Gujarat High Court
Chanduji Sendhaji Khant vs Gujarat State Road Transport ... on 6 February, 1995
Equivalent citations: (1996)1GLR84
JUDGMENT
1. Civil Application came up for orders for relief in terms of Section 17B of the Industrial Disputes Act. As the matter relates to reinstatement and payment of wages, main petition, i.e., Spl. Civil Application No. 9739 of 1993 itself is heard on merits today.
2. The short issue raised in this case is whether discretion exercised by the Labour Court in substituting lesser penalty for dismissal imposed upon by the employer-petitioner can be sustained.
3. Respondent workman Chanduji Sendhaji Khant was dismissed from services on the charge that at the time of inspection, he was found to have carried passengers in the bus without issuing tickets. Punishment was imposed after holding inquiry into alleged misconduct. On the complaint having been lodged under Section 33A of the Industrial Disputes Act, 1947 on the ground that the order of punishment has been passed in violation of Section 33 of the Act, the matter was adjudicated as if Industrial Dispute has been referred to the Industrial Tribunal. The Tribunal finding that misconduct has been proved, it also found that as per material before the Tribunal about the conduct of employee, there are series of record of past conduct counted as many as 77. With this finding, the Tribunal ordered reinstatement of workman on the same post as Conductor on the minimum pay-scale. No back wages were awarded.
4. The contention of the learned Counsel for the petitioner is that on the face of finding recorded by the Labour Court, substitution of punishment of dismissal with lesser punishment in the present case, the Labour Court had not exercised its discretionary powers under Section 11A of the Act with proper approach to the problem judiciously. Exercise of discretion in the facts and circumstances of the present case, amounts to perversity. He further contended that the Industrial Tribunal has not even satisfied itself which is per-condition that the punishment awarded by management was not commensurating with the guilt of the workman.
5. The learned Counsel for the respondent-workman urged that discretion vested in the Industrial Tribunal in respect of exercise of powers under Section 11A of the Act, is of very wide amplitude and once the Industrial Tribunal is satisfied and has come to the conclusion that extreme penalty of dismissal was not justified in the present case, this Court under Articles 266 and 227 of the Constitution of India cannot interfere in exercise of discretion. His contention was that socio-economic background of the delinquent in which misconduct has been conducted is the relevant factor while considering the question of punishment commensurating with the gravity of guilt and by taking socioeconomic background of the workman, if Tribunal has ordered reinstatement with some other penalty by cancelling penalty of dismissal, no exception can be taken thereto. He relies on the Division Bench decisions of this Court in the case of Gujarat State Road Transport Corporation v. Danaji Sukhaji Kodiyar, reported in (1994-II-LLJ-1113), Gujarat State Road Transport Corporation v. Jamnadas Becharbhai, reported in 1982 (2) X X III (2) GLR 557 and judgment of this Court in the case of Gujarat State Road Transport Corporation v. Babulal J. Kharva, rendered in Spl. Civil Application No. 5581 of 1993 delivered on June 11, 1993. The learned Counsel strenuously urged that at best matter may be remanded to the Industrial Tribunal for the purpose of reinstating the workman on a different post than the one on which he has been reinstated by the Industrial Tribunal in view of the decision in the case of Jamnadas Becharbhai (supra).
6. I have carefully considered rival contentions raised before me and given thoughtful consideration to the facts recorded by the Tribunal which are not in dispute before me. It is no doubt true that jurisdiction under Section 11A of the Act conferred on the Tribunal is of wide amplitude and where Tribunal is satisfied that the punishment imposed by the employer is disproportionately excessive, the Tribunal in exercise of jurisdiction under Section 11A of the Act, it can reduce the punishment and impose lesser punishment as is thought fit by it. But nonetheless, powers of the Tribunal or Courts under Section 11A of the Act are not arbitrary, unguided and uncanalised and the same has to be exercised judiciously keeping in view of wellsettled principles and the requirement of the case depending upon the facts and circumstances of each case and no decided case furnishes a binding precedent about the quantum of punishment though certain similarities may be there. Therefore, while this Court exercising jurisdiction under Articles 226 and 227 of the Constitution does not examine the Award made by the Tribunal as an Appellate Court re-appreciating evidence and to substitute its own a conclusion which may be otherwise, nonetheless, the order is subject to scrutiny to the extent it requires scanning of the facts whether such wide discretion vesting in Tribunal has been exercised judiciously with proper approach concerning the exercise of discretion in the matter of imposition of penalty. Sine qua non for exercising discretionary powers under Section 11A of the Act, is satisfaction of the Tribunal that punishment imposed by the disciplinary authority is disproportionate to the misconduct proved. Unless that conclusion is reached, the question of exercise of direction for the purpose of substituting lesser penalty does not arise and if without recording any such conclusion, the Tribunal or Labour Court, as the case may be, embarks upon the question of penalty by assuming certain propositions not connected with workman, it can well be said that exercise of discretion in such cases cannot be sustained and Award can be interfered with.
