Gujarat High Court
Gafar A. Gundigara vs G.S.R.T.C. on 9 December, 1998
Equivalent citations: (2000)ILLJ695GUJ
Author: M.S. Shah
Bench: M.S. Shah
JUDGMENT Patel, J.
1. Appellant, being aggrieved by the order passed by the learned single Judge of this Court in Special Civil Application No. 1123 of 1994 on January 11, 1995 and the order passed on February 1, 1996 in Misc. Civil Application No. 1154 of 1995 (for Review), has preferred this appeal.
2. The appellant who was serving as a Bus Conductor with Gujarat State Road Transport Corporation (for brevity, GSRTC), was found indulging in misappropriation of public funds. Departmental inquiry was initiated against him and on considering the evidence placed before the Inquiry Officer, the services of the petitioner came to be terminated. The appellant, without preferring an appeal before the appropriate authority under the Rules, preferred a Reference before the Labour Court, and the Presiding Officer, Labour Court, Bhavnagar, on October 1, 1993 in Reference (LCV) No. 30/89 allowed the Reference partly and directed the GSRTC to reinstate the appellant without backwages, with continuity of service insofar as it relates to gratuity etc. GSRTC preferred Special Civil Application No. 1123/1994 and along with the memo of petition annexed copies of (i) the report of the Inquiry Officer, (ii) the award passed by the Labour Court, and (iii) the default card of the appellant. Learned single Judge on January 11, 1995 quashed and set aside the award made by the Labour Court on October 1, 1993.
3. From the decision of the learned single Judge, it appears that the appellant was employed as a Conductor and in the course of his duty, it was found that way-bills were corrected and funds were mis-appropriated by showing reduced number of sale of tickets on number of days between January 4, 1984 and February 14, 1984. After holding inquiry for the misconduct, the same having been proved, the appellant was dismissed from service after considering his explanation. It is required to be noted that the Labour Court found that the inquiry was properly conducted and also that the finding about the misconduct of the appellant recorded during the course of inquiry was not perverse. Learned single Judge, after considering the relevant material on record, held that on the contrary, ordinarily, in the absence of any mitigating circumstances, in the facts like that of the present case, the decision of management did not call for any interference. No mitigating circumstances for awarding lesser punishment have been shown to exist.
4. Against the order passed by the learned single Judge, an application for review was submitted being Misc. C.A. No. 1154/1995 and in the opinion of the learned single Judge, there being no sufficient reason to recall the final order, rejected the application for review.
5. Learned Advocate for the appellant contended that the process was served on the Union, and, therefore, the order passed by the learned single Judge in the Special Civil Application being an ex parte order, the learned single Judge ought to have recalled the order. He further submitted that no sufficient reasons are given for not recalling the order. We have heard the learned Advocate at length on merits also, and even on merits also, we find no reason to interfere with the order.
6. Learned Advocate submitted that the Presiding Officer has exercised his discretion and considering the nature of the breach committed by the appellant, has not awarded the backwages, and has merely reinstated. He further submitted that as directed by the Apex Court, pending the hearing, he was posted as a Helper and the GSRTC should have no difficulty in continuing the appellant on the post of Helper. Learned Advocate tried to raise a question of fact with regard to the corrections made in the way-bills whether the same were made by him or not, and made lengthy submissions in this regard. The Presiding Officer, on perusal of the record, pleadings, evidence and submissions made before him, held that the inquiry was held against the appellant where he defended himself. Not only that, but before the Presiding Officer, the appellant had not challenged either the report of the Inquiry Officer or the legality of the report. However, the appellant's only contention was with regard to the punishment imposed on him that the same is disproportionate to the degree of the guilt of the appellant.
7. Considering the material placed on record, the Presiding Officer held that the Evidence Act strictly will not apply to the departmental inquiry. After holding that the order is legal, the Presiding Officer observed with regard to the punishment to the effect that mind is not applied by the authority with regard to past conduct and no record with regard to the past misconduct is produced; the authority has not applied its mind with regard to the punishment imposed on the workman concerned, and, therefore, by exercising discretion under Section 11-A of the Industrial Disputes Act, the Presiding Officer pronounced an award.
