Gujarat High Court
Dharmendra vs Managing on 25 March, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/3877/2011 14/ 14 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3877 of 2011
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DHARMENDRA
PRATAPSINH BARAD - Petitioner(s)
Versus
MANAGING
DIRECTOR & 1 - Respondent(s)
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Appearance
:
MR
MAHENDRA U VORA for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 25/03/2011
ORAL
ORDER
Heard learned Advocate Mr. Mahendra U. Vora for petitioner workman.
In this petition, petitioner has challenged award passed by Labour Court, Amreli in Reference (LCA) No. 6 of 2008 dated 25/11/2010 wherein labour court has dismissed reference on merits.
Learned Advocate Mr. Vora for petitioner has submitted that labour court has committed gross error in rejecting reference without appreciating merits of matter. He also submitted that finding given by labour court that misconduct is proved in departmental inquiry is perverse finding given by labour court. He also submitted that labour court has committed gross error in not exercising power under section 11-A of ID Act, 1947 in favour of petitioner. In short, his submission is that if petitioner is ordered to be reinstated in service, then, petitioner is not claiming any back wages for interim period. Except that, no other submission is made by learned advocate Mr.Vora on behalf of petitioner.
I have considered submissions made by learned advocate Mr. Vora on behalf of petitioner. I have also perused award made by labour court which is under challenge in this petition.
Petitioner workman was working with respondent Corporation since four years as Conductor. Petitioner was dismissed from service on 29th August, 2004. His last drawn salary was Rs.2550.00. It is case of petitioner that on 11.8.2001, while he was on duty on route Rajkot-Bagasara, his bus was checked by checking staff and allegations have been made against petitioner that he re-issued tickets to certain passengers and recovered amount of fare from passengers. This misconduct committed by petitioner has been admitted in spot statement given by petitioner before checking inspector dated 11th August, 2001. Statement of claim was filed by workman before labour court at Exh. 4 and on behalf of respondent Corporation, written statement was filed vide Exh. 7 denying averments made in statement of claim by petitioner. Before labour court, vide Exh. 13, affidavit for oral evidence was filed by workman. Then, vide Exh. 15, purshis under section 11-A of ID Act, 1947 was filed by workman. On behalf of Corporation, vide Exh. 16 to Exh. 58, documentary evidence has been produced on record which has been exhibited before labour court wherein Exh. 16 is checking report dated 11.8.2001, Exh. 17 is copy of statement dated 11.8.2001 given by petitioner in writing, Exh. 18 to 21 are copies of statements of passengers, Exh. 22 is copy of window booking route, Exh. 24 is copy of way bill, Exh. 25 is copy of statement given to petitioner, Exh. 26 is copy of charge-sheet issued to petitioner, Exh. 27 is copy of intimation given to petitioner for hearing, Exh. 28 is copy of application for adjournment demanded by petitioner, Exh. 29 is copy of letter giving intimation of adjournment to petitioner. Exh. 30 and 31 are copies of letter of petitioner demanding adjournment, Exh. 32 to 35 are copies of letter intimating petitioner about date of hearing during departmental inquiry. Exh. 37 is copy of reply asked to petitioner in respect to charge and Exh. 38 and 39 are copies of proceedings of departmental inquiry. Exh. 40 to 44 are copies of letter intimating petitioner about date of hearing in departmental inquiry. Exh. 45 is copy of notice served to petitioner. Exh. 46 is copy of letter written by petitioner. Exh. 47 is finding regarding dismissal given at the end of departmental inquiry. Exh. 48 is order of dismissal. Exh. 49 is panchanama dated 29.9.2004. Exh. 50 is certificate of letter sent to petitioner by way of UPC. Exh. 51 is copy of report of transmission. Exh. 52 is copy of statement showing amount given to petitioner. Exh.53 is copy of first appeal preferred by petitioner. Exh. 54 is copy of order passed in first appeal. Exh. 55 is copy of second appeal preferred by petitioner. Exh. 56 is copy of order dismissing second appeal. Exh. 57 is receipt of letter by applicant. Exh. 58 is past default card of petitioner.