7. In the decision in the case of Rama Kanta Mishra v. State of U.P., reported in (1982-II-LLJ-472) (SC), in the Court opined that the Tribunal or the Court has to be satisfied that eventhough misconduct is proved and a penalty has to be imposed, the extreme penalty of dismissal or discharge was not justified in the facts and circumstances of the case, meaning thereby that the punishment was either disproportionately heavy or excessive. In order to avoid the charge of vindictiveness, justice, equity and fairplay demand that punishment must always be commensurate with the gravity of the offence charged. Again, in the case of Hindustan Machine Tools v. Mohd. Usman, reported in (1983-II-LLJ-386) (SC), the Apex Court reiterated that where the punishment imposed by the employer is disproportionately excessive Labour Court/Tribunal in exercise of its discretion under Section 11A can reduce the punishment. In the case of Danaji Sukhaji Kodiyar (supra), this Court also stated in no uncertain terms that the precondition for exercise of powers under section 11A is that there should be satisfaction by the Labour Court or the Tribunal that the order of discharge or dismissal was not justified.
8. About the scope of judicial review in the case of exercise of discretion under Section 11A by the Tribunal, the Supreme Court in the case of Rama Kanta Mishra (supra) observed that the Court can examine whether Labour Court or Tribunal has properly approached the matter for exercising or refusing to exercise powers under Section 11A. In the case of Workmen v. Bharat Fritz Werner (P) Ltd., reported in (1990-II-LLJ-226) (SC), the Court said that High Court exercising Tribunal's power under Section 11A can go into adequacy of punishment for misconduct.
9. Keeping in view the aforesaid precincts of judicial review under Articles 226 and 227 of the Constitution of India, while examining the order passed by the Industrial Tribunal, I am of the opinion that under the facts and circumstances of the present case, exercise of discretion by the Tribunal cannot be sustained. It has nowhere recorded its satisfaction about the fact that punishment imposed upon the petitioner-workman was disproportionate to the guilt proved which is condition precedent for exercising discretion under Section 11A of the Act. The only ground which weighed with the Tribunal in ordering reinstatement is that with the current increase in cost of living and chances of not getting any other job would render the family of the petitioner-workman in difficult situation and as the punishment should be reformative, the workman should be given one more chance to mend his conduct on humanitarian grounds. To say the least, these general grounds will be available and applicable in all cases of dismissal of any employee irrespective of gravity of misconduct or technical nature of misconduct for which punishment has been imposed. There is nothing to show how the workman concerned would be affected and to what extent socioeconomic conditions are to be extent even taken into consideration or the purpose of Imposing punishment trough as would be discussed presently, is not abstract requirement. In this case, the Tribunal has found inquiry to he fair and in accordance with law, and found misconduct proved which is of carrying passengers without tickets implying dishonest conduct on the part of the conductor to retain with the amount collected by carrying passengers without tickets affecting revenue of a body of a public nature, which cannot be equated with petty theft once committed in monetary weakness on account of socioeconomic condition of the concerned workman, but is serious misconduct on account of nature of criminal breach of trust. It has also come on record that there is history of past 77 misconducts behind the workman. Therefore, the impugned order neither records satisfaction about the punishment being not justified being disproportionate to the misconduct proved nor does it give any relevant reasons for substituting lesser punishment. Exercise of discretion under the circumstances cannot be sustained even on limited scrutiny permissible under law and conclusion to that extent arrived at by the Tribunal must be held to be perverse.
10. Learned Counsel for the respondent placed great reliance on the case of Danaji Sukhaji (supra) in support of its contention that even in the case of bus conductor carrying passengers without tickets, this Court has upheld substitution of penalty of dismissal by imposing lesser penalty. Having carefully gone through the judgment. I am of the opinion that no such ratio has been laid down. That was the case in which there was no history of previous misconduct before Labour Court or before High Court and it appeared to be the first case of this nature. The finding about punishment being disproportionate to the misconduct proved was also recorded and the workman was also directed to be reinstated with continuity of service, but without back wages. In the facts and circumstances of that case, keeping in view of the limitation of jurisdiction under Articles 226 and 227 of the Constitution, the Court was not inclined to interfere with the matter. The conclusion of the Court was "it cannot be said what Labour Court or Tribunal has no jurisdiction to give direction as regards reinstatement of the workman without back wages. The direction not to pay back wages would be terms and conditions on which reinstatement is directed. Having regard to facts and circumstances of the case, directions cannot be said to be, in any way, unjust, arbitrary or perverse so as to call for interference in exercise of powers under Articles 226 and 227 of the Constitution of India."
