Gujarat High Court
Divisional Controller vs Mohanbhai Lakhabhai Makwana on 13 September, 2024
NEUTRAL CITATION
C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11540 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 56 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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DIVISIONAL CONTROLLER
Versus
MOHANBHAI LAKHABHAI MAKWANA & ANR.
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Appearance:
MR HARDIK C RAWAL(719) for the Petitioner(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 1
MR VB KUNDAN SINGH(3021) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
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NEUTRAL CITATION
C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024
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Date : 13/09/2024
ORAL JUDGMENT
1. Special Civil Application No. 11540 of 2015 is filed by the petitioner - employer under Articles 226 and 227 of the Constitution of India with the following years:-
"(A) be pleased to allow this petition.
(B) be pleased to issue a writ of certiorari or any other appropriate writ, order or direction by quashing and setting aside the impugned judgment / order / award dated 17-7-
2014 passed by the Labour Court, Surendranagar in Reference (I.T.) No. 7 of 2011 and also be pleased to quash and set aside order dated 3-12-2013 on exhibit 63 passed by the Labour Court, Surendranagar.
(C) pending admission, hearing and final disposal of this petition, be pleased to stay the operation, implementation, execution and enforcement of the impugned order dated 17-7-2014 passed by the Labour Court, Surendranagar in Reference (I.T.) No. 7 of 2011 and also be pleased to quash and set aside order dated 3-12-2013 on exhibit 63 passed by the Labour Court, Surendranagar.
(D) be pleased to pass such other and further orders may be deemed just and proper looking to the facts and circumstances of the case and in the interest of justice."
2. Special Civil Application No. 56 of 2017 is filed by the petitioner - workman under Articles 226 and 227 of the Constitution of India with the following years:-
"(A) Pleased to allow this petition.Page 2 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024
NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined (B) Pleased to issue a writ of certiorari or any other appropriate writ order or direction by enhancing or modified the back wages from 25 percent to 100 percent in award dated 17-07-2014 passed by the Labour Court, Surendranagar in Reference (I.T.) No. 7 of 2011.
(C) Pleased to direct the respondent no.1 to make the payment of back wages within two weeks from the date of the order of this Hon'ble Court.
(D) Pleased to pass such other and further orders deemed just and proper in favour of the petitioner looking to the facts and circumstances of the case in the interest of justice."
2. For the sake of brevity and convenience, the parties are referred to as "employer" and "workman".
3. Since both the petitions are filed against the same award and Special Civil Application No.56 of 2017 has been ordered to be placed with Special Civil Application No.11540 of 2015, the facts of Special Civil Application No.11540 of 2015 are considered as a lead matter and both the petitions are being disposed of by this common judgment.
4. Facts of the present case are that the workman was working as a conductor in Godhra Division in 1994 and when the bus was on the route from Dhangdhra to Tikar and the same was Page 3 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined reached near the Village : Amarapur, it was intercepted by the checking squad and it was found that seven passengers were travelling from Halwad to Amarapur without tickets though the fair was collected to the tune of Rs.12.25. For the alleged misconduct, a charge-sheet was issued and the departmental inquiry was conducted against the workman. On 15.07.1995, the workman was served with the office order No.51/95, D.Case No. 277 / 94 imposing imposed punishment upon him and he removed from the services. Though the workman had worked for a period of 12 years, by way of aforesaid punishment order, he was dismissed from the services. The workman has challenged the said order by filing Reference before the Labour Court, Surendranagar and the final order came to be passed below Exhibit 76 whereby the Labour Court has partly allowed the reference and ordered to reinstate the workman in service with 25% back wages from 17.02.1998 till the date of the age of superannuation of the workman and all the consequential benefits were also to be extended to the workman. That originally, the Reference was filed before the Labour Court, Godhra and on filing of the application on 18.01.2011, the Page 4 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined Reference came to be transferred from Labour Court, Godhra to Labour Court, Surendranagar vide communication No.1450 dated 27.04.2011 and thereafter, the Labour Court, Surendranagar decided the reference.
5. The Labour Court has considered the oral as well as documentary evidence on record and ultimately passed, the impugned award.
6. Heard Mr.Hardik Rawal, learned counsel appearing for the employer and Mr.V. B. Kundan Singh, learned counsel appearing for the workman at length.
7. Mr.Hardik Rawal, learned counsel appearing for the employer has submitted the same facts which are narrated in the memo of petition and has submitted that the workman was appointed as a daily wager in 1990 and, thereafter, his service came to be confirmed, so prior thereto, he was appointed. He has submitted that after confirmation, he was posted on regular post as conductor and on 02.08.1994, the workman was on duty Page 5 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined from Dhrangdhra to Tikar route and while the bus reached near the Village: Amarapara, it was intercepted by the checking squad and seven passengers were found without tickets though the fair was collected by the workman to the tune of Rs.12.25 each. He has submitted that for the alleged misconduct, the charge-sheet came to be issued against the workman and the departmental inquiry was conducted and after full-fledged inquiry, the Disciplinary Authority passed an order and dismissed the workman from the service, for which the workman has raised the dispute in 1998 by filing reference before the Labour Court, Godhra, which came to be transferred to the Labour Court, Surendranagar. He has submitted that during the pendency of the said Reference, the Labour Court has passed an order on 03.12.2013 below Exhibit 63 holding that the departmental inquiry initiated against the workman was perverse and illegal.
He has submitted that the final award was passed by the Labour Court, which is unjust, illegal and against the facts of the present case. He has submitted that after confirmation of the service of the workman, within seven years, though the 30 offences were registered against the workman, he faced the punishment Page 6 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined imposed for the alleged offences which were mentioned in the default card and also in the service book produced before the Labour Court, however, the Labour Court has ignored the said default mentioned in the service book and has discarded the relevant material evidence adduced by the employer on very flimsy ground and, therefore, the finding recorded by the Labour Court is unjust and illegal and not sustainable in the eyes of law.
He has submitted that the employer has produced relevant documentary evidence i.e. copy of the service book, copy of the default card etc., but the Labour Court has completely overlooked and ignored the same and impugned award came to be passed. Mr.Rawal, learned counsel has submitted that the workman has initially challenged the order passed by the Conciliation Officer before the Civil Court at Khambhalia by filing Regular Civil Suit No. 48 of 1995 whereby the Civil Court stayed the order of dismissal of the workman upto 09.08.1995 and the same was continued on 31.03.1997. He has submitted that against the order passed by the Civil Court, the employer has preferred Civil Appeal No. 67 of 1997 before the District Court, Surendranagar whereby the District Court vacated the interim Page 7 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined relief granted by the Civil Court vide order dated 16.02.1998 and, thereafter, the suit came to be dismissed. He has submitted that thereafter, the workman had preferred Reference before the Labour Court and so the workman has with a view to misguiding, filed different proceedings before the different Courts challenging the impugned action of the dismissal. Mr.Rawal, learned counsel has pressed into service of the decisions of the Hon'ble Supreme Court and urged that the impugned award passed by the Labour Court is erroneous and illegal. He has submitted that though the Conciliation Officer, Godhra has, while allowing the approval application, approved the dismissal order and without considering the said facts, the Labour Court, Surendranagar has held the inquiry as perverse and the order of dismissal was passed by the Disciplinary Authority is held illegal.
