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Gujarat High Court

Divisional Controller vs Rameshbhai H Damor - Secretary & on 20 January, 2015

Author: N.V.Anjaria

Bench: N.V.Anjaria

        C/SCA/153/2014                                    JUDGMENT



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             SPECIAL CIVIL APPLICATION NO. 153 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE N.V.ANJARIA
================================================================
1   Whether Reporters of Local Papers may be allowed to see          No
    the judgment ?

2   To be referred to the Reporter or not ?                          No

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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             DIVISIONAL CONTROLLER....Petitioner(s)
                           Versus
      RAMESHBHAI H DAMOR - SECRETARY & 1....Respondent(s)
================================================================
Appearance:
MR HARDIK C RAWAL, ADVOCATE for the Petitioner(s) No. 1
MR GK RATHOD, ADVOCATE for the Respondent(s) No. 1
MR MUKESH H RATHOD, ADVOCATE for the Respondent(s) No. 1
MR PARITOSH CALLA, ADVOCATE for the Respondent(s) No. 2
================================================================
        CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
                     Date : 20/01/2015
                           ORAL JUDGMENT

As far as respondent No.2 is concerned, since it is not a contesting party, learned advocate for the petitioner seeks to delete it. Permission granted. Respondent No.2 stands deleted.

C/SCA/153/2014 JUDGMENT

2. RULE. Learned advocate Mr. Mukesh Rathod waives service of notice of Rule for respondent No.1.

2.1 Upon request and consent of both the learned advocates for the parties, the petition is taken up for final consideration today, making Rule returnable forthwith.

3. Challenge in this petition filed by Gujarat State Road Transport Corporation is directed against judgment and award dated 06.02.2013 of Industrial Tribunal No.1, Vadodara passed in Reference(I.T.) No.23 of 2009. Thereby, the reference of the workman came to be allowed. The penalty order dated 22.09.2004 of stoppage of three increments with future effect imposed upon the workman by the petitioner-employer was held to be bad and came to be set aside by the Tribunal. The Tribunal further directed that the arrears payable to the workman by virtue of setting aside the order of penalty shall be paid within 30 days.

3.1 The respondent-workman was employed as conductor with the petitioner-Corporation. For the alleged misconduct of insubordination and misbehavior with the superior officer, the workman came to be charge- sheeted. A regular departmental inquiry was held and by order dated 22.09.2004, the disciplinary authority imposed the aforesaid punishment. Industrial Dispute was raised in respect of said order of penalty by the workman invoking the jurisdiction of the Industrial Tribunal.

C/SCA/153/2014 JUDGMENT 3.2 Before the Industrial Tribunal, by filing pursis at Exh.37, the workman gave up his contention regarding legality and fairness of the inquiry. The Tribunal came to the conclusion that adequate evidence was not available with the Inquiry officer leading to finding of guilt against the workman. The finding was recorded in the judgment that neither complainant,nor reporter or any witness was examined. As against, it was sought to be pointed out by learned advocate for the petitioner that the reporter was examined in the inquiry and he was allowed to be cross-examined by the workman. The Industrial Tribunal held that the findings recorded in the inquiry were perverse and the charge could not have been held to be proved and consequently, it held that the imposition of any penalty was not called for.

4. Apart from the findings recorded above, which are not to be lightly interfered with in exercise of writ jurisdiction of this Court, the material aspect which emerges is that the reference was sought for by the workman after gap of 5 years. The delay in raising industrial dispute is one of the relevant factors having bearing on the aspect of penalty to be imposed. Learned advocate for respondent No.1 could not dispute about 5 years' delay in raising the reference. In this context, both learned advocates stated and submitted, leaving it to the discretion of the Court that appropriate order may be passed

5. The aspects emerge are that there was a delay of Page 3 of 5 C/SCA/153/2014 JUDGMENT 5 years in raising reference. Furthermore, the case was one which could be characterized as "no evidence"

before the Inquiry Officer inasmuch as from the record, it could be showed that the reporter was examined and he was allowed to be cross-examined by the workman. A criminal case was filed against the workman.

5.1 Keeping in view all the above-noted aspects and in view of facts and circumstances of this particular case and considering the request of learned advocates leaving the case to the discretion of the Court as regards the penalty, the interest of justice would be served if the penalty of stoppage of one increment with future effect is imposed on the workman and further that the workman is not paid any arrears arising by virtue of setting aside the original order of penalty.

6. In the aforesaid view, the impugned judgment and award dated 06.02.2013 is modified to the extent by ordering that (i) the respondent-workman shall suffer stoppage of one increment with future effect and

(ii) he shall not be entitled to be paid any arrears payable from 22.09.2004 being the date of original punishment till the date. It is however further clarified that the notional benefit of continuity of service shall be available to the workman.

7. The petition is allowed to the aforesaid extent making rule absolute accordingly.

             C/SCA/153/2014                  JUDGMENT



                                           (N.V.ANJARIA, J.)


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