Gujarat High Court
Gujarat State Road Transport ... vs Bhikhabhai G Patel on 3 February, 2014
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/5347/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5347 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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GUJARAT STATE ROAD TRANSPORT CORPORATION....Petitioner(s)
Versus
BHIKHABHAI G PATEL....Respondent(s)
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Appearance:
MR HS MUNSHAW, ADVOCATE for the Petitioner(s) No. 1
MR.KRUTARTH K PANDYA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 03/02/2014
ORAL JUDGMENT
Pursuant to the charge of misconduct and a Page 1 of 18 C/SCA/5347/2008 JUDGMENT regular departmental inquiry conducted, the competent disciplinary authority of petitioner Gujarat State Road Transport Corporation imposed punishment of stoppage of one increment with future effect on the respondent workman.
2. The Industrial Tribunal on 29th June, 2007 delivering its judgment and award in Reference (IT) No.289 of 2001, set aside the said penalty and directed the petitioner-Corporation to make good the entire monetary loss to the respondent-workman by paying the difference. It is this judgment and award which is challenged by the petitioner by filing the present petition.
3. The basic facts may be noted. The respondent-workman was employed as Conductor in the Mehsana Depot of Visnagar Division of the petitioner- Corporation. He was served with chargesheet dated 11th February, 1998. The charges levelled against him were inter alia that on 06th January, 1998 he forced a bus, plying between Chanasma to Ladol to drive through the road between Malosana to Ladol, even though the said road was not fit for vehicular traffic and it was not possible for the bus to pass through the said road. It was alleged that at around 1755 hours, the respondent- workman instigated residents of village Malosana, unauthorisedly stopped the bus and misbehaved with the Driver and Conductor of Chanasma Depot and obstructed them in discharge of their duties.
3.1 For the said misconduct of negligence in
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C/SCA/5347/2008 JUDGMENT
duty and causing loss to the Corporation, the workman was departmentally prosecuted. At the end of the inquiry, misconduct against the workman was found to be proved. The competent authority imposed penalty of withholding of an increment for one year with future effect. The first departmental appeal preferred by the workman was dismissed. The workman raised industrial dispute questioning the said penalty before the Industrial Tribunal which Reference culminated into impugned judgment and award.
4. Heard learned advocate Mr.H.S. Munshaw for the petitioner-Corporation and learned advocate Mr.Krutarth K. Pandya for respondent-workman.
5. The incident about commission of misconduct of the workman came to the fore when Surpanch of village complained to the Corporation by addressing letters. The Industrial Tribunal while dealing with the Reference examined the inquiry report, material before the Inquiry Officer and the findings recorded by the Inquiry Officer. The Tribunal found that the Reporter who submitted report about misconduct of the workman, was examined in the inquiry. It was observed that necessary questions were asked to the Reporter. He in course of his evidence produced statements of Driver and Conductor who were on duty of the bus and also two letters of the Surpanch of the Village Malosan in support. Considering evidence of the Reporter along with other supporting material, the charge was held to be established that the Conductor had misbehaved and that there was altercation between Page 3 of 18 C/SCA/5347/2008 JUDGMENT the villagers and workman concerned.
5.1 The report of the Reporter and his evidence duly supported by the above-mentioned statements and the letters constituted adequate evidence, on the basis of which the Inquiry Officer had held that charge against the workman was proved. The Industrial Tribunal erred in its reasoning that as the Reporter was not a witness to the incident, his evidence could not have been accepted. The materials before the Investigating Officer were sufficient to bring home the guilt of the workman.
6. Notably, the workman had given up contention regarding procedural legality and fairness of the inquiry by filing Purshis (Exh.17) before the Industrial Tribunal. As held by the Apex Court in Gujarat State Road Transport Corporation Vs Vinod Kumar [(2008) 1 SCC 115], and also by this Court in Muljibhai Patel Urological Hospital Vs Arunaben [2008 (3) GLR 2656], where the workman challenges only the conclusion raised by the Inquiry Officer and the quantum of punishment, but not the legality of inquiry proceedings, Industrial Tribunal would not be justified in examining the findings of the Inquiry Officer and hold that charge was not proved, except in limited consideration of unfair labour practice, victimisation or on the proportionality of punishment. The first two factors being absent in the present case, punishment which the Tribunal imposed was one of withholding of an increment with future effect. Given the law laid down in Vinod Kumar (supra) by the Apex Page 4 of 18 C/SCA/5347/2008 JUDGMENT Court and Muljibhai Patel Urological Hospital (supra) by this Court, the contention regarding legality of inquiry having been forgone by the workman, going into the findings of the Inquiry Officer by the Industrial Tribunal was manifestly errorsome, unjustified and impermissible in law, in the facts of the case.
