
3. It was alleged in the petition that the respondent was on duty as a conductor on 22-7-1987 in the bus plying between Navsari to Dandi and the respondent was found to have collected Rs. 13/- from 10 women passengers and issued tickets worth Rs. 10/- only in their favour. A regular Departmental Enquiry was held against the respondent-workman. The enquiry officer found the workman guilty of the charges alleged against him. On the basis of the Inquiry Report, the Competent Authority passed the order on 20-12-1988 dismissing the workman from service.
4. Being aggrieved and dissatisfied with the said dismissal order the respondents invoked jurisdiction of the Labour Court by filing Reference (LCN) No. 544 of 1989 before the Labour Court, Navsari, stating that he was doing his job honestly and diligently. It was stated that instead of collecting Rs. IIhe has only collected Rs. 10/- and therefore, there is misconduct of Rs. 3/- only. Regarding departmental inquiry he has stated that departmental inquiry was held and he was dismissed from services.
5. Before the Labour Court the Corporation has filed reply Exh. 7 wherein it has been stated the Departmental Inquiry was held against respondent on the ground of misconduct and a regular departmental inquiry was held by competent officer and the dismissal order was passed. The respondent herein denied the contention raised by the employer in the petition. It was stated that though the respondent employee had collected Rs. 10/- from the passengers, but he did not issue tickets and when bus was checked till then he had not issued the tickets. It was stated that in this view of the matter the misconduct committed by the employee is very serious, and therefore, the Corporation has dismissed the services of the respondent. It was stated that principles of natural justice were complied with. The Labour Court, Navsari by judgment and award dated 27-12-1991 reinstated the workman without back wages.
6. Mr. Hardik Raval, learned Counsel for the petitioner stated that though conductor is a small employee, but he has to collect fare from the passengers, but he is the major source of revenue. As far as petitioner-Corporation is concerned, there are 22,000 conductors who are carrying out the services of issuance of tickets and collect fare from various passengers. In this case, in past also the respondent has been given various memos. In fact, he was dismissed, sometime increment was stopped and Mr. Rawal stated that in this case in all about 30-32 irregularities committed in past, and therefore, in the interest of Corporation, he ought not to have been continued in the service of the Corporation. The order of Labour Court directing the reinstatement of such employee is not in the interest of Corporation.
7. The learned Counsel for the petitioner also relied upon another judgment of the Hon'ble Supreme Court in the case of U.P. State Road Transport Corporation v. A.K. Parul , wherein para No. 3 the Apex Court has observed as under. In the case before the Hon'ble Supreme Court Shri A.K. Parul, respondent was a conductor charged for taking certain passengers without ticket. An inquiry was conducted by department and he was found guilty. The Disciplinary Authority removed the respondent from the post of Conductor. He moved the High Court challenging the order of removal. The High Court, while concurring with the finding of the authority that charges levelled against the respondent were proved, however, held that the punishment awarded did not commensurate with the gravity of the charge. On the basis, the High Court set aside the punishment and directed die reinstatement of the respondents. It further gave direction to extend all the benefits to the respondent arising out of the setting aside of the removal order. In the background of the matter in para No. 3 the Apex Court has observed that:
This Court consistently has taken the view that while exercising judicial review the Courts shall not normally interfere with the punishment imposed by the authorities and this will be more so when the Court finds the charges were proved. The interference with the punishment on the facts of this case cannot be sustained. In State Bank of India v. Samarendra Kishore Endow this Court held that imposition of proper punishment is within the discretion and judgment of the Disciplinary Authority. It maybe open to the Appellate Authority to interfere with it, but not to the High Court or to the Administrative Tribunal for the reasons that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 225. As noticed earlier, the High Court, having found the charges proved, is not justified interfering with the punishment imposed by the Disciplinary Authority, particularly when in this case, the respondent was once removed from service on the charge of corruption and again reinstated. On the facts, the interference by the High Court was not at all justified. Accordingly, the appeal is allowed, the order of the High Court is set aside and the writ petition filed by the respondent in the High Court stands dismissed. No order as to costs.
8. The learned Counsel for the Corporation also relied upon the judgment of pe Hon'ble Supreme Court in the case of Janatha Bazar South Kanara Central Co-operative Wholesale Stores Ltd. Etc. v. Secretary Sahakari Noukarara Sangh, Etc., reported in 2000 AIR SCW 3439, wherein the Hon'ble Supreme Court has considered the earlier judgment and stated that law in Paras 6, 7 and 8 as under:
(Para 6) Law on this point is well settled. Re : Municipal Committee Bahadurgarh v. Krishnan Behari . In U.P. State Road Transport Corporation v. Basudeo Chaudhary Court set aside the judgment passed by the High Court in the case where a conductor serving with the U.P. State Road Transport Corporation was removed from service on the ground that alleged misconduct of the conductor was attempt to cause loss of Rs. 65/- to the Corporation by issuing tickets to 23 passengers for a sum of Rs. 2.35, but recovering @ Rs. 5.35 per head and also by making entry in the waybill as having received the amount of Rs. 2.35, which figure was subsequently altered to Rs. 2.85. The Court held that it was not possible to say that Corporation removing the conductor from service has imposed a punishment which is disproportionate to his misconduct. Similarly in Punjab Dairy Development Corporation Ltd. v. Kala Singh , this Court considered the case of a workman who was working as a Dairy Helper-euro-Cleaner for collecting the milk from various centres and was charged for the misconduct that he inflated the quantum of milk supplies in milk centres where there were less fat contents. The Court held that "in view of proof of misconduct a necessary consequence will be that Management has lost confidence that the Workman would truthfully and faithfully carry on his duties and consequently the Labour Court rightly declined to exercise the power under Section 11-A of the I.D. Act to grant relief with minor penalty.