He has submitted that once the approval allowed granted by the Conciliation Officer, the Labour Court ought to have interfered with the order of punishment imposed upon the workman.
Mr.Rawal, learned counsel has urged to allow the petition filed by the employer and to dismiss the petition filed by the workman.
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8. Per contra, Mr.V. B. Kundan Singh, learned counsel has submitted that the Labour Court has rightly passed the impugned award holding the disciplinary proceedings as perverse and held the inquiry proceedings as illegal after considering the submissions and the record produced before the Labour Court. He has submitted that relying upon such facts, order of dismissal was quashed by the Labour Court and order of reinstatement with 25% back wages was passed which is just and proper and on the contrary, the workman has filed Special Civil Application No.56 of 2017 challenging the impugned award praying that instead of 25% back wages, the workman is entitled for 100% back wages once the Court came to the conclusion that the inquiry held to be illegal and perverse then the impugned order of punishment passed by the Disciplinary Authority is also required to be quashed and set aside. He has submitted that the charge-sheet issued by the employer with regard to the alleged incident of 02.08.1994, wherein it was alleged that while the workman was on duty on the route from Dhrangadhra to Tikar, the bus was intercepted by the checking squad at Ghanshyampur Village where six passengers travelling from Page 9 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined Khambhalia to Salaya, the amount of Rs.2.50 each was collected by the workman but the tickets were not issued, however, the unpanched tickets were recovered. He has submitted that on the same route, Rs.1.25 collected from the two passengers i.e. Rs.2.50, but not issued the tickets and for that, the charge-sheet was issued for the alleged misconduct and at the time of departmental inquiry, the employer has referred and relied upon the past history and the records of the workman by the Disciplinary Authority, while passing the order of dismissal order, which fact is unjust, illegal and against the settled principles of law since it was not the part of the charge-sheet and, therefore, it cannot be referred to and relied upon by the Disciplinary Authority during the course of the inquiry while passing the order of punishment. He has submitted that the workman is under the bona fide impression challenged the impugned order before the Civil Court and, therefore, under such circumstances, it cannot be said that the workman approached with Labour Court with a delay of more than seven years as during the said period the workman has already approached the Civil Court and filed the suit.
Page 10 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined 8.1 Mr.Singh, learned counsel has referred to and relied upon the affidavit-in-reply filed on behalf of the workman. The para -
4 of the affidavit-in-reply reads as under:-
"4. The respondent submits that above stated period i.e., from the date of dismissal (14/15-7-1995) to implementation order of dismissal (17-2-98) was consumed in legal proceedings and as per sec. 14 of the Limitation Act 1963 such period is excluded therefore there is no such delay in preferring Reference. All the records of proceedings were before the Labour Court and petitioner has not raised question of delay before that Court, for the first time petitioner is raising such question deliberately before this Hon'ble Court concealing the real facts of the case hence petitioner's contention is not maintainable the eye of law. However, sec. 14 of the Limitation Act, 1963 reproduced hereinbelow for ready reference:
"14. Exclusion of time of proceeding bona fide in court without jurisdiction.-
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order Page 11 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.
Explanation: For the purposes of this section-
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
8.2 Mr.Singh, learned counsel has submitted that the petition filed by the employer being meritless deserves to be dismissed and the petition filed by the workman deserves to be allowed.
8.3 In support of his submissions, Mr.Singh, learned counsel has relied upon the following decisions:-
(1) Dineshbhai Dhudabhai Patel rendered in Special Civil Application No. 11518 of 2020 dated 07.02.2022 by this Court (Coram: Hon'ble Mr. Justice Biren Page 12 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined Vaishnav);
(2) State of Uttarakhand and others Vs. Smt. Sureshwati rendered in Civil Appeal No. 142 of 2021 dated 20.01.2021 by the Hon'ble Supreme Court;
(3) Kuldeep Singh Vs. The Commissioner of Police and others reported in (1999) 2 SCC 10;
(4) Basistha Muni Mishra Vs. Union of India and others rendered in WRIT (C) No. 57858 of 2016 dated 15.05.2023 by the High Court of Allahabad;
(5) Sandeep Kumar Vs. GB Pant Institute of Engineering and Technology Ghurdauri and others rendered in Civil Appeal Nos. 004989 - 004990 / 2024 dated 16.04.2024 by the Hon'ble Supreme Court;
9. Mr.Rawal, learned counsel has referred to and relied upon the affidavit-in-rejoinder. The relevant paragraphs of the rejoinder reads as under:-
"I say and submit that in pursuance to the impugned award dated 17-7-2014 (which was published on 1-10-2014), a legal opinion was sent by the panel advocate appearing before the Labour Court, Surendranagar. As per the same the Learned Advocate Mr. S.J. Mehta has opined that an appeal / petition should be filed. Relying upon the same the Page 13 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined Divisional Controller, Godhra by its letter no. DC/Godhra/Court/32 dated 25-3-2015 submitted the details and concurred with the opinion of the Learned Advocate. Based upon the same a detailed note was prepared by the Labour Officer on 27-3-2015. The Labour Officer relying upon the opinion of the Learned Advocate as well as the Divisional Controller, the financial burden of Rs. 3,73,632/-, the misconduct of collecting fare and not issuing tickets to seven passengers and past 30 defaults opined for the filing of appeal on 27-3-2015. The file was thereafter sent to the Chief Labour Officer and as per the note after considering the aforesaid details, financial burden and past 30 defaults, the Chief Labour Officer opined for filing of appeal before this Hon'ble Court on 27- 3-2015. The file was thereafter sent to the legal department and the legal advisor concurred with the same on 30-3-2015 after going through the earlier notes, judgment and the reasons thereof. The file was thereafter sent to the Executive Director (Vigilance) who ordered filing of appeal on 31-3-2015. I crave leave of this Hon'ble Court to refer the entire form and the file at the time of hearing of this petition. I say and submit that on preliminary inquiry of the record / affidavit in reply certain lacuna / negligence / defects have been found and I assure that corrective as well as disciplinary actions will be taken. In light of above facts the petitioner may be permitted to bring following facts to the notice of this Hon'ble Court.