7. The penalty with which the Industrial Tribunal tinkered with was other than dismissal or discharge. As noted above, the management of the Corporation imposed punishment of withholding of one yearly increment with future effect. A Division Bench of this Court in Gujarat State Road Transport Corporation Vs Prabhashanker K. Acharya [1992 (2) GLH 354] considered the nature and scope of powers of Labour Court/Industrial Tribunal under Section 11A of the Industrial Disputes Act, 1947. It was observed that Labour Court and/or Industrial Tribunal are conferred with powers under Section 11A of the Act to interfere in the cases specifically of discharge or dismissal only. It was held that Labour Court and/or Industrial Tribunal is not expected to act as an Appellate Authority nor can it casually interfere with the nature and quantum of punishment. The Division Bench observed, "The effect and change in the law by S. 11A is, however, relating to the punishment of discharge and dismissal and not for other kinds of punishment.
Managerial rights are not restricted to that extent under S. 11A and the jurisdiction of the Labour Court and the Tribunal is widened to that extent so far as the finding of misconduct and the Page 5 of 18 C/SCA/5347/2008 JUDGMENT punishment of discharge and dismissal are concerned. The law on the point for other kinds of punishment except the punishment of discharge or dismissal remains unaffected by the provisions of S. 11A, Industrial Disputes Act."
(Para 17) (Per: Chauhan, J) 7.1 It was further stated, "S. 11A only empowers the Labour Court or the Tribunal to interfere with the punishment regarding the discharge or dismissal of the workman and it does not specifically refer to any other kind of punishment. It also empowers the Labour Court or the Tribunal to interfere with the order of discharge or dismissal if it is not satisfied that such punishment was justified and in that case, it may set aside the order of discharge or dismissal and direct the reinstatement on such terms and conditions as it may think fit. The Labour Court or Tribunal may, in such cases, grant other relief including the lesser punishment in lieu of discharge or dismissal. As the section does not refer to either kinds of punishment, which the management is entitled to award for certain acts of misconduct, it cannot be accepted that this section e powers and vests jurisdiction in the Labour Court or Tribunal to to interfere with the order of punishment than the one imposed by the management. the Legislature must be aware of the restricted jurisdiction and the powers of the discussed above, and even then did not vest the jurisdiction or empower the Labour Court or the Industrial Tribunal to interfere with or substitute other kind of punishment than that of the discharge or dismissal. If at all the intention of the Legislature would have been to substitute other punishment, it would have specifically included them in S. 11A and would have Page 6 of 18 C/SCA/5347/2008 JUDGMENT confined it to the punishment of discharge or dismissal. It also cannot be accepted that it reflects the intention of the policy of the Legislature and, therefore, the said principles should also be made applicable to other kinds of punishment. If at all that would have have been the policy and the Legislature wanted to restrict the managerial power for other kinds of punishment, there was no reason for not making such provisions in S. 11A or in any other provisions of the Act."
(Para 16) (Per: Chauhan, J) 7.1.1 The Court observed that powers of Labour Court and/or Industrial Tribunal to interfere with finding of misconduct and that of the order imposing punishment other than punishment of discharge or dismissal are restricted eventhough Labour Court and/or Industrial Tribunal has wider powers than revisional powers. Interference could be justified, the Court held, in the circumstances mentioned, it was clarified. It was only in the circumstances, without being exhaustive, of one of good faith, victimization or unfair labour practice, basic error of violation of principles of natural justice, finding recorded is completely perverse, exercise of powers found colourable and punishment to be shockingly disproportionate having regard to the nature of misconduct committed.
7.1.2 In a concurring judgment (per Ahmadi, J) the Court observed with regard to object, the legislature intended to subserve, while inserting Section 11A of the statute book. The reasons which Page 7 of 18 C/SCA/5347/2008 JUDGMENT inspired insertion of the provisions were two-folds. Firstly, the decision of the Apex Court in Indian Iron and Steel Company Limited Vs Their workman [AIR 1958 SC 130] wherein the Apex Court observed that Industrial Tribunal does not act as a Court of Appeal and substitute its own judgment in place of that of the management, unless one of good faith, victimization, unfair labour practice, etc., on the part of the management is proved. The second reason was the recommendation No.119 of the Indian Labour Organisation (ILO) concerning the workers right to challenge his termination before a neutral body.
