Gujarat High Court
G.S.R.T. Corpn. vs Chhatraji Pradhanji Thakor on 19 June, 2001
Author: Ravi R. Tripathi
Bench: Ravi R. Tripathi
JUDGMENT Ravi R. Tripathi, J.
1. The present petition is filed by the Gujarat State Road Transport Corporation (hereinafter referred to as the 'G.S.R.T.C.' for short) challenging the award passed by the Labour Court at Kalol in Reference (LCK) No. 185/1986 dated 15th July, 1999. By the said award the learned Judge was pleased to order reinstatement of the respondent-workman with full back-wages and all consequential benefits and ordered to impose punishment of stoppage of two increments with future effect for the misconduct, which according to the learned Judge was not of a grave nature.
2. The facts giving rise to the present proceedings are that the respondent-workman, who was serving as a Conductor with the petitioner-Corporation, was given a show cause notice dated 19th March, 1976, to which the workman had filed a reply, but, the same was not acceptable to the petitioner-Corporation and therefore, a chargesheet was issued and departmental inquiry was conducted. The case of the respondent-workman was that the petitioner-Corporation did not allow the representative of the Union to remain present and was not given the permission to examine the witnesses and copy of the inquiry report was not given to him and therefore, he could not defend his case properly. It is also the case of the respondent-workman that, while terminating the services of the workman, neither notice nor notice pay was paid and therefore, the order dated 17th July, 1978, terminating the services of the respondent-workman was illegal and unreasonable.
3. The petitioner-Corporation filed reply by Exh.21 wherein the contents of the statement of claim were denied and it was stated that the respondent-workman was found indulging in the misconduct of serious nature like dishonesty and cheating on 09/05/1975, 10/05/1975 and 11/05/1975 and therefore, the chargesheet bearing No. 730/1975 was issued to the respondent-workman. According to the petitioner-Corporation, he was given full opportunity to defend himself and the departmental inquiry was conducted in accordance with law and on having found the charges clearly proved against the respondent-workman, the order dated 17th September, 1975 was passed whereby the penalty of reducing the respondent-workman to the minimum stage of the pay-scale of the conductor for a period of five years. A copy of the order dated 17th September, 1975 is made available by Mr. Rawal, learned Advocate appearing for the petitioner-Corporation, which is taken on record.
4. Thereafter, taking into consideration the seriousness of the charge and having found the penalty imposed too light, the order of the disciplinary authority dated 17th September, 1975 was cancelled and a show cause notice dated 2nd April, 1976 was given to the respondent-workman. After affording personal hearing, an opportunity to defend himself and an opportunity to present his case, the reviewing authority passed an order dated 17th July, 1978, dismissing the petitioner. It was against this order that dispute was raised and Reference came to be made in the year 1986, which was allowed ex parte by the Labour Court in favour of the respondent-workman, against which the petitioner-Corporation filed a Miscellaneous Application No. 11/1997 for hearing on merits by setting out the reasons for having remained absent.
5. After taking into consideration, the contents of the said application, the learned Judge was pleased to allow that Miscellaneous Application and award costs of Rs.750/- to the respondent-workman, by an order dated 13th February, 1998, a xerox copy of which is made available by Mr. Rawal, learned Advocate for the petitioner-Corporation, which is taken on record.
6. It is important to note that the learned Judge has in terms recorded in para-6 that so far as the papers regarding the departmental inquiry are concerned, the same are not available on account of destruction of the same in view of General Standing Order No. 197/1969 of the petitioner-Corporation and therefore, it is not possible to decide as to whether the departmental inquiry was legal or illegal. The learned Judge has then proceeded to decide as to whether the respondent-workman has a right to get himself reinstated in service. The learned Judge has recorded that from the cross-examination of the second party, respondent-workman, it is clear that on 10/05/1975, after having returned from the trip, the respondent-workman did not deposit the amount and deposited the same only on the next day morning. It is also recorded in terms that it is clear from the cross-examination of the respondent-workman that the cash, which is brought by the respondent-workman, is to be deposited on the same day, but, the same was deposited only on the next day. The learned Judge has also recorded that according to the rule, the respondent-workman has not deposited the cash in the Corporation and therefore, the petitioner-Corporation has, after holding the inquiry against the respondent-workman, dismissed him. The learned judge, exercising his discretion under section 11A, has held that the order of dismissal of the respondent-workman is too harsh and therefore, the said order is quashed and set aside and the penalty is substituted for stoppage of two increments with future effect. The learned judge has accepted the version of the respondent-workman that he is unemployed and that he had tried to get the service, but, he did not get the same and therefore, full back-wages are awarded with effect from 22nd July, 1992.
7. It is to be appreciated that the learned Judge has recorded in terms that in view of the General Standing Order No. 197/1969, the record of the departmental inquiry is not available and that in absence of that record, it cannot be decided as to whether the departmental inquiry was legal or illegal. The learned Judge has also recorded that the respondent-workman was under an obligation to deposit the cash on the same day, but, the same was deposited on the next day. Perusal of the order dated 17th September, 1975 reveals that on 09/05/1975, the respondent-workman had a night duty for Dangarva to Patan and he had returned on 11/05/1975 at 6.30 p.m. to Kadi and as per the rules, the respondent-workman was to deposit the amount of traffic earning on the same day, but, he did not deposit the same and when the respondent-workman came on duty at 11.00 p.m., the Booking Clerk had checked the accounts and the respondent-workman was supposed to have Rs. 1470=55 ps., but, he was in possession of only Rs. 500/- and there was a shortfall of Rs. 970=50 ps. It is also recorded in the said order that there was also a deficit of Rs.75/- while checking the account of the ticket Blocks bearing No. CWA-19181. What is more serious is the next irregularity, whereby 8 blocks of tickets, which were used earlier, were found to be with the respondent-workman for which there was no justification and the only inference, which can be drawn, is that the same were retained by the respondent-workman with a view to use the same for unlawful gain.
8. The learned Judge, having held that the respondent-workman was under an obligation to deposit the amount on the same day, he has not deposited the same and thus, he was guilty of irregularity. But, for no apparent reasons, the learned Judge has come to the conclusion that the irregularity committed by the respondent-workman can be said to be only of light nature and therefore, the respondent-workman should be awarded only light punishment. Without discussing any further reasons, the learned Judge has substituted the penalty of dismissal by a penalty of stoppage of two increments with future effect. Not only that the learned Judge has awarded full back-wages without giving any reasons for the same.
9. Learned Advocate, Mr. Rawal relied upon a judgement of the Apex Court reported in the matter between Karnataka State Road Transport Corporation Vs. B.S. Hullikatti, reported in (2001) 2 SCC 574, wherein the Apex Court has held that misconduct on the part of the bus conductor, who charge higher fare from passengers, knowing well the correct fare to be charged, is a gross misconduct. Not only that the Apex Court has also held that res ipsa loquitur is applicable and that the order of dismissal is justified. It is held by the Apex Court that the Labour Court and the High Court were not justified in ordering reinstatement with full back-wages. The Honourable the Supreme Court has observed that, "the impugned order of reinstatement with full back-wages is nothing, but, a case of misplaced sympathy". The Apex Court further observed that as the respondent-workman in that particular case, having already reached the age of superannuation, the order of reinstatement was not required to be set aside. However, it was observed that the respondent-workman would not be entitled to any back-wages though would be entitled to retiral benefits.
10. Mr. Rawal, learned Advocate for the petitioner-Corporation, has also relied upon a judgement of the Apex Court in the matter between Janatha Bazar vs. Secretary, Sahakari Noukarara Sangha And Others, reported in (2000) 7 SCC 517, wherein the Apex Court has discussed the scope of judicial review under section 11A of I.D. Act. The Apex Court has observed that in the cases where the charge of misappropriation of goods was established in the domestic inquiry and the delinquent employee was dismissed, the order of the Labour Court directing the reinstatement with 25% back-wages on the ground that his past record was without blemish, is erroneous. The Apex Court observed that in the cases of proved misappropriation, no sympathy is called for.
11. Mr. Pathak, learned Advocate appearing for the respondent-workman, submitted that the learned Judge was justified in passing the award in absence of any evidence either oral or documentary led by the petitioner-Corporation. He also submitted that it was the petitioner-Corporation to place the evidence before the Labour Court while the Labour Court was exercising the jurisdiction under section-11A of the I.D. Act. The contention raised by Mr. Pathak, does not warrant any attention in view of the fact that it is already discussed that in the present case, the respondent-workman, having been dismissed in the year 1978, has approached the Labour Court only in the year 1986. Thus, having allowed to pass the time, in all probabilities, the workman was well aware that as the time passes, the record of the proceedings will not be available. The Labour Court has based its finding only on the non-availability of the record, which cannot be upheld by this Court in the aforesaid circumstances.
12. Taking into consideration the totality of the case, it is clear that the conductor, who was dismissed from service on 17th July, 1978, came to the Court in the year 1986 only and the matter could be heard only in the year 1998-99. Then, on the plea that the record is not available, the learned Judge holds against the Corporation and holds in favour of the respondent-workman by saying that though the respondent-workman was under an obligation to deposit the amount on the same day, he has not deposited the same and deposited on the next day and the irregularity which is committed is of too light nature and therefore, he should meet with only light punishment. The approach of the learned Judge calls for interference at the hands of this Court. Hence, the award of the learned Judge is quashed and set aside and the penalty of dismissal is restored. Rule is made absolute. No order as to costs.