A. In pursuance to the misconduct of not issuing tickets after collecting fare a charge sheet dated 12-8-1994 was issued by the competent authority, Rajkot.
B. The workman replied to the charge sheet on 26-8- 1994 and also remained present on 17-10-1994 along with Shri Juvansinh Barad (who was permitted to be the representative of the workman). The reporter of the case Mr. I.K. Vyas was cross examined by the representative of the workman and after holding of the inquiry a show cause notice was issued along with the findings to the workman.
C. In pursuance to the aforesaid show cause notice dated 7- 11-1994 the respondent workman preferred Regular Civil Suit No. 3028 of 1994 before the Court of Civil Judge (S.D.) at Rajkot and the Learned Judge was pleased to stay further disciplinary action against the respondent for 15 days (unfortunately the said fact was not brought to the notice of the officers of the Central Office at the time of taking the decision for fling the petition before this Hon'ble Page 14 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined Court). Thereafter dismissal order dated 14/15-7-1995 was passed by the Divisional Traffic Officer (Competent Authority), Godhra and an approval application was also filed before the Conciliation Officer, Godhra on the same date and one months notice pay was paid. The Conciliation Officer, Godhra by order dated 1-9-1995 granted approval to the order of dismissal by holding that the principles of natural justice are complied with and after hearing the workman the order is passed. The respondent workman again filed Regular Civil Suit No. 48 of 1995 before the Court of the Learned Civil Judge (J.D.) at Khambalia and by order dated 29-7-1995 the order was dismissal was stayed upto 9-8-1995 which was confirmed on 31-3-1997. The petitioner filed appeal No. 67 of 1997 before the District Court, Jamnagar and by order dated 16-2-1998 the Learned District Judge was pleased to vacate the stay granted by the Trial Court. It is indeed a matter of regret and misfortune that the aforesaid facts were not brought to the notice of the officers taking decision for filing appeal before this Hon'ble Court. I say and submit that a strict view of the same shall be taken after collecting / receiving all the documents from the Rajkot Division / the concerned District Court / Trial Court. The Reference was thereafter transferred from Labour Court, Godhra to Labour Court, Surendranagar in which the workman challenged the departmental inquiry and requested that the same may be decided as preliminary issue. Before the Labour Court charge sheet, report of the reporter, statement of the passengers and show cause notice were produced but the papers regarding inquiry were not produced. As the Xerox copies of the above mentioned documents were produced the Learned Judge on several reasons held the inquiry to be unjust and against the principles of natural justice by order dated 03-12-2013 and kept the matter for further hearing on 26-12-2013 for leading evidence. After 26-12-2013 a copy of service book was produced on record by the petitioner to prove the past misconducts as well as the holding of inquiry. The Learned Judge of the Labour Court was pleased to pass the impugned judgment and award dated 17-2-2014 and was pleased to direct payment of 25% of backwages from 17-2-1998 till the date of retirement (31-3-2013) and also the retirement benefits. I say and submit that by virtue of three separate legal proceedings before the Civil Court and approval application proceedings before the Conciliation Officer there is a probability of production of inquiry papers before the concerned Court / Authority. I say and submit that all efforts shall be made to Page 15 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined trace out / receiving the record from Rajkot Division or Civil Courts and the same shall be produced before this Hon'ble Court."
9.1 Mr.Rawal, learned counsel has submitted that during the pendency of the proceedings, the workman has already reached to the age of superannuation and he was paid retiral benefits. It is also submitted that against the employer, many proceedings were filed by the workmen before the different Courts and, therefore, the employer is unable to get complete and proper details and, therefore, it has missed that even the workman has filed Regular Civil Suit No. 302 of 1994 before the Civil Court, Rajkot on the basis of the charge-sheet and the show-cause notice issued on the basis of the checking made on 02.08.1994 wherein the Civil Court, Rajkot has granted stay for a period of 15 days and since it was not within the knowledge of the employer, it has passed the order of dismissal on 14/15.07.1995 and on the basis thereof, the employer moved an application before the Conciliation Officer, Godhra for approval and the authority allowed the application for approval and unfortunately such fact was not brought in the original petition before the Court and thereafter by way of subsequent event, the said fact Page 16 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined was brought to the notice of the concerned Court. He has submitted that so far as the prayer with regard to enhancement of the back wages from 25% to 100% from the date of award till the date of superannuation is concerned, the Labour Court has rightly exercised the jurisdiction vested with it and, therefore, no any infirmity or illegality committed by the Labour Court.
10. I have considered the submissions made on behalf of the learned counsel appearing for both the sides and the documents and the decisions cited at the Bar. I have also perused the impugned award passed by the Labour Court and the orders by the concerned authorities. It reveals from the material on record that though there are serious charges levelled against the workman, the Labour Court, after considering the facts and default card, ought to have considered the fact that it is now well settled and there is series of the decisions of the Hon'ble Supreme Court that if there is default or allegation of misappropriation or pilferage by the conductor, though he has collected the fairs and not issued the tickets, the same is viewed seriously. It is not material that the charge is for the lessor Page 17 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined amount or the higher amount. The act of pilferage is required to be seen and harsh action is required to be taken into consideration.
11. It is worthwhile to refer to the decisions of the Hon'ble Supreme Court in the case of Uttar Pradesh State Road Transport Corporation Vs. Vinod Kumar reported in (2008) 1 SCC 115 wherein the Hon'ble Supreme Court has held in para
- 10 as under:-
"10. As stated in the preceding paragraphs, the respondent had confined his case only to the conclusions reached by the Enquiry Officer as well as the quantum of punishment. Therefore, since the respondent had not challenged the correctness, legality or validity of the enquiry conducted, it was not open to the Labour Court to go into the findings recorded by the Enquiry Officer regarding the misconduct committed by the respondent. This Court in a number of judgments has held that the punishment of removal/dismissal is the appropriate punishment for an employee found guilty of misappropriation of funds; and the Courts should be reluctant to reduce the punishment on misplaced sympathy for a workman. That, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment. Without burdening the judgment with all the judgments of this Court on this point, we may only refer to a recent judgment in Divisional Controller, N.E.K.R.T.C. V/s. H. Amaresh, 2006 6 SCC 187, wherein this Court, after taking into account the earlier decisions, held in para 18 as under:-Page 18 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024
NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined "In the instant case, the mis-appropriation of the funds by the delinquent employee was only Rs. 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who mis-appropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money mis-appropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of mis-appropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka State Road Transport Corporation V/s. B.S. Hullikatti, 2001 2 SCC 574 was also relied on in this judgment among others. Examination of the passengers of the vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a mis-conduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum." [Underlining is ours]
12. In the case of Ruston and Hornsby India Limited Vs. T.B.Kadam reported in (1976) 3 SCC 71 wherein the Hon'ble Supreme Court has held and observed in para - 7 and 8 as under:-Page 19 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024
NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined "7. Coming now to the other points in the case: the decisions of this Court establish clearly that a workman is dismissed as a result a domestic enquiry the only power which the Labour Court has is to consider whether the enquiry was not proper and if it was so no further question arises. If the enquiry was not proper the employer and the employee had to be given an opportunity to examine their witnesses. It is not the duty of the Enquiry officer in this case to seek permission of the police constable's superiors.