7.1.3 With regard to powers available under Section 11A, concurring judgment said, "This power is specifically confined to cases of discharge or dismissal and not to other case where the punishment imposed is short of that. That would ordinarily mean that the Legislature intended to permit interference in managerial discretion by the Labour Court/Industrial Tribunal in cases where the punishment results in termination of employment and not in all cases. In other words, case of punishments other than discharge or dismissal would continue to be governed by the law laid down by judicial pronouncements prior to the insertion of S. 11A in the Act."
(para 3)
(Per Ahmadi, J)
7.1.4 The anxious Court proceeded to state,
"The tendency of the Labour
Court/Industrial Tribunal to lightly interfere with the order of punishment, is clear where the punishment inflicted Page 8 of 18 C/SCA/5347/2008 JUDGMENT is short of dismissal or discharge, as if it were exercising appellate jurisdiction must be deprecated. It must be remembered that the quantum of punishment cannot be measured in golden scales and will differ from individual to individual depending on his notions of discipline but the Labour Court/Industrial Tribunal will not be justified in interfering with the employer's order of punishment merely because it would have visited workman with a lighter punishment if it were wearing the employer's shoes. It is only in cases where the Labour Court/Industrial Tribunal comes to the conclusion, for reasons to be stated in writing, that the punishment imposed is grossly disproportionate to the proved misconduct that it may interfere with the order of punishment. Such cases would be far and few. Unfortunately, we have noticed that the Labour Court/Industrial Tribunal freely interfere with the quantum of punishment, some of the cases on hand are examples of unwarranted interference, which has been responsible for generating a lot of avoidable litigation. That is why it was thought that the time was ripe for clearly stating the jurisdictional parameters of the Labour Court/Industrial Tribunal in such cases. However, a word of caution for the managements seems necessary, namely, that it must act in a reasonable manner in the choice of punishments from the wide range of censure to dismissal if it does not want the Labour Court/Industrial Tribunal to interfere on the ground that the severity of the punishment betrays victimisation."
(para 7) (per Ahmadi, J)
8. Another Division Bench in Municipal Page 9 of 18 C/SCA/5347/2008 JUDGMENT Commissioner, Baroda Vs Santakumar D. Brahmbhatt [1992 (1) GLR 432] held that though Section 11A would clearly come into play when there is an order of discharge or dismissal, however, once dispute is referred to the Tribunal, the Tribunal would have jurisdiction to decide whether the penalty is unduly severe. It was held that the Labour Court or Tribunal can set right the matter. Following were the observations in paragraph 4 of the said decision:
"The learned Advocate for the petitioner was right when he contended that on the express language of Sec. 11A of the Act, such controversy could not be covered by the said provision as such provision relates to only discharge or dismissal of a workman. However, on the facts of the present case, the very dispute which is referred to the Industrial Tribunal for adjudication centres round the legality and propriety of the imposition of punishment of stoppage of three yearly increments with future effect. Once that dispute is referred for adjudication, the Industrial Tribunal in exercise of its power under Sec. 11A was bound to adjudicate upon that dispute and pronounce upon it. The term "industrial dispute" is defined by Sec. 2(k) to mean any dispute or difference between employers and employers or between employers and workmen. It cannot be gainsaid that there is difference or dispute between the employer and employee in connection with the punishment imposed on the workman. Therefore, de hors Sec. 11A, the legality and impropriety of the punishment had to be examined by the Industrial Tribunal while adjudicating this very dispute which was referred for adjudication. Consequently, when the Industrial Tribunal considered the gravity of the punishment in the light of the charges having been held proved, it cannot be said that it was exercising jurisdiction not Page 10 of 18 C/SCA/5347/2008 JUDGMENT vested in it. In fact, it was its obligation to adjudicate this very dispute which was referred for adjudication."
(para 4) 8.1 In Special Civil Application No.1026 of 1999, the order of the Industrial Tribunal which reduced penalty imposed on the workman from reduction of salary by 16 stages imposed by the competent authority of the employer, to the punishment of reduction of five stages was under challange. The workman in that case was a conductor who was charged with misappropriation by reissuing the used tickets. The aforesaid order by the Tribunal reducing penalty was passed in exercise of powers under Section 11A of the Act. After learned Single Judge of this Court dismissed the said Special Civil Application No.1026 of 1999, Letters Patent Appeal No.513 of 1999 came to be preferred in which the Division Bench noticed the conflict of view between Prabhashanker Acharya (supra) and Santakumar Brahmbhatt (supra) and recorded order, relevant part of which reads as under:
"2. Mr.Hardik C.Rawal, learned counsel for the appellant placing his reliance upon a Division Bench judgement dated 29.03.2005 of this Court in Letters Patent Appeal No.1199 of 2002 submits that powers vested in the Labour Court/Industrial Tribunal under sec.11A of the Act can be exercised only in cases which relate to discharge or dismissal of a workman and not otherwise. On the other hand Mr.Prabhakar Upadhyay, learned counsel for the workman placing his reliance upon yet another Division bench judgement of this Court in the matter of Municipal Commissioner, Baroda Vs. Sanatkumar D.Brahmbhatt, reported in 1992(1) G.L.R. 432 Page 11 of 18 C/SCA/5347/2008 JUDGMENT submits that when a reference is made to the Labour Court/Industrial Court, then the whole issue is writ large before the said Court/Tribunal and de hors section 11A of the Act, legality and propriety of the punishment will have to be examined by the Industrial Tribunal while adjudicating this dispute which was referred for adjudication.
