Gujarat High Court
Gujarat State Road Transport ... vs Fajlu Raheman Saiyad Raheman Pathan on 23 August, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/9873/2018 JUDGMENT DATED: 23/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9873 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GUJARAT STATE ROAD TRANSPORT COPORATION
Versus
FAJLU RAHEMAN SAIYAD RAHEMAN PATHAN
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Appearance:
MR HS MUNSHAW (495) for the Petitioner
MR GK RATHOD( 2386) with MS ANURADHA G RATHOD (7717) for the
Respondent
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 23/08/2022
ORAL JUDGMENT
1. RULE. Learned Advocate Mr.G.K.Rathod waives service of Rule on behalf of the respondent.
2. This petition under Articles 226 /227 of the Constitution Page 1 of 10 Downloaded on : Sun Dec 25 00:04:42 IST 2022 C/SCA/9873/2018 JUDGMENT DATED: 23/08/2022 of India is filed with following prayer:-
"B Be pleased to allow this Special Civil Application by way of passing appropriate orders, writ, mandamus or directions or writ of certiorari quashing and setting aside the award dated 2.1.18 delivered by the Hon'ble Labour Court at Ahmedabad in Ref. (LCA) No.453/15 awarding reinstatement in service without back wages annexed as ANNEXURE-I in the interest of justice.
3. Learned Advocate for the petitioner-Corporation submitted that the respondent was serving as a conductor with the petitioner-Corporation and while on route from Modasa-Dungarpur, the checking team found that the respondent did not issue tickets to 14 passengers though he collected ticket fare from them. It is submitted that in this regard, statements of passengers as well as the respondent were taken and a detailed report was submitted by the checking squad. Considering the seriousness of incident, a charge sheet levelling charges of non-issuance of tickets after collection of ticket fare of a huge amount was issued to the respondent. It is submitted that a full fledged departmental inquiry was held against the respondent and he was given opportunity to represent his case. It is submitted that charges levelled against the respondent were proved in the departmental inquiry.Page 2 of 10 Downloaded on : Sun Dec 25 00:04:42 IST 2022
C/SCA/9873/2018 JUDGMENT DATED: 23/08/2022
3.1 It is submitted that the respondent was dismissed from service on 10.06.1999 and the first appeal filed by him was also rejected on 09.05.2000. It is submitted that the Reference was filed after 15 years thereafter and there was no satisfactory and convincing explanation or documentary evidence for this inordinate delay.
3.2 It is submitted that compliance of the impugned award would be nothing but a reinstatement in service after 19 years of dismissal order and it would burden the administration and public at large. It is submitted that in the past also, there were 4 defaults in which he was penalized, which aspect is also not considered by the Labour Court, though default card was placed. 3.3 It is submitted that recently, this Court has allowed Special Civil Application No.16415 of 2016, wherein there was delay in filing Reference against the vary petitioner-Corporation.
4. As against this, learned Advocate for the respondent submitted that the petitioner cannot raise ground of delay as the respondent had departmentally filed first appeal, which was rejected, but the respondent was never given the intimation. Therefore, the respondent was prevented from filing the reference. It is submitted that till date, the petitioner-Corporation has not reinstated nor paid any wages under Section 17B of the Industrial Page 3 of 10 Downloaded on : Sun Dec 25 00:04:42 IST 2022 C/SCA/9873/2018 JUDGMENT DATED: 23/08/2022 Disputes Act.
4.1 It is submitted that the respondent did not admit the offense in the departmental inquiry initiated against him. His date of birth is 15.11.1964. The deposition of Shri N.R.Shah as the Reporter was recorded. He has stated in the cross examination that if identification parade is conducted, he cannot identify the passengers as long period has passed. Moreover, the Checking Inspector has recorded the statements of the passengers. The examination of the respondent is done in questionnaire form. The same is against S.T. procedure and principle of natural justice. It is further submitted that the Inquiry Officer, in the findings, has not provided any reason for not admitting the affidavit submitted by the respondent. The charge against the respondent is considered to be proved merely relying on the report of the reporter. 4.2 It is submitted that the respondent is an educated man and has studied B.Com. LL.B. He is to retire on 30/11/2022. No charges of theft or misappropriation have been proved against him. He has not been punished in any incident in the past. It is mandatory to check the cash in the case of misappropriation. The Checking Officer has illegally obtained the confession.
5. Having heard learned Advocates for the parties and having perused documents on record, it appears that the Page 4 of 10 Downloaded on : Sun Dec 25 00:04:42 IST 2022 C/SCA/9873/2018 JUDGMENT DATED: 23/08/2022 respondent was the employee of the petitioner-Corporation and was serving as a conductor. While on duty on 22.04.1998 on route to Modasa-Dungarpur, checking squad of the petitioner- Corporation intercepted the bus and carried out checking, where it was noticed that several passengers were without tickets though they had made payment of fare.
6. The respondent was thereafter issued a show cause notice on quantum of penalty and ultimately was dismissed from service by order dated 10.06.1999. This order came to be challenged by the respondent by filing Reference (LCA) No.435 of 2015 before the Labour Court, Ahmedabad praying for quashing and setting aside the dismissal order. The Labour Court allowed the Reference by award dated 02.01.2018 and directed reinstatement of the respondent with back wages.
7. It also appears that the defense put forth by the respondent cannot be considered as checking was done in his presence. The statements of the passengers who were without ticket were recorded in his presence and he has signed on each statement. Since the passengers were illiterate, their thumb impressions were obtained. Considering it, amount of Rs.13.50 +36.00 = 49.50 was recovered from 3 + 8 passengers, traveling from Mala to Dungarpur and ticket was not issued till the checking place. The checking authority is a responsible officer and it cannot Page 5 of 10 Downloaded on : Sun Dec 25 00:04:42 IST 2022 C/SCA/9873/2018 JUDGMENT DATED: 23/08/2022 happen under any circumstances that he would initiate proceeding considering 11 passengers are without ticket while 3 passengers were without ticket who were not issued ticket after recovering the amount of fare. There cannot be any reason to do so. Hence, the details submitted in the affidavit raise suspicion. Moreover, it cannot be believed that the passengers who were issued ticket, would keep it safe for eight months i.e