8. The Presiding Officer has committed grave error in holding that from the record it appears that for past default, no papers are produced. In the earlier part the award, it is specifically mentioned that vide Exhs. 7 to 19, the employer has produced report, charge-sheet, suspension order, inquiry paper and default card etc. as also way bill, vide Exh. 13.
9. Learned advocate for the appellant, along with the appeal memo filed before this Court, has produced a copy of the Special C.A., its index and award passed by the Labour Court. Though in the index there is a specific reference about copy of the report of the Inquiry Officer and copy of the Default Card of the respondent, the same are not produced before this Court. This amounts to nothing but suppression of material facts. The appellant has not come with clean hands.
10. The default card, which runs into four typed pages indicates the defaults committed by the appellant on 7 occasions in the past. It appears that the amount recovered from the passengers did not reach GSRTC. The action taken against the appellant is also mentioned in the default card. From these details, it is apparent that the illegal acts or omissions on the part of the appellant on various dates mentioned in the order by the learned single Judge were not the only circumstances. Reading the report of the inquiry officer, it appears that on 17 occasions from January 4, 1984 to February 14, 1984, the appellant committed misconduct by misappropriating the public funds. The appellant, on April 28, 1984, has admitted having done corrections in the way Bill, on all the dates for which inquiry was conducted. In specific words, he has mentioned the opening and closing numbers of the tickets and with regard to corrections in the ticket numbers, he has stated that it was done by mistake. In the concluding paragraph, he has stated that he is not responsible for this. Having not challenged before the Presiding Officer, it is not open for the appellant to raise the submission about the corrections before this Court in LPA. Opportunity was given to him before the Labour Court where he has not challenged the legality of the proceeding initiated before the Inquiry Officer or has not challenged the findings recorded by the Inquiry Officer. Now it is not open for him to raise the questions of fact before this Court.
11. Learned single Judge observed that "looking to the gravity of charge of misappropriation of funds by regularly correcting way-bills which has been accepted to be correct by the Tribunal, it does not" stand to reason that any punishment less than dismissal from service could warrant, could be justified. It is required to be noted that the Labour Court came to the conclusion that the finding of the departmental inquiry was legal and proper." The appellant was, therefore, held guilty of misappropriating public funds. In such a case, the Labour Court ought not to have interfered with the punishment which was awarded to him by the employer. The Labour Court lost sight of the employee's conduct and his past record. It overlooked the facts that even prior to the several instances mentioned in the record, the appellant misconducted himself on several occasions and was punished. In a case where an employee dealing with public funds is found misappropriating the funds of the Corporation on repeated occasions, it would be unwise to keep such a person in public employment.
12. This is not a case of monetary temptation or a solitary instance of indulging in misappropriating public funds. If there is a good past record and on account of compulsion employee is found misconducting once, question of proportionate punishment may arise. Tribunal has seriously erred in passing an order of reinstatement in the same post without imposing any punishment. Withholding backwages is not an order of punishment. Again, by reinstating on the same post, the Tribunal has lost sight of opportunities available to indulge in similar activities. In case of a bus conductor who is found guilty for misappropriating, punishment must be deterrent to him as also to others. Common man would be the sufferer in case of a conductor found guilty of misappropriating funds of a Corporation which is a public undertaking. In our opinion, the appellant, a bus conductor who is found guilty misappropriating public funds not once but looking to the record on several occasions deserves no sympathy as GSRTC had no faith in him because he misconducted himself, has rightly taken the decision. Decision taken rightly cannot be substituted because of misplaced sympathy by stating that no record of past misconduct is produced though in fact it was produced.
13. On account of unemployment, many persons are wait listed with Employment Exchanges - many with higher qualifications. Persons who are employed must think that they are better placed than others, i.e. those who are waiting in queue. Such employed persons must bear in mind this aspect and when they are in Government or in public sector, they should see that nothing is reflected against them for want of proper care or because of any misconduct. When employee has misconducted himself considering the nature of misconduct, orders must be passed. In the present case, looking to the repeated acts reflected in the order and default card, we are of the opinion that the impugned order requires no interference. Let others waiting in queue get the chance of serving as the person who was appointed has grossly misconducted himself.
14. In the circumstances of the present case, we do not find any reason to interfere with the order passed by the learned single Judge. The appeal is dismissed.