3. After going through both the judgements we are of the considered opinion that there is a sharp conflict in the said two judgements. We are of the opinion that the matter deserves to be considered by a Larger Bench of this Court to bring at rest the controversy once for all. Let the matter be placed before the Honourable Chief Justice for referring the matter to a Larger Bench on the simple question that which of the judgements decides the law correctly."
8.2 Thereafter Full Bench of this Court in G.S.R.T.C. Vs D.V. Chauhan [2006 92) GLH 64], upon a Reference to it by the Division Bench as aforesaid, considered scope of powers of the Labour Court or Industrial Tribunal, as the case may be, in the context of Section 11A in light of discordant views expressed by two Division Benches. Honourable the Full Bench enunciated the law as under:
"Adverting to the question, which of the two judgments referred to by the Division Bench (Coram: R.S.Garg & Ravi R.Tripathi, JJ.) decides the law correctly, our answer is, Section 11A may exclusively deal with cases of discharge or dismissal, but criteria, after common reference under Section 10, to decide an industrial dispute is same, namely, the Second Schedule and the Third Schedule. In other words, in all cases of punishments, Labour Court/Tribunal can examine the legality and propriety of punishment, irrespective of nature thereof.Page 12 of 18
C/SCA/5347/2008 JUDGMENT Scope of examination of an industrial dispute and extent of interference is same irrespective of the fact that Section 11A deals specifically with cases of discharge or dismissal, because, as said, in all cases, it is the legality and propriety of the order passed by the employer which is to be examined.
In cases of discharge or dismissal, the Labour Court/ Tribunal exercises power under Section 10 read with Section 11A read with the Second Schedule and the Third Schedule, while in other cases, it exercises jurisdiction under Section 10, read with the Second Schedule and the Third Schedule. Mere mention of Section 11A while exercising power in cases of punishments other than discharge or dismissal would not make the order illegal since jurisdiction to interfere is traceable to Section 10, read with the Second Schedule and the Third Schedule."
(para 11) 8.2.1 It was stated, "The Division Bench decision (Coram:
G.S.Singhvi & Anant S.Dave, JJ.) [Vankar R.R. v. Gujarat State Road Transport Corporation (supra)] is relevant to the extent, parties have no disagreement, that Section 11A is confined to cases of discharge or dismissal.
Still, the Court examined the case on merits, finding no fault with procedure and laws, did not interfere with the discretion exercised by the employer in the matter of imposition of punishment. The Division Bench (Coram:
S.B.Majmudar & S.M.Soni, JJ.) [Municipal Commissioner, Baroda v. Sanatkumar D.Brahmbhatt (supra)] is correct when it holds that punishments other than discharge or dismissal are not covered under Section 11A of the Act. It is also correct when it holds that dehors Sec.11A the legality and propriety of punishment had to be examined by the Industrial Tribunal/ Labour Court while adjudicating the industrial dispute referred Page 13 of 18 C/SCA/5347/2008 JUDGMENT to it for adjudication, but holding that once an industrial dispute is referred for adjudication, the Industrial Tribunal/ Labour Court, in exercise of its power under Section 11A, is bound to adjudicate upon the dispute and pronounce upon it, is not correct, because dispute is not referred under Section 11A, it is referred under Section 10, and once referred, be it punishment of dismissal or discharge or any other kind of punishment, Labour Court/ Industrial Tribunal is bound to adjudicate upon the legality and propriety of punishment order referred in dispute and pronounce upon it." (para 12) 8.3 It was observed and held by the Full Bench relying upon the Apex decision in Indian Iron and Steel Company Limited (supra) that the management is the master of disciplinary realm to be exercised over the employees. When there is want of good faith, when there is victimisation or unfair labour practice, when the management is guilty of basic error of violation of principles of natural justice and where on the basis of the materials on record, findings could be said to be completely baseless or perverse, powers of the Labour Court could be extended to set right the managerial deciison of imposition of penalty. The Full Bench, carved out the categories of circumstances under which the Labour Court or the Industrial Tribunal would be justified in exercising the 11A powers. It held that while exercising legality and proprietary of the order, subject matter of industrial dispute, irrespective of nature of punishment, the powers could be exercised where, without being exhaustive, there is (i) want of good faith; (ii) victimization or unfair labour practice; (iii) basic Page 14 of 18 C/SCA/5347/2008 JUDGMENT error or violation of principles of natural justice;
(iv) finding completely baseless or perverse; (v) colourable exercise of power or want of bona fide;
(vi) punishment shockingly disproportionate in the facts of the case; and (vii) conduct of workman/workmen, present or past.