It was the respondent's duty to have him properly summoned. He did not even apply to the Enquiry Officer requesting him to seek the permission of the police constable's superiors. It is therefore wrong on the part of the Labour Court to have held that the enquiry against the respondent was not a proper enquiry. Once this conclusion is reached there was no room for the summoning and examination of the police constable by the Labour Court. The question regarding the Jurisdiction exercised by an Industrial Tribunal in respect of a domestic enquiry held by the management against a worker has been elaborately considered by this Court in its decision. in D. C. M. V/s. Ludh Budh Singh, (1972 (3) SCR-29) and the principles that emerge out of the earlier decisions of this Court have been set out in that decision . The decision of this Court in Workmen V/s. Firestone Tyre & Rubber Co. (1973) (3) SCR
587) also sets out the principles that emerge from the earlier decisions. In Tata Oil Mills, Co. Ltd. V/s. Its Workmen (1964) (7) SCR 555) it was argued that where the employee is unable to lead his evidence before the domestic Tribunal for no fault of his own, an opportunity should be given to him to prove his case in proceedings before the Industrial Tribunal. This Court held that this contention was not well founded. It was pointed out that the Enquiry Officer gave the employee, ample opportunity to lead his evidence and the enquiry had been fair. It was also pointed out that merely because the witnesses did not appear to give evidence in support of the employee's case it could not be held that he should be allowed to lead such evidence before the Industrial Tribunal and if such a plea was to be upheld no domestic enquiry would be effective and in every case the matter would have to be tried afresh by the Industrial Tribunal. It was pointed out that findings properly recorded at the enquiries fairly conducted were binding on the parties, unless it was known that the said Page 20 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined findings were perverse, or were not based on any evidence. We are not able to agree with the Labour Court in this case that the findings of the domestic enquiry are either perverse or not based on any evidence.
8. We therefore come to the conclusion that there was no failure on the part of the Enquiry Officer to give a reasonable opportunity to the respondent workman, that the enquiry was fair and the Labour Court had. therefore no right to examine the witness on behalf of the workman and based on that evidence to upset the finding arrived at the domestic enquiry .We also hold that the punishment imposed in the circumstances is one in which the Labour Court cannot interfere. The result is that the appeal will have to be allowed and the award ,of the Labour Court set aside."
13. In the case of Manojkumar M.Kishori Vs. Gujarat State Road Transport Corporation reported in 2016 (2) CLR 753, this Court has held and observed in para - 30, 31, 32 and 33 as under:-
"30. It is also appropriate and relevant to refer and take into account the observation by Hon'ble Apex Court in the case of U.P.State Road Transport Corporation Vs. Suresh Chand Sharma (Supra), where the Hon'ble Apex Court observed that "13. The Labour Court recorded a finding of fact that in respect of both the mis-conducts the passengers were found travelling without tickets and they had already paid fare to the employee/Conductor. Thus, it is not a case where the said employee could not issue the ticket and recover the fare from the travelling passengers, rather the finding has been recorded that after recovering the fare from the passengers, he did not issue tickets to them. Thus, there was an intention to mis-appropriate the fare recovered from the passengers who were found travelling Page 21 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined without tickets at both the times.
14. The High Court dealt with the matter in a most cryptic manner. Relevant/main part of the judgment of the High Court reads as under:
"5...The Inspector in the cross-examination has also stated on oath that the cash was not checked. The learned counsel for the petitioner further submitted that when the bus was checked, ten passengers were boarded on the bus and they were drunk and they were also denying taking the tickets. The learned Tribunal has not considered this fact at all. I find force in the contention of the learned counsel for the petitioner. The learned Tribunal ought to have considered this fact that neither the passengers were examined, nor the cash was checked. Therefore, the order of the learned Tribunal cannot be sustained in the eye of law."
(Emphasis added)
15. The High Court has decided the Writ Petition only on the ground that the passengers found without tickets, had not been examined and the cash with the employee was not checked. No other reasoning has been given whatsoever by the Court.
16. In State of Haryana & Anr. Vs. Rattan Singh AIR 1977 SC 1512, this Court has categorically held that in a domestic enquiry, complicated principles and procedure laid down in the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872 do not apply. The only right of a delinquent employee is that he must be informed as to what are the charges against him and he must be given full opportunity to defend himself on the said charges. However, the Court rejected the contention that enquiry report stood vitiated for not recording the statement of the passengers who were found travelling without ticket. The Court held as under:
"5... We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the reevaluation of the evidence on the strength of coconductor's testimony is a matter not for the court but for the administrative tribunal. In conclusion, we do not think courts below were right in over-turning the finding of the domestic tribunal."Page 22 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024
NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined
17. In view of the above, the reasoning so given by the High Court cannot be sustained in the eye of law. More so, the High Court is under an obligation to give not only the reasons but cogent reasons while reversing the findings of fact recorded by a domestic tribunal. In case the judgment and order of the High Court is found not duly supported by reasons, the judgment itself stands vitiated. (Vide State of Maharashtra Vs. Vithal Rao Pritirao Chawan, AIR 1982 SC 1215; State of U.P. Vs. Battan & Ors. (2001) 10 SCC 607); Raj Kishore Jha Vs. State of Bihar & Ors. AIR 2003 SC 4664; and State of Orissa Vs. Dhaniram Luhar AIR 2004 SC 1794.
18. In State of West Bengal Vs. Atul Krishna Shaw & Anr. AIR 1990 SC 2205, this Court observed that (SCC P.421 P.7) "7... Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review."
In State of Uttaranchal & Anr. Vs. Sunil Kumar Singh Negi AIR 2008 SC 2026, this Court held as under (SCC P. 208 para 11):
"11. '8 Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made".
19. In Raj Kishore Jha (supra), this Court observed as under
(SCC p.527 Para 19):
"19.Before we part with the case, we feel it necessary to indicate that non-reasoned conclusions by appellate Courts are not appropriate, more so, when views of the lower Court are differed from. In case of concurrence, the need to again repeat reasons may not be there. It is not so in case of reversal. Reason is the heartbeat of every conclusion. Without the same, it becomes lifeless".