Before labour court, advocate for petitioner has admitted that there is charge of misappropriation of small amount of Rs.105.00 and for such a small amount, punishment of dismissal is harsh and, therefore, prayer was made for reinstating petitioner while exercising powers under section 11-A of ID Act, 1947. Advocate for Corporation has submitted before labour court that serious misconduct of misappropriation has been committed by petitioner which has been found to be proved in departmental inquiry and finding given by inquiry officer cannot be considered to be baseless and perverse. The legality and validity of departmental inquiry has been admitted by workman vide purshis Exh. 15 and considering spot statement of conductor Exh. 17, which has been considered by labour court where misconduct has been admitted by workman to re-issue tickets to passengers and collect fare from passengers and on that basis, dishonesty/misappropriation is found to be proved against workman and finding given by inquiry officer is also found to be legal and valid. Question of punishment has also been considered by labour court while exercising powers under section 11-A of ID Act, 1947 and labour court has come to conclusion that in such serious misconduct of dishonesty and misappropriation of funds of corporation, powers under section 11-A, cannot be exercised in favour of petitioner, otherwise, it amounts to giving premium to workman who has committed serious misconduct of dishonesty and misappropriation and post of conductor is considered to be post of confidence, in such case, when revenue of corporation has been misappropriated by conductor, such conductor has lost confidence of corporation and it was also affecting revenue of corporation and on that basis, labour court has thought it fit not to interfere with punishment of dismissal because looking to gravity of misconduct, punishment of dismissal is considered to be proportionate and found adequate.
This court has considered similar question in Special Civil Application NO. 623 of 2011 and in such case, no interference is required when theft alleged against workman has been found to be proved. In case of allegation of misappropriation of amount of corporation, apex court has in number of cases come to conclusion that no interference is required. This aspect has been examined in detail by this court on 4.3.2011 in Special Civil Application No. 623 of 2011. Para 10 to 16 of said judgment are quoted as under:
"10. I have considered submissions made by both learned advocates and I have also perused award passed by Labour Court, Bharuch. In present case, Labour Court has rightly come to conclusion relying upon decision of Apex Court in case of Manager, Reserve Bank of India, Bangalore Vs. S. Mani reported in 2005 (2) LLJ 258 that in case of acquittal in similar charge, workman is not entitled matter of right of reinstatement in service. Similar decision of Apex Court is also considered by Labour Court in case of Union of India Vs. Biharilal Sidha reported in 1997 (4) SCC 385, where also Apex Court has come to conclusion and held that in case of criminal acquittal in identical charge workman is not entitled relief of reinstatement and it is upon management to decide whether departmental inquiry is to be initiated on similar and same charge or not? Therefore, contention raised by workman that because of acquittal in criminal case, workman is entitled relief of reinstatement and order of dismissal is to be set aside can not be accepted which has been rightly rejected by Labour Court. The theft of property of respondent Company about Rs. 24,000/- Netlon has been committed which found to be serious misconduct and on that basis workman was dismissed from service. Therefore, Labour Court has considered decision of Apex Court in case of A.P.S.R.T.C. Vs. B. Swami reported in 2007 LLR 752.
The relevant observation is as under:
"....The conductor performs only the duty of issuing tickets to the passengers and accounting for the fare collected from the Passengers to the management. If he is dishonest in the performance of his duties, he is guilty of serious misconduct and the gravity of the misconduct can not be minimized by the fact that he was not earlier caught indulging in such dishonest conduct. There is no guarantee that he had not acted dishonestly, in the past as well which went undetected. Even one act of dishonesty amounting breach of faith may invite serious punishment."
11. The Labour Court has also considered another decision of Apex Court in case of U.P.S.R.T.C. Vs. Vinodkumar reported in 2008 LLR 121 and in case of Uttranchal Transport Corporation Vs. Sanjaykumar Navtiyal reported in 2008 LLR 673 as well as considered decision of this Court in case of Jitendra B. Mehta Vs. Manager, Reliance Industries Ltd reported in 2007 LLR
168.
12. The Labour Court has given reasons in support of its conclusion that Labour Court can exercise discretionary powers and jurisdiction to interfere with punishment when Labour Court is satisfied that punishment of dismissal looking to gravity of misconduct is found to be unjustified. The Labour Court is on the contrary come to conclusion that looking to serious misconduct of theft committed by workman and proved it against him, dismissal order can not consider to be unjustified. Therefore, discretionary powers and jurisdiction rightly not exercised in favour of workman by Labour Court. For that, Labour Court has not committed any error which would require interference by this Court.
13. It is also necessary to note that petitioner workman has not challenged order passed by Labour Court on preliminary point exh 47 dated 4/2/2009 where it is held that inquiry conducted against workman is not vitiated and not found contrary to principles of natural justice. The said order has not been challenged by workman to higher forum and once inquiry is to be held legal and valid, second question has been rightly considered by Labour Court, that finding given by Inquiry Officer is baseless or perverse or not? The Labour Court has come to conclusion that workman was remained absent in departmental inquiry intentionally and looking to evidence, which has been recorded by Inquiry Officer and documents produced by Management, conclusion of Inquiry Officer can not consider to be baseless and perverse. Then only question is remained to interfere with punishment in case if looking to gravity of misconduct of dismissal is unjustified or not?
14. It is also necessary to note that workman was not dismissed because of criminal case was filed against him and also not dismissed because of conviction. Therefore, there is no impact or effect of acquittal in criminal case of workman to decision of departmental Authority wherein on the basis of report of Enquiry Officer charged are proved against petitioner.
15. Recently, in case of U.P.S.R.T.C. Vs. Suresh Chand Sharma reported in 2010 (6) SCC 555, Apex Court has considered relevant aspect that in case when Conductor after collecting money from passengers had not issued tickets to them then it amounts to misconduct relating to corruption / misappropriation. The penalty / punishment should always proportionate to gravity of misconduct and in case of corruption and misappropriation, only punishment is found to be proportionate is dismissal. The relevant observation made by Apex Court in para 22 to 24 are quoted as under:
"22. In Municipal Committee, Bahadurgarh Vs. Krishnan behari reported in (1996) 2 SCC 714 : 1996 SCC (L&S) 539 : AIR 1996 SC 1249 this Court held as under : (SSC p. 715, para 4) "4. ...
In a case of such nature - indeed, in cases involving corruption - there can not 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, V. T. B. Kadam reported in (1976) 3 SCC 71 : 1976 SCC (L&S) 381 : AIR 1975 SC 2025, U.P.SRTC Vs. Basudeo Chaudhary reported in (1997) 11 SCC 370 : 1998 SCC (L&S) 155, Janatha Bazar (South Kanara Central Coop. Wholesale Stores Ltd) V. Sahakari Noukarara Sangha reported in (2000) 7 SCC 517 : 2000 SCC (L&S) 962, Karnataka SRTC Vs. B.S. Hullikatti reported in (2001) 2 SCC 574 :
2001 SCC (L&S) 469 : AIR 2001 SC 930 and Rajasthan SRTC Vs. Ghanshyam Sharma reported in (2002) 10 SCC 330 : 2003 SCC (L&S)
714.
23. In NEKRTC Vs. H. Amaresh reported in (2006) 6 SCC 187 : 2006 SCC (L&S) 1290: AIR 2006 SC 2730 and U.P.S.R.T.C. Vs. Vinod Kumar reported in (2008) 1 SCC 115 : (2008) 1 SCC (L&S) 1, this Court 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.
24. 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."
16. In view of aforesaid observation made by Apex Court in number of cases and considering facts which has been found from record as discussed by Labour Court, the contention raised by learned advocate Ms. Chaturvedi can not be accepted. As Single act of corruption or misappropriation is enough for dismissal. (See: 1997 (3) GLR 2380)"
This Court, while exercising powers under Article 227 of Constitution of India, cannot act as an appellate authority and according to my opinion, labour court has rightly not exercised powers under section 11-A of ID Act, 1947 because serious misconduct of dishonesty and misappropriation of funds of corporation has been established against petitioner workman. Therefore, labour court has not committed any error which would require interference of this court. This aspect has been examined by this court in Special Civil Application NO. 623 of 2011 dated 4th March, 2011. Relevant para 17 and 18 of said order are quoted as under:
"17.The Labour Court has not committed any error which would require interference by this Court while exercising power under Article 227 of Constitution of India. This Court is having very limited jurisdiction under Article 227 of Constitution of India and this Court can not act as an Appellate authority.
18. The similar aspect has been considered by Apex Court in two cases;
(i) in case of Jai Singh & Ors. v. Municipal Corporation of Delhi and Anr. With Municipal Corporation of Delhi v. Sh. Jai Singh and Ors., 2010 AIR SCW pg. 5968. Relevant para 25 of said judgment is quoted as under:
"25.
Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of India had been discussed in the case of The Estralla Rubber Vs. Dass Estate (P) Ltd., [(2001) 8 SCC 97] wherein it was observed as follows:
"The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
In our opinion, the High Court committed a serious error of jurisdiction in entertaining the writ petition filed by MCD under Article 227 of the Constitution of India in the peculiar circumstances of this case. The decision to exercise jurisdiction had to be taken in accordance with the accepted norms of care, caution, circumspection. The issue herein only related to a tenancy and subletting. There was no lis relating to the ownership of the land on which the superstructure or the demised premises had been constructed. The whole issue of ownership of plot of land No:2, Block-B, transport area of Jhandewalan Estate, Desh Bandhu Gupta Road, Karol Bagh, New Delhi is the subject matter of a civil suit being Suit No: 361 of 1980 in the High Court of Delhi. The High Court, therefore, ought not to have given any opinion on the question of ownership."
In case of MA Azim v.
Maharashtra State Road Transport Corporation, 2011-I-CLR 283, it has been observed by Bombay High Court as under in para 11 and 12:
"11. At this stage, it would be appropriate to refer to few important judgments of Hon'ble Supreme Court and this Court laying down therein the scope to entertain petition under of Article 226 and 227 of the Constitution of India. The Hon'ble Supreme Court in a case of "Nagendra Nath Bora and Anr. v. Commissioner of Hills Division and Appeals, Assam & Ors., reported in AIR 1958 SC 398" in para No. 30 held thus:-
"30.
the powers of judicial interference under Art. 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the powers under Art. 226 of the Constitution. Under Art. 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Art. 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. "
Yet in another case, in a case of "Surya Dev Rai v. Ram Chander Rai, reported in AIR 2003 SC 3044" the Hon'ble Supreme in its conclusion held :-
(5)Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.(6)
A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.(7)
The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.(8)
The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
And in a case of Babulal S/o. Navalmal Pipada v. Dropadbai W/o.Manohar Gore & Others reported in 2010(5) Mh. LJ, this Court has held thus:
"One cannot be oblivious of the parameters required to be observed for the purpose of exercising supervisory jurisdiction under Article 227 of the Constitution of India.Unless it is demonstrated that the impugned judgment suffers from vice of perversity, arbitrariness or is rendered without considering material evidence or is rendered on the basis of no material interference with the finding of Courts/Tribunals is impermissible. The writ jurisdiction cannot be invoked for reappreciating of the evidence or for the purpose of rectification of minor errors committed by the Tribunals. Unless it is demonstrated that the view taken by the MRT is per se against the settled principles of law, it is difficult to interfere with the findings recorded by the Tribunals below.
12. Therefore, it is clear from the pronouncements of Supreme Court and this Court which are referred supra that the Writ Jurisdiction cannot be invoked for reappreciating the evidence or for the purpose of rectification a minor errors committed by the Tribunals. Supervisory jurisdiction under Article 227 cannot be invoked unless it is demonstrated that the impugned judgments suffers from the vice of perversity, arbitrariness or is rendered without considering material evidence or is rendered on the basis of no material evidence or is rendered on the basis of no material, interference with the findings of Courts/Tribunals is impermissible. Therefore, in light of above, it is relevant to summarized here in below the findings recorded by the Labour Court on the basis of evidence brought on record by the parties.""
In view of fact that this Court is having limited jurisdiction under Article 227 of Constitution of India and considering fact that labour court has rightly examined matter and has rightly given reasons in support of its conclusions, no interference is required by this court in exercise of powers under Article 227 of Constitution of India. Therefore, contentions raised by learned advocate Mr. Vora on behalf of petitioner cannot be accepted. Same are, therefore, rejected.
In result, for reasons recorded above, there is no substance in this petition, hence, this petition is dismissed.
(H.K. Rathod,J.) Vyas Top