11. In another case of the same employer, namely, Gujarat State Road Transport Corporation v. Babulal (supra) discretion exercised by this Court depended upon the fact that past defaults did not pertain to charge of misappropriation and in these facts, the Court while upholding the findings of the disciplinary authority about the misconduct, directed reinstatement of the workman with 70% back wages.
12. Another case on which great reliance was placed by the learned Counsel is the case of Jamnadas Becharbhai (supra), is also distinguishable on facts and does not assist petitioner-workman to any extent. In fact, in that decision, the Court clearly opined that misappropriation by bus conductor who has collected fare from passengers but did not issue tickets to them is misconduct of serious nature which cannot be viewed lightly. In this connection, the Court opined that :
"The Public Sector can never (NEVER) succeed if "everyone's" property (which it in fact is) is treated as "no one's property". The New Culture for the New Man of New India must, therefore be National Interest above all other interests including self-interest, sectional interest or class-interest. And, therefore, the bus conductor, poor as he is, may have to suffer."
It is also opined that -
"When an employee holding a sensitive post of trust has been dismissed from service, the matter may have to be viewed in a different light. In case of misappropriation by a bus conductor who has collected fare from passengers but has failed to issue tickets, his reinstatement in the same post would enable him to indulge in the same malpractice in future. Every day he has to collect the fare and issue tickets. Reinstatement in the same post would, therefore, involve grave risk because of repetitive opportunity that he would get to indulge in malpractice and the daily temptation that he would face. Perhaps he would be tempted to repair the past losses and the Corporation would be exposed to the same risk every day and it would make successful working of a public Corporation impossible. The Labour Court would, therefore, have to think more than twice before directing reinstatement in the same post as conductor. In case misappropriation by a conductor is detected and he is found guilty, punishment must be deterrent to him as also to others, for misappropriation in such circumstances would be in relation to public moneys and the burden would fall on the shoulders of the common man."
13. In fact, the question whether there should at all not be reinstatement was neither raised nor decided in this case. The only question which the Court appears to have been called upon to decide was whether reinstatement on the same post was proper or not. The Court found that reinstatement on the same post was not justified and remanded the matter back to the Tribunal for considering this aspect of the matter as to on which post the delinquent can be reinstated. Thus, this is not a case in which the question of justification of reinstatement has been raised and decided and it cannot be taken to be a decision to the effect that in all cases where bus conductor has been found to have misappropriated funds by not issuing tickets, he should be reinstated, but not on the same post but on some other post.
14. Present is the case in which the facts stare on the face of the record that he was a man who has indulged in misconduct every now and then and has been detected not less than 77 times in the past. Inspite of this the only reason, i.e., humanitarian ground which appears to have weighed with the Tribunal to give one more chance to the employee, cannot but be said to be wholly perverse and unjudicious approach to the problem at hand. It even does not reflect Tribunal's consciousness to the gravity of misconduct proved and its effect on the establishment and public interest which was consideration paramount in the mind of the Court while directing remand of the case in the facts and circumstances in Jamnadas Becharbhai's case (supra). Therefore, if viewed from the seriousness to which this Court in its decision referred to above in Jamnadas Becharbhai's case (supra) about the misconduct proved in the present case and fact of consistent past bad record on that account and there being nothing on record to suggest socioeconomic condition of workman concerned which might have tempted him to indulge in this adventurism as momentary temptation and not part of regular habit, renders the whole approach to the exercise of discretion by the Tribunal capricious, arbitrary and on extraneous considerations.
15. Before parting with the case, I may notice one contention Mr. Rathod, learned Counsel for the respondent-workman that as per decision in Jamnadas Becharbhai's case (supra), socio-economic condition of the workman is relevant consideration while deciding punishment. The decision referred to socioeconomic condition of the delinquent with reference to the circumstances in which misconduct has been carried out by the concerned employee. The socio-econotic condition which may weigh for imposing lesser penalty must necessarily have connection with socioeconomic condition of delinquent who is to be dealt with under Section 11A of the Act vis-a-vis offence committed and its general fall out of public interest. The socio-economic background of the delinquent which might have reared up the delinquent psyche in the concerned employee is the only relevant fact. It is not a vague assumption about general prevailing conditions of costs of price index and lack of employment opportunity to give a carte-blanche to the discretion exercising authority to substitute any other penalty in place of the one imposed by the disciplinary authority which is otherwise commensurating with misconduct proved in given facts and circumstances of the case. Any dismissal results in loss of employment and acts detrimental to the interest of family. If this general fall out of dismissal is to be ground for imposing lesser punishment, then no dismissal will ever be warranted. That obviously is not the purport and ratio of Jamnadas Becharbhai's case (supra)
16. Accordingly, this petition is allowed. The Award passed by the Industrial Tribunal dated August 7, 1992 at Annex. A reinstating respondent workman is hereby quashed and set aside and the punishment imposed by the disciplinary authority is restored. In the facts and circumstances of the case, there is no order as to costs. Rule made absolute.