In fact:
"47....reasons are the links between the material, the Page 23 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined foundation for these erection and the actual conclusions. They would also administer how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusion reached".
(Vide Krishna Swami V. Union of India SCC P.637 para 47)
20. Therefore, the law on the issue can be summarized to the effect that, while deciding the case, court is under an obligation to record reasons, however, brief, the same may be as it is a requirement of principles of natural justice. Non-observance of the said principle would vitiate the judicial order. Thus, in view of the above, the judgment and order of the High Court impugned herein is liable to be set aside.
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 misappropriate the public money.
22. In Municipal Committee, Bahadurgarh Vs. Krishnan Bihari & Ors., SCC P.715 Para 4, 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 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 Page 24 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined 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."
31. In this background the situation, which emerges in the present case is as under:
(a) Inquiry is found to be legal fair.
(b) The learned Labour Court has also found that findings of the Inquiry Officer are just, correct and legal and they are not perverse.
(c) The allegations against the petitioner are of misappropriation of the amount/tickets fair inasmuch as according to the charge-sheet, the petitioner received the amount towards the ticket fair, but did not issue ticket to four passengers. Such allegations/charge of misappropriation is of serious and grave nature.
(d) Past record of the petitioner reflects total 16 defaults out of which 12 defaults are in respect of the misconduct of similar nature.
(e) The statements of two passengers recorded by the squad bring out that the passengers mentioned in their statements asserted that they had paid fair but tickets were not issued.
(f) Besides other material and evidence, the clinching evidence is the petitioner's statement where the petitioner himself admitted that he had received the amount, but not issued tickets. In his statement, the petitioner also accepted that the statements of the passengers were recorded in his presence.
32. In view of the said details and facts, the petitioner's contention that since cash bag was not checked the findings should be aside, cannot be sustained.
33. Now, so far as above charge is concerned, it is to be noted that the learned Labour Court has taken into account and discussed above mentioned aspect including past service record of the petitioner, the statements of the passengers and the learned Labour Court has also taken into account the fact that the bus was checked after it had Page 25 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined travelled for about 50 to 60 Kms. from Ahmedabad i.e. starting destination and therefore, there was no justification for not issuing tickets after receiving the amount/fair. Having considered all aspects, the learned Labour Court reached to the conclusion that the penalty imposed by the Disciplinary Authority is just and proper and commensurate with proved misconduct. The learned Labour Court reached to the conclusion that there was no justification to interfere with the order of the Authorities. Consequently, the learned Labour Court dismissed the Reference."
14. In the case of U.P. State Road Transport Corporation Vs. Suresh Chand Sharma reported in (2010) 6 SCC 555, the Hon'ble Supreme Court has held and observed in para 14 to 20 and 23 and 24 as under:-
"14. The High Court dealt with the matter in a most cryptic manner. Relevant/main part of the judgment of the High court reads as under:
"5. . . . . The Inspector in the cross-examination has also stated on oath that the cash was not checked. The learned counsel for the petitioner further submitted that when the bus was checked, ten passengers were boarded on the bus and they were drunk and they were also denying taking the tickets. The learned Tribunal has not considered this fact at all. I find force in the contention of the learned counsel for the petitioner. The learned Tribunal ought to have considered this fact that neither the passengers were examined, nor the cash was checked. Therefore, the order of the learned Tribunal cannot be sustained in the eye of law."(Emphasis added)
15. The High Court has decided the Writ Petition only on the ground that the passengers found without tickets, had not been examined and the cash with the employee was checked. No other reasoning has been given whatsoever Page 26 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined by the Court.
16. In State of Haryana and Anr. Vs. Rattan Singh AIR 1977 sc 1512, this Court has categorically held that in a domestic enquiry, complicated principles and procedure laid down in the Code of Civil Procedure, 1908 and the Indian Evidence act, 1872 do not apply. The only right of a delinquent employee is that he must be informed as to what are the charges against him and he must be given full opportunity to defend himself on the said charges. However, the Court rejected the contention that enquiry report stood vitiated for not recording the statement of the passengers who were found travelling without ticket. The Court held as under:
"we cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the re-evaluation of the evidence on the strength of co-conductor's testimony is a matter not for the court but for the administrative tribunal. In conclusion, we do not think courts below were right in over-turning the finding of the domestic tribunal. "
17. In view of the above, the reasoning so given by the High court cannot be sustained in the eye of law. More so, the High court is under an obligation to give not only the reasons but cogent reasons while reversing the findings of fact recorded by a domestic tribunal. In case the judgment and order of the high Court is found not duly supported by reasons, the judgment itself stands vitiated. (Vide State of Maharashtra vs. Vithal Rao Pritirao Chawan, AIR 1982 SC 1215; State of u. P. Vs. Battan and Ors. (2001) 10 SCC
607); Raj Kishore Jha vs. State of Bihar and Ors. AIR 2003 SC 4664; and State of orissa Vs. Dhaniram Luhar AIR 2004 SC 1794.
18. In State of West Bengal Vs. Atul Krishna Shaw and Anr. AIR 1990 SC 2205, this Court observed that "giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review. "
19. In State of Uttaranchal and Anr. Vs. Sunil Kumar Singh negi AIR 2008 SC 2026, this Court held as under:
"right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an Page 27 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made".
20. In Raj Kishore Jha (supra), this Court observed as under:
"before we part with the case, we feel it necessary to indicate that non-reasoned conclusions by appellate courts are not appropriate, more so, when views of the lower Court are differed from. In case of concurrence, the need to again repeat reasons may not be there. It is not so in case of reversal. Reason is the heartbeat of every conclusion. Without the same, it becomes lifeless".
21. 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.
22. 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."
15. In the case of Uttar Pradesh State Road Transport Corporation Vs. Gajadhar Nath reported in (2022) 3 SCC 190, the Hon'ble Supreme Court has held and observed in para -
4 to 11 as under:-
"4. The scope of an adjudicator under the Industrial Disputes Act, 19474 may be noticed. The domestic inquiry conducted can be permitted to be disputed before the Page 28 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined Tribunal in terms of Section 11A of the Act. This Court in a judgment reported as Workmen of M/s Firestone Tyre and Rubber Co. of India (P.) Ltd. v. Management & Ors., (1973) 1 SCC 813 held that in terms of Section 11A of the Act, if a domestic inquiry has been held and finding of misconduct is recorded, the authorities under the Act have full power and jurisdiction to reappraise the evidence and to satisfy themselves whether the evidence justifies the finding of misconduct. But where the inquiry is found to be defective, the employer can lead evidence to prove misconduct before the authority. This Court held as under:
"32. From those decisions, the following principles broadly emerge :-
(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
(5) The effect of an employer not holding an enquiry is that Page 29 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate v. The Workmen, 1971-1 SCC 742 within the judicial decision of a Labour Court or Tribunal."
