Gujarat High Court
Govindbhai Mohanbhai Garnada vs Divisional Controller & on 2 February, 2017
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SCA/17295/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17295 of 2014
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GOVINDBHAI MOHANBHAI GARNADA....Petitioner(s)
Versus
DIVISIONAL CONTROLLER & 1....Respondent(s)
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Appearance:
HCLS COMMITTEE, ADVOCATE for the Petitioner(s) No. 1
MR SAMIR B GOHIL, ADVOCATE for the Petitioner(s) No. 1
MR SHAIVANG D MEHTA, ADVOCATE for the Petitioner(s) No. 1
MR HARDIK C RAWAL, ADVOCATE for the Respondent(s) No. 1
MR PARITOSH CALLA, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 02/02/2017
ORAL ORDER
1 The judgement and award dated 21.4.2014 passed by the Labour Court, Amreli, in Reference LCA No. 5 of 2008 calling in question the punishment imposed on the petitioner on the charge of misappropriation of the ticket fare of Rs. 4/- while he was discharging his duties as conductor in the State Road Transport Corporation - respondent employer herein, is under challenge in this petition.
2 The learned counsel for the petitioner drew the attention of this court to the stand taken by the petitioner during the inquiry that in response to the gestures made by some passengers standing on the road for allowing them to board the bus, the driver stopped the bus midway on humanitarian consideration and before the tickets could be Page 1 of 6 HC-NIC Page 1 of 6 Created On Sun Aug 13 08:22:26 IST 2017 C/SCA/17295/2014 ORDER issued to such passengers who were allowed to board the bus, the checking squad embarked the bus at the spot which was at a distance only one kilometer from the spot where the passengers were taken as above, tickets could not be issued to the said passengers before arrival of the checking party. It was contended that such facts were explained to the reporter who, however, proceeded to make report against the petitioner after recording the statements of the passengers. The learned counsel submitted that the driver who had stopped the bus as aforestated was not examined and thus, the inquiry proceedings were conducted in violation of the principles of natural justice. The learned counsel submitted that in view of section 11A of the Industrial Disputes Act, the Labour Court ought to have exercised the discretion by altering the punishment to anything less than dismissal and that having regard to the misappropriation of only Rs. 4/- such a harsh punishment was uncalled for. It was argued that the Labour Court failed to appreciate the said aspect which has resulted into miscarriage of justice.
3 On the contrary, the learned counsel for the respondent Corporation pointed out that the petitioner was involved in a misconduct of serious nature. In his submission the nature of misconduct and not the quantum of amount involved therein is a deciding factor and in a case like misappropriation of money or corruption, the learned counsel would contend that the dismissal is the only punishment as indicated in U.P. State Road Transport Corporation v. Suresh Chand Sharma (2010) 6 SCC 555, more particularly, paragraphs No. 21 to 24 which read as under:
"21. We do not find any force in the submissions made by Dr. J.N. Dubey, learned Senior counsel for the Page 2 of 6 HC-NIC Page 2 of 6 Created On Sun Aug 13 08:22:26 IST 2017 C/SCA/17295/2014 ORDER 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 mis- appropriate the public money.
22. In Municipal Committee, Bahadurgarh Vs. Krishnan Bihari & Ors., AIR 1996 SC 1249, this Court held as under:-
"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 Rajasthan 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 held that the punishment should always be proportionate to the gravity of the misconduct.
Page 3 of 6HC-NIC Page 3 of 6 Created On Sun Aug 13 08:22:26 IST 2017 C/SCA/17295/2014 ORDER 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."
4 Apropos the submission that the evidence of the reporter was adequate in the departmental inquiry and that no obligation was cast upon the respondent Corporation to examine the witness as per the procedure laid down under the Code of Civil Procedure or Evidence Act, the learned counsel invited the attention of this court to U.P. State Road Transport Corporation (supra), particularly, paragraphs No. 15 and 16 which read thus:
"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 Page 4 of 6 HC-NIC Page 4 of 6 Created On Sun Aug 13 08:22:26 IST 2017 C/SCA/17295/2014 ORDER 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: (SCCpp. 493-94,para 5) "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."
5 The learned counsel also submitted that the legality and validity of the departmental inquiry was gone into at the instance of the petitioner and by order below Exh. 32 in the proceedings before the Labour Court, it was validated as legal, which was not further challenged by the petitioner and thus legality and validity was no more under question and therefore the punishment which has been considered by the court on the basis of the relevant convincing evidence may not be gone into by this court under Article 227 of the Constitution of India.
6. Having considered the rival contentions, there can be no escape from the conclusion that the petitioner was held responsible for a serious misconduct involving moral turpitude. In the light of the observations made in U.P. State Road Transport Corporation (supra), the respondent was not under an obligation to adduce the evidence as per the procedure under the Code of Civil Procedure or Evidence Act and the evidence of the reporter who was admittedly examined was sufficient enough to bring home the guilt of the Page 5 of 6 HC-NIC Page 5 of 6 Created On Sun Aug 13 08:22:26 IST 2017 C/SCA/17295/2014 ORDER petitioner. If the driver was not examined and if the petitioner intended to rely upon his evidence, nothing prevented the petitioner to examine him as his own witness. No such attempts seem to have made and thus no infirmity is noticed in the departmental inquiry on this count. Testimony of the passenger was also not necessary as indicated in the said case. Smallness of the amount is also not material. What is material is the conduct of the employee and if in the public employment the conduct is not above board and is as serious as involving moral turpitude the same cannot be tolerated. The Labour Court has rightly observed that apart from the current incident, the petitioner was involved in 14 other illegalities, out of which few were of the similar nature. The Labour Court has observed that despite getting an opportunity to mend his ways, the petitioner refused to do so by repeatedly indulging into similar misconduct.
In above view of the matter, no substance is found in this petition. The petition must fail and accordingly, is dismissed with no order as to costs. Notice is discharged.
(G.R.UDHWANI, J.) (pkn) Page 6 of 6 HC-NIC Page 6 of 6 Created On Sun Aug 13 08:22:26 IST 2017