Gujarat High Court
Gujarat State Road Transport ... vs Husain I Ghanchi S/O Ismailbhai & on 9 January, 2017
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SCA/7793/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7793 of 2016
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GUJARAT STATE ROAD TRANSPORT CORPORATION....Petitioner(s)
Versus
HUSAIN I GHANCHI S/O ISMAILBHAI & 1....Respondent(s)
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Appearance:
MR HS MUNSHAW, ADVOCATE for the Petitioner(s) No. 1
MR JS BRAHMBHATT, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 09/01/2017
ORAL ORDER
The petitioner-GSRTC questions the judgment and award dated 17/06/2014 passed by the Industrial Tribunal, Vadodara in Reference (IT) No.493 of 2013 whereby the punishment of scaling down wages of the workman by three stages imposed by an order dated 21/12/2012 in review petition No.92 of 2012 came to be quashed and set aside and the workman was ordered to be paid consequential benefits.
2. It appears that on account of charge of misbehaviour and committing misconduct with Depo Manager, Padra on 05/07/2011, a preliminary inquiry was conducted; report was submitted on 12/10/2011 indicating involvement of respondent No.1-workman in the said misconduct and a suggestion was made to hold Page 1 of 5 HC-NIC Page 1 of 5 Created On Sat Aug 12 04:09:12 IST 2017 C/SCA/7793/2016 ORDER a departmental inquiry. Chargesheet was issued to the workman on 05/11/2011 and departmental inquiry was held. Respondent No.1workman was questioned on the charge and on his denial, the inquiry was proceeded with. However, concededly, during the inquiry, a preliminary report of the reporter was taken as evidence and he was examined in the departmental inquiry; but was not crossexamined by respondent No.1workman.
3. The workman was visited with a penalty of stoppage of one increment, which punishment was taken in review by reviewing authority being Divisional Controller, Vadodara Division, which found the punishment to be inadequate and issued a showcause notice for review and eventually the punishment of scaling down the workman by three stages reducing his pay came to be imposed upon the workman. Industrial dispute was raised which eventually culminated into Reference (IT) No.493 of 2013.
4. Having considered the rival contentions, the fact that except reporting officer, no witness came to be examined in the departmental inquiry is undisputed. The petitioner did not lead any evidence to justify the punishment in the tribunal. Resultantly the finding of the tribunal that the enquiry was flawed by not examining the witness conversant with the facts of the case, deserves to be upheld.
5. Learned Counsel for the petitioner would Page 2 of 5 HC-NIC Page 2 of 5 Created On Sat Aug 12 04:09:12 IST 2017 C/SCA/7793/2016 ORDER contend that before reviewing authority, the workman had admitted the guilt. He therefore contended that no further evidence was necessary. In the opinion of this Court, opportunity was required to be given to the workman at the threshold and the petitioner cannot be permitted to rely upon a belated socalled admission, that too in the review proceedings.
6. Learned Counsel for the petitioner also submitted that during the preliminary inquiry, charge against the workman was proved. In the opinion of this Court in absence of the opportunity to the workman in a full fledged inquiry or the inquiry that may be admissible under the rules or regulations or the legal source, statement made by some witness, in a preliminary inquiry exparte cannot form the basis for imposition of penalty.
7. Learned Counsel for the petitioner contended while referring to the statement of the workman produced at Annexure-E to the petition that the workman was given an opportunity to crossexamine the reporter, Shri B R Dindor, who held the preliminary inquiry and was examined as a witness in a departmental inquiry, but the workman refused to avail of the opportunity of crossexamining him. Banking upon the said refusal, it is contended that in fact opportunity was given, but not availed by the workman and therefore the tribunal ought not to have interfered with the punishment imposed upon the workman.
Page 3 of 5HC-NIC Page 3 of 5 Created On Sat Aug 12 04:09:12 IST 2017 C/SCA/7793/2016 ORDER 7.1 It is required to be appreciated that the initial burden of establishing a charge against the workman was on the petitioner-employer. The incident did not take place in presence of Shri B R Dindor and thus it was rightly held by the Tribunal that in absence of knowledge of the incident with him, the evidence of Shri B R Dindor was of no consequence. Such an opportunity therefore is no opportunity in the eye of law and therefore, if the workman in his wisdom refused to avail of such an opportunity, it cannot be said that the opportunity was lost by him. The question is not merely of an opportunity, but that of bringing home the charge by leading legally acceptable evidence. Therefore, even if workman refused to cross examined Shri B R Dindor, the fact remains that even by evidence of Shri B R Dindor, charge was not brought home. The argument therefore must fail and is rejected.
8. Learned Counsel for the petitioner argued that the conclusions drawn by the inquiry officer produced at Exh.9/16 were sufficient enough to bring home the guilt of the respondent No.1-workman. That the said aspect was not considered by the tribunal and thus serious error was committed. As indicated above, the departmental proceedings taken against the workman was bereft evidence and conclusions rendered in such proceedings could not have helped the petitioner any further. Therefore, the said contention is also rejected.
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9. In above view of the matter, there is no reason for this Court to interfere in the findings rendered by the tribunal under Article 227 of the Constitution of India. The petition therefore, fails and is rejected. Notice is discharged.
(G.R.UDHWANI, J.) sompura Page 5 of 5 HC-NIC Page 5 of 5 Created On Sat Aug 12 04:09:12 IST 2017