5. The question as to whether the employer is required to seek liberty to prove misconduct in the written statement Page 30 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined or could lead evidence at a later stage was considered by a Constitution Bench of this Court in a judgment reported as Karnataka State Road Transport Corporation v. Smt. Lakshmidevamma & Anr., AIR 2001 SC 2090. Therein this Court was examining a conflict, if any, between two judgments reported Shambhu Nath Goyal v. Bank of Baroda & Ors., (1983) 4 SCC 491 and Rajendra Jha v. Presiding Officer, Labour Court, Bokaro Steel City, District Dhanbad & Anr., 1984 Supp. SCC 520. The majority opinion of the Court noticed that the right of a management to lead evidence before the Labour Court or the Industrial Tribunal in justification of its decision under consideration by such Tribunal or Court is not a statutory right. This is actually a procedure laid down by this Court to avoid delay and multiplicity of proceedings in the disposal of disputes between the management and the workman.
"17. Keeping in mind the object of providing an opportunity to the management to adduce evidence before the Tribunal/Labour Court, we are of the opinion that the directions issued by this court in Shambhu Nath Goyal's case need not be varied, being just and fair. There can be no complaint from the management side for this procedure because this opportunity of leading evidence is being sought by the management only as an alternative plea and not as an admission of illegality in its domestic inquiry. At the same time, it is also of advantage to the workmen inasmuch as they will be put to notice of the fact that the management is likely to adduce fresh evidence, hence, they can keep their rebuttal or other evidence ready. This procedure also eliminates the likely delay in permitting the management to make belated application whereby the proceedings before the Labour Court/Tribunal could get prolonged. In our opinion, the procedure laid down in Shambhu Nath Goyal's case is just and fair.
18. There is one other reason why we should accept the procedure laid down by this Court in Shambhu Nath Goyal's case. It is to be noted that this judgment was delivered on 27th of September, 1983. It has taken note of almost all the earlier judgments of this Court and has laid down the procedure for exercising the right of leading evidence by the management which we have held is neither oppressive nor contrary to the object and scheme of the Act. This judgment having held the field for nearly 18 years, in our opinion, the doctrine of stare decisis require us to approve the said judgment to see that a long-Page 31 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024
NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined standing decision is not unsettled without strong cause."
6. Now on merits, keeping in view the principles of law, learned counsel for the appellants-employer contended that the Indian Evidence Act, 18729 applies to all judicial proceedings in or before any Court. Since the domestic inquiry is not by a Court, therefore, strict rules of the Evidence Act are not applicable to such domestic inquiry. Reliance is placed upon a three-Judge Bench of this Court reported as State of Haryana & Anr. v. Rattan Singh, (1977) 2 SCC 491 wherein in respect of a conductor who was found to have not issued tickets, this Court held as under:
"4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence - not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any Page 32 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground."
7. In a judgment reported as U.P. State Road Transport Corporation v. Suresh Chand Sharma, (2010) 6 SCC 555 this Court set aside the order of the High Court wherein the writ petition was allowed holding that the passengers without tickets have not been examined and cash with the employee was not checked. This Court relied upon the judgment of this Court in Rattan Singh and found that the punishment of dismissal from service was not disproportionate to the proved delinquency of the employee.
8. The Division Bench of the Allahabad High Court to which the learned Single Bench was bound in a judgment reported as U.P. State Road Transport Corporation through M.D. & Ors. v. Rajendra Prasad, 2019 SCC OnLine All 5152 allowed the appeal of the employer wherein the Tribunal returned a finding that 16 passengers who were without tickets at the time of inspection were not examined. Therefore, the punishment order was set aside being in contravention of the principles of natural justice. The Division Bench of the High Court held as under:
"24. In view of the above, we find no substance in the argument raised by the learned counsel for the claimant/respondent to the effect that the passengers were required to be examined during enquiry and accordingly, we hold that the finding with regard to examination of passengers given by the Tribunal is perverse being contrary to the Law and being so is unsustainable. It is also for the reason that the enquiry officer after examining the witnesses including claimant/respondent held that the charge levelled against the claimant/respondent found proved.
xx xx xx
37. Further, in the present case, claimant/respondent- Rajendra Prasad is a conductor of the bus and he was entrusted with the duty to collect the ticket from the Page 33 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined passengers travelling in the bus and deposit the same with the Corporation however in the present case, from the material on record, the position which emerges out is to the effect that he collected the fair from 16 passengers/persons but did not deposit the same."
9. On the other hand, learned counsel for the respondent- workman argued that the statement of the Inspector does not inspire confidence as he had not recorded the names and addresses of the passengers. It is not the case of the workman that the passengers were required to be examined but at least there should have been some evidence that there were passengers who were found travelling without any ticket. Since the basic evidence is not available on record, therefore, the finding of the Tribunal cannot be said to be illegal or unwarranted which was rightly not interfered with by the High Court.
10. We find that the order of the Tribunal and that of the High Court are clearly erroneous and not sustainable in law. The representative of the employer has not been cross-examined on the question that he has not inspected the bus on 12.11.1998. He has deposed that when he tried to record the statements of the passengers, the conductor misbehaved with him and used unruly words. Even that part of the statement has not been disputed in the crossexamination. Therefore, the fact that the Inspector was not able to record the names and addresses of the passengers cannot be said to be unjustified. Since the passengers are low-fare paying passengers, they might have been hesitant to get involved in the issues of any action against the conductor. The Inspector had found that 17 passengers were not issued tickets and such statement of the Inspector has also not been disputed in the crossexamination. The Tribunal or the High Court could not reject the evidence led by the employer in respect of misconduct of the workman before the adjudicator. Still further non lodging of FIR cannot be the circumstance against the witness examined by the employer. The initiation of criminal proceedings against an employee or not initiating the proceedings has no bearing to prove misconduct in departmental proceedings.
11. Therefore, we find that the order of removal from service cannot be said to be unfair and unjust in any manner which would warrant an interference at the hands of the Tribunal and the High Court. The three reasons Page 34 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined recorded by the Tribunal are absolutely perverse and not supported by any evidence. The Tribunal had misapplied the basic principles of law and the High Court has thereafter wrongly confirmed the order."
16. In the case of Rajasthan State Road Transport Corportion Vs. Bajrang Lal reported in (2014) 4 SCC 693, the Hon'ble Supreme Court has held and observed in para - 18 to 21 as under:-
"18. The appellate court committed a grave error by declaring the enquiry as non-est. The termination order as a consequence thereof, stood vitiated though there is no reference to any material fact on the basis of which such a conclusion was reached. The finding that copy of the documents was not supplied to the respondent/plaintiff, though there is nothing on record to show that how the documents were relied upon and how they were relevant to the controversy involved, whether those documents had been relied upon by the enquiry officer and how any prejudice had been caused by non-supply of those documents, is therefore without any basis or evidence. When the matter reached the High Court in Second Appeal, the High Court refused to examine the issue at all by merely observing that no substantial question of law was involved and the findings of fact, however erroneous, cannot be disturbed in Second Appeal.
19. With all respect, we do not agree with such a conclusion reached by the High Court, as Second Appeal, in exceptional circumstances, can be entertained on pure questions of fact. There is no prohibition for the High Court to entertain the Second Appeal even on question of fact where factual findings are found to be perverse.
20. In Ibrahim Uddin (Supra), this Court held:
"65. In Suwalal Chhogalal V/s. CIT, (1949) 17 ITR 269 (Nag) the Court held as under: (ITR p. 277) Page 35 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined "A fact is a fact irrespective of evidence by which it is proved. The only time a question of law can arise in such a case is when it is alleged that there is no material on which the conclusion can be based or no sufficient material.
67. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non- consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse. [Vide Jagdish Singh V/s. Natthu Singh, AIR 1992 SC 1604, Prativa Devi V/s. T.V. Krishnan, (1999) 5 SCC 353, Satya Gupta V/s. Brijesh Kumar, (1998) 6 SCC 423, Ragavendra Kumar V/s. Firm Prem Machinery & Co., AIR 2000 SC 534, Molar Mal V/s. Kay Iron Works (P) Ltd., AIR 2000 SC 1261, Bharatha Matha V/s. R. Vijaya Renganathan, (2010) 11 SCC 483 and Dinesh Kumar V/s. Yusuf Ali, (2010 12 SCC 740]
68. In Jai Singh V/s. Shakuntala, AIR 2002 SC 1428, this Court held that (SCC p. 638, para 6) it is permissible to interfere even on question of fact but it may be only in "very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible-it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection". Similar view has been taken in Kashmir Singh V/s. Harnam Singh, AIR 2008 SC 1749."
21. As regards the question of disproportionate punishment is concerned, the issue is no more res-integra. In U.P State Road Transport Corporation V/s. Suresh Chand Sharma, (2010) 6 SCC 555, it was held as under:
"22. In Municipal Committee, Bahadurgarh V/s. Krishnan Behari, AIR 1996 SC 1249 this Court held as under: (SCC p. 715, para 4) "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."
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330."
17. In the case of Divisional Controller, Karnataka State Road Transport Corporation Vs. M.G.Vittal Rao reported in (2012) 1 SCC 442 wherein the Hon'ble Supreme Court has held and observed in para - 31 as under:-
"31. The instant case requires to be examined in the light of the aforesaid settled legal proposition and keeping in view that judicial review is concerned primarily with the decision making process and not the decision itself. More so, it is a settled legal proposition that in a case of misconduct of grave nature like corruption, theft, no punishment other than the dismissal may be appropriate. (Vide: Pandiyan Roadways Corpn. Ltd. (supra); and U.P. State Road Transport Corporation V/s. Suresh Chand Sharma, (2010) 6 SCC 555)."
18. In the case of Karnataka State Road Transport Corporation Vs. B. S. Hullikath reported in (2001) 2 SCC 574, the Hon'ble Supreme Court has held and observed in para -
6 and 7 as under:-
"6. It is misplaced sympathy by the labour courts in such cases when on checking, it is found that the bus Page 37 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower denomination knowing fully well the correct fare to be charged. It is the responsibility of the bus conductors to collect the correct fare from the passengers and deposit the same with the Company. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare.
7. In our opinion, the order of dismissal should not have been set aside, but we are informed that in the meantime the respondent has already superannuated. We, therefore, on the special facts of this case, do not set aside the order of reinstatement, but direct that the respondent would not be entitled to any back wages at all but he would be entitled to the retiral benefits."
19. In the case of Divisional Controller, N.E.K.R.T.C. Vs. H. Amaresh reported in (2006) 6 SCC 187, the Hon'ble Supreme Court has held and observed in para - 18, 19 and 20 as under:-
"18. In the instant case, the mis-appropriation of the funds by the delinquent employee was only Rs. 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who mis- appropriated funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence as the primary factor and not the amount of money mis-appropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of mis-appropriating a Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka State Road Transport Corpn. V/s. B.S. Hullikatti, 2001 2 SCC 574 was also relied on in this judgment among others. Examination Page 38 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined of passengers of vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a mis-conduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum.
19. In this context, it is useful to refer to the findings of the domestic tribunal which has already been extracted above in paragraph (supra). Before the Inquiry Officer Exh. M1-M4 were marked, which have not been refuted nor was the veracity of witness decided. The Inquiry Officer has stated that he has carefully examined the evidence of MW.1 and the documents marked which fully reveals that the delinquent has committed not only misconduct but misappropriated the cash. MW 1 was not cross examined by the delinquent employee. In reply, the delinquent has simply denied the charges stating it baseless. The Inquiry Officer, on a careful consideration of all aspects of the case, unhesitantly held that the delinquent was guilty of the charges and that all the charges have been proved.
20. Once a domestic Tribunal based on evidence comes to a particular conclusion normally it is not open to the tribunal and courts to substitute their subjective opinion in place of the one arrived at by the domestic tribunal."
20. In the case of Bharat Heavy Electricals Ltd Vs. M. Chandrasekhar Reddy reported in (2005) 2 SCC 481, wherein the Hon'ble Supreme Court has held and observed in para 11, 15, 18, 20 and 26 as under:-
Page 39 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined "11. Question then is whether the misconduct alleged against is so serious or grave as to create a genuine lack of confidence in respondent by the appellant.
15. The Labour Court while exercising its discretion recorded that though the confidence of the employer on the respondent is shaken still it gave 3 reasons for exercising its discretion, they are :-
(A) No instance of earlier misconduct are spelt.
(B) It appears the respondent is an active participant in the cultural activities and for common cause of the employees.
(C) Therefore, it felt the punishment of dismissal from service is harsh, in the facts and circumstances of the case.
18. In our opinion with no stretch of imagination either the extenuating circumstances recorded by the Labour Court or the exercise of its discretion could be termed either as reasonable or judicious. In our opinion even the learned Single Judge and the Division Bench erroneously held that the Labour Court had unlimited jurisdiction u/s. 11A of the Act. It is because of the above erroneous legal foundation as to the vastness of power vested with the Labour Court, the High Court accepted the interference by the Labour Court in the award of punishment. Thus, the Labour Court as well as the High Court fell in error in granting the relief to the respondent which is challenged in this petition.
20. In Francis Klein & Company Private Ltd. (supra) this Court held :-
"...In our view when an employer loses confidence in his employee, particularly in respect of a person who is discharging an office of trust and confidence, there can be no justification for directing his reinstatement."
..Even this direction is not a valid direction because if once the company has lost confidence in its employee, it is idle to ask them to employ such a person in another job. What job can there be in a company which a person can be entrusted with and which does not entail reposing of confidence in that person.."
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26. That apart the reasons given by the Labour Court to reduce the penalty are reasons which are not sufficient for the purpose of reducing the sentence by using its discretionary power. The fact that the misconduct now alleged is the first misconduct again is no ground to condone the misconduct. On the facts of this case as recorded by the Labour Court the loss of confidence is imminent, no finding has been given by the courts below including Labour Court that either the fact of loss of confidence or the quantum of punishment is so harsh as to be vindictive or shockingly disproportionate. Without such finding based on records interference with the award of punishment in a domestic inquiry is impermissible."
21. In the case of Gujarat State Road Transport Corporation Vs. Ibrahimbhai Validam Patel reported in 2023 LawSuit (Guj) 2125, this Court has held and observed in para - 4 as under:-
"[4] Learned advocate Mr. H.S. Munshaw for the petitioner submitted that the Labour Court could not have quashed and set aside the order of punishment imposed under section 11A of the Industrial Disputes Act, 1947 (For short "the ID Act") whereby service of the respondent was terminated. It was submitted that the Labour Court could have considered the disproportionality of the punishment by substituting the order of punishment and instead of termination, any lesser punishment of stoppage of increment with future effect could have been imposed in the facts of the case.
4.1) It was submitted that it is not disputed by the respondent workman that tickets were not issued to the passengers till their destination arrived. It was therefore, pointed out that in such circumstances, when the Labour Court has found that the punishment was disproportionate to the charges levelled against the Page 41 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined respondent workman, the same ought to have been substituted.
4.2) It was also submitted that the inquiry officer after conducting the inquiry has found the charges levelled against the respondent as proved and therefore, the Labour Court could not have interfered in the findings arrived at by the inquiry officer.
4.3) It was submitted that during the course of inspection it was found that the respondent did not issue the tickets to two passengers though amount of fare was collected. It was therefore, submitted that the Labour Court ought to have passed an order of substitution of punishment instead of quashing and setting aside the order of punishment while exercising powers under section 11A of the ID Act.
4.4) In support of his submission, reliance was placed on decision in case of U.P. State Transport Corporation v. Vinod Kumar, 2008 1 SCC 115, wherein it is held as under:
"10.As stated in the preceding paragraphs, the respondent had confined his case only to the conclusions reached by the Enquiry Officer as well as the quantum of punishment. Therefore, since the respondent had not challenged the correctness, legality or validity of the enquiry conducted, it was not open to the Labour Court to go into the findings recorded by the Enquiry Officer regarding the misconduct committed by the respondent. This Court in a number of judgments has held that the punishment of removal/dismissal is the appropriate punishment for an employee found guilty of misappropriation of funds; and the Courts should be reluctant to reduce the punishment on misplaced sympathy for a workman. That, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment. Without burdening the judgment with all the judgments of this Court on this point, we may only refer to a recent judgment in Divisional Controller, N.E.K.R.T.C. V/s. H. Amaresh, 2006 6 SCC 187, wherein this Court, after taking into account the earlier decisions, held in para 18 Page 42 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined as under:-
"In the instant case, the misappropriation of the funds by the delinquent employee was only Rs. 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who mis-appropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of mis-appropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka State Road Transport Corporation V/s. B.S. Hullikatti, 2001 2 SCC 574 was also relied on in this judgment among others. Examination of the passengers of the vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a mis- conduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum."
[Underlining is ours]
11.Respectfully agreeing and following the aforesaid decision of this Court, we accept this appeal and set aside the judgment of the High Court as well as the order passed by the Labour Court. Consequently, the order passed by the Punishing Authority dismissing/removing the respondent from service is restored. No costs."
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22. Considering the facts of the case as well as submissions made by learned counsel for the respective parties, it appears that the Labour Court while exercising powers under section 11A of the ID Act has quashed and set aside order of punishment imposed by the employer after conducting the departmental inquiry in accordance with law without there being any justifiable reason instead of substituting the punishment as the Labour Court has found that the quantum of punishment is disproportionate to the charges which are proved during the course of departmental inquiry. Under such circumstances, the impugned award passed by the Labour Court is absolutely illegal, unjust and perverse. Though in 1995, the Conciliation Officer has granted approval of the action of the employer, the Labour Court has not considered said fact, while passing the impugned award below Exhibit 68, however, it has to consider the fact that the impugned inquiry is perverse and, therefore, the inquiry held to be illegal and consequences thereof the order of dismissal was quashed and set aside and directed the employer to reinstate the workman in service with 25% back wages. At this juncture, it is required to be noted that since the employee already Page 44 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined reached at the age of superannuation and, therefore, there is no question of reinstatement in service and so far as the order of dismissal is concerned, before that the workman was paid all his retiral dues and, therefore the same is not required to be recovered now by initiating any recovery proceedings. So far as other and further consequential benefits are concerned, the same are not required to be extended in favour of the workman.
23. Considering the aforesaid facts and the decisions of the Hon'ble Supreme Court and perusing the impugned award, it appears that the Labour Court has committed an error while passing the impugned order and, therefore, interference is required to be called for. Hence, Special Civil Application No. 11540 of 2015 filed by the employer deserves to be allowed and Special Civil Application No. 56 of 2017 filed by the workman deserves to be dismissed.
24. In the result, Special Civil Application No. 11540 of 2015 filed by the employer is allowed. The impugned award dated 17.07.2014 passed by the Labour Court, Surendranagar in Page 45 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024 NEUTRAL CITATION C/SCA/11540/2015 JUDGMENT DATED: 13/09/2024 undefined Reference (I.T.) No. 7 of 2011 and the order dated 03.12.2013 on exhibit 63 passed by the Labour Court, Surendranagar are hereby quashed and set aside. Though the retiral benefits has already been paid to the workman, the same shall not be recovered by initiating any recovery proceedings. There shall be no order as to costs.
Special Civil Application No. 56 of 2017 filed by the workman is dismissed. Rule is discharged. Interim relief, if any, granted earlier shall stand vacated forthwith. There shall be no order as to costs.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 46 of 46 Uploaded by V.R. PANCHAL(HC00171) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:59:12 IST 2024