(Para 7) In view of the aforesaid settled legal position, the High Court materially erred in confirming the directions given by the Labour Court in reinstating the respondent-workmen with 25% back wages. For giving the aforesaid direction, the Labour Court considered that there is no evidence regarding past misconduct by the employees, and therefore, it can be observed that they have rendered several years of service without any blemish and to some extent, there was lapse on the part of the Management.
(Para 8) In case of proved misappropriation, in our view, there is no question of considering past record. It is the discretion of the employer to consider the same in appropriate cases, but the Labour Court cannot substitute the penalty imposed by the employer in such cases.
9. The learned Advocate for the petitioner relied upon the judgment of Division Bench of this Court in the case of Gujarat Slate Road Transport Corporation v. Kachraji Motiji Parmar , wherein the Division Bench of this Court Coram : M.B. Shah as he was then & B.S. Kapadia JJ. in para Nos. 5 and 6 has observed that:
Under Section 11A of the Industrial Disputes Act the Industrial Tribunal or the Labour Court is not having unguided power to set aside the justified order passed by the Management, the power under Section 11A has to be exercised judicially and the Industrial Tribunal or the Labour Court can interfere with the decision of the Management under Section 11A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. This Court has repeatedly held that misappropriation if held established, would be a major misconduct and normally dismissal order passed by the competent authority should not be interfered with by the Labour Court or the Industrial Court under Section 11A of the Industrial Disputes Act.
In the present case, it is apparent that the Labour Court has misdirected itself and has misplaced sympathy though the workman has committed grave misconduct. He has designedly re-issued 15 used tickets. This would indicate that the workman had planned it in advance to collect the tickets from the passengers with view to re-issue the same in the next trip. Not only this, but the workman in the present case has not issued tickets to the two passengers even though he had collected the fare from them. Further, he has not issued tickets to three passengers and lastly he has punched some tickets in such a manner so that they can be re-issued in subsequent trip. This conduct on the part of the workman establishes beyond any doubt that the act of the workman was pre-planned and well designed to misappropriate the bus fare amount. Apart from this aspect, there was no reason for the Labour Court to ignore the fact that the workman was involved in 44 default cases and on one occasion he was removed from service. In this view of the matter, in our view, the order passed by the Labour Court is on the face of it unreasonable and unjustified. The Labour Court ought to have held that in the facts and circumstances of the case this was not a fit case for exercise of jurisdiction under Section 11A of the Act.
10. The learned Advocate for the petitioner submitted that the respondent was a Conductor who is in charge of collecting fare. Previously, in about 28- 30 instances he was found collecting fares but not issuing tickets and thereby causing severe economic loss to me Corporation. The Corporation has sometimes gave warning and at one time he was also removed ultimately he was taken back on the humanitarian ground. In spite of this fact, the respondent-employee has not changed his habit of collecting fare and not issuing tickets.
11. The learned Counsel for the petitioner has relied upon Section 11A of the fndustrial Disputes Act, 1947 which provides power of the Labour Courts, Tribunals to give appropriate relief in case of discharge or dismissal of workmen. He submitted that howsoever power under Section 11A are wide the powers of Tribunal under Section 11A are nor arbitrary, ungained and uncanalised. The power of the Labour Court is too limited. It can interfere only when punishment is disproportionate to the proved guilt and to give reason in support of its decision. He submitted that the Tribunal or the Court has to be satisfied that even though misconduct is proved and penalty has to be imposed the minimum penalty of dismissal or discharge was not justified in the facts and circumstances of the case, meaning thereby that the punishment was disproportionately heavy or excessive. He submitted that the punishment must always be commensurate with the gravity of the offence. He therefore submitted that in this case as indicated earlier the respondent workmen committed irregularities for about 20-25 times previously and in the present case also misconduct has been committed. He submitted that in view of the judgment of the Hon'ble Supreme Court in the case of U. P. State Road Transport Corporation (supra), Janatha Bazar (South Kanara Central Co-operative Wholesale Stores Ltd., (supra) and also judgment of this Court in the case of Gujarat State Road Transport Corporation v. Kachraji the Labour Court has not followed the principles under Section 11A of the Industrial Disputes Act.
12. In my view looking to the past conduct of the employee, report of the inquiry officer, after going through the judgments of the Hon'ble Supreme Court and this Court the Tribunal has not properly exercised jurisdiction vested under Section 11A of the Act. In fact, the Tribunal has failed to exercise jurisdiction indicated under Section 11A of the Act when the Tribunal pleased to direct die reinstatement of the workman and to consider the services, of the workman as continuous. In my opinion, the Tribunal has unnecessarily shown sympathy to the workman in spite of the fact that there is clear case of fraud and misappropriation of funds of the Corporation by the respondent in this behalf.
13. In my view, therefore, the petition deserves to be allowed and order 'dateu' 27-12-1991 passed by the Labour Court, Navsari is hereby quashed and set aside. Rule is made absolute. No order as to costs.