9. A decision of the Apex Court in General Secretary, South Indian Cashew Factories Workers Union Vs. Managing Director, Kerala State Cashew Development Corporation Limited [AIR 1006 SC 2208] may now be noticed. The position of law was highlighted by the Apex Court in paragraph 16, which is reproduced hereunder:
"The Labour Court had earlier held that the enquiry was properly held and there was no violation of the principles of natural justice and that the findings were not perverse. The vitiating facts found by the Labour Court against the enquiry are erroneous and are liable to be set aside. If enquiry is fair and proper, in the absence of any allegations of victimization or unfair labour practice, the Labour Court has no power to interfere with the punishment imposed. Section 11A of the Act gives ample power to the Labour Court to re- appraise the evidence adduced in the enquiry and also sit in appeal over the decision of the employer in imposing punishment. Section 11A of the Industrial Disputes Act is only applicable in the case of dismissal or discharge of a workman as clearly mentioned in the Section itself. Before the introduction of Section 11A in Indian Iron and Steel Co. Ltd. v. Their Workmen [(1958) SCR 667] this Court held Page 15 of 18 C/SCA/5347/2008 JUDGMENT that the Tribunal does not act as a Court of appeal and substitute its own judgment for that of the Management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc. on the part of the management. There is no allegation of unfair labour practice, victimisation etc. in this case. The powers of the Labour Court in the absence of Section 11A is illustrated by this Court in Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management [(1973) 1 SCC 813]. When enquiry was conducted fairly and properly, in the absence of any of the allegations of victimisation or malafides or unfair labour practice, Labour Court has no power to interfere with the punishment imposed by the management. Since Section 11A is not applicable, Labour Court has no power to re-appraise the evidence to find out whether the findings of the enquiry officer are correct or not or whether the punishment imposed is adequate or not. Of course, Labour Court can interfere with the findings if the findings are perverse. But, here there is a clear finding that the findings are not perverse and principles of natural justice were complied with while conducting enquiry. (para 16) 9.1 The law set down as above in General Secretary, South Indian Cashew Factories Workers Union (supra) could be said to be churning out a gist of legal position on the issue.
10. The above are the main decisions, which marked the circuitous journey of position of law with regard to the powers exercisable by Labour Court or the Industrial Tribunal, as the case may be, under Page 16 of 18 C/SCA/5347/2008 JUDGMENT Section 11A of the Act where punishment is minor in nature being other than discharge or dismissal. The imposition penalty which is not one discharge or dismissal, but could be treated as minor penalty, is primarily and generally, the realm of the management or the disciplinary authority in which, Labour Court or Industrial Tribunal, as the case may be, would not interfere unless the case falls within the cagegories mentioned, though not exhaustive. At the cost of repetition, they are those where the findings are totally perverse or case is one of "no evidence" or it is a case of victimization or unfair labour practice. It is permissible in the cases where on facts, punishment is found to be shockingly disproportionate and uncommensurate to the gravity of misconduct.
10.1 As discussed and highlighted hereinabove, in the present case, the propriety of findings of Inquiry Officer could not be excepted; the recording of proof of guilt of charges levelled against workman was based on legally tenable evidence. The findings were in no way perverse, but were reasonable and emanating from evidence. There was no allegation of unfair labour practice or victimisation. The penalty of dismissal imposed stood commensurate with seriousness of misconduct of misappropriation. Thus, there was no room for the Industrial Tribunal to interpose itself and interfere with the penalty which was other than dismissal or discharge.
11. For the foregoing reasons and discussion, the impugned judgment and award dated 29th June, 2007 Page 17 of 18 C/SCA/5347/2008 JUDGMENT passed by the Industrial Tribunal in Reference (IT) No.289 of 2001 whereby the Industrial Tribunal has interfered with and set aside the penalty of one yearly increment with future effect, could not be sustained. Accordingly the same is hereby quashed and set aside. Rule is made absolute.
(N.V.ANJARIA, J.) Anup Page 18 of 18