Gujarat High Court
Divisional vs Sukhdev on 13 April, 2011
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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SCA/1502/2006 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1502 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as 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 ?
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DIVISIONAL
CONTROLLER - Petitioner
Versus
SUKHDEV
DAHYALAL PANDYA - Respondent
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Appearance :
MR
HS MUNSHAW for the Petitioner.
MR MUKESH H RATHOD for the
Respondent.
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 01/09/2010
ORAL
JUDGMENT
1. By way of this petition under Article 227 of the Constitution of India, the petitioner Gujarat State Road Transport Corporation, has prayed for an appropriate writ, order and/or direction, quashing and setting aside the impugned judgement and award dated 29/09/2005 passed by the Industrial Tribunal, Rajkot in Reference (I.T.) No.148 of 2002, by which, the learned Tribunal has partly allowed the said Reference by quashing and setting aside the order of punishment imposed by Second Appellate Authority of withholding of increments for 5 years with permanent future effect and substituting the same by stoppage of increments for 2 years without any permanent future effect.
2. A Departmental inquiry was initiated against the respondent, who was serving as Conductor for non-issuance of tickets to the passengers, though the amount of fare was recovered from the passengers. On conclusion of the departmental inquiry, charge and misconduct alleged against the respondent for non-issuance of the tickets to the passengers, though the fare was collected, came to be established and proved and after giving an opportunity to the respondent, respondent came to be dismissed from service. Being aggrieved by and dissatisfied with the order of dismissal passed by the Disciplinary Authority, the respondent preferred First Appeal before the First Appellate Authority and the First Appellate Authority partly allowed the said First Appeal by substituting order of dismissal into stoppage of yearly increments for 9 years with permanent future effect.
Being aggrieved by and dissatisfied with the order passed by the First Appellate Authority, the respondent preferred Second Appeal before the Second Appellate Authority and Second Appellate Authority further reduced punishment upto stoppage of increments for 5 years with permanent future effect.
Being aggrieved by and dissatisfied with the same, the respondent raised Industrial dispute, which was referred to Industrial Tribunal, Rajkot, which was numbered as Reference (I.T.) No.148/2002. In exercise of power under Section 11-A of the Industrial Disputes Act, the Industrial Tribunal further interfered with order of punishment of stoppage of increments for 5 years with permanent future effect by substituting stoppage of increments for 2 years without future permanent future effect. Being aggrieved by and dissatisfied with the order passed by the Industrial Tribunal, the petitioner has preferred the present petition under Article 227 of the Constitution of India.
3. Mr.Chauhan, learned advocate appearing for Mr.Munshaw, learned advocate appearing on behalf of the petitioner has vehemently submitted that having proved and established the charge of non-issuance of the tickets, though the fare was collected, came to be proved and when even the order of dismissal was substituted to stoppage of increments for 5 years with permanent future effect, the Tribunal is not justified in interfere with the order passed by the Second Appellate Authority, in exercise of power under Section 11-A of the Industrial Disputes Act. It is submitted that the Tribunal has not considered the earlier default, which was 20 in numbers while exercising power under Section 11-A of the Industrial Disputes Act and, therefore, it is requested to allow the present Special Civil Application.
4. Mr.Mukesh Rathod, learned advocate appearing on behalf of the respondent has tried to support the impugned judgement and award passed by the Tribunal by submitting that on appreciation of evidence and looking to the allegation levelled against the respondent-workman more particularly the observation that if the rading party came after 2 to 3 minutes, in between the respondent-conductor might have issued the tickets to the passengers and considering the above, Industrial Tribunal interfered with the order of punishment and reduced the punishment upto stoppage of increments for 2 years without permanent future effect, is not required to be interfered with by this Court in exercise of power under Article 227 of the Constitution of India, and, therefore, it is requested to dismiss the present petition.
5. Heard the learned advocates appearing on behalf of the respective parties at length. It is not in dispute that in departmental inquiry, charge and misconduct of non-issuance of tickets to the passengers, though the fare was collected, came to be established and proved. The Tribunal has also confirmed the same. However, Tribunal interfered with the order of punishment imposed by Second Appellate Authority by which the order of punishment of dismissal imposed by Disciplinary Authority which was further modified and substituted by the First Appellate Authority for stoppage of increment for 9 years with permanent future effect, came to be reduced to stoppage of increments for 5 years with permanent future effect. It appears that the Tribunal has interfered with the same in exercise of power under Section 11-A of the Industrial Disputes Act. It is to be noted that there are 20 defaults in the account of the respondent inclusive of non-collecting fares as well as non-issuance of tickets though fare was collected. Once charge and misconduct of non-issuance of tickets to the passengers, though the fare was collected, came to be proved in the departmental inquiry and Second Appellate Authority imposed punishment of stoppage of increments for 5 years with permanent future effect, the Tribunal has materially erred in interfering with the same in exercise of power under Section 11-A of the Industrial Disputes Act, which warrants interference of this Court in exercise of power under Article 227 of the Constitution of India.
6. For the reasons stated hereinabove, the petition succeeds and the impugned judgement and order passed by the Industrial Tribunal, Rajkot dated 29/09/2005 in Reference (IT) No.148 of 2002 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No costs.
[M.R.SHAH,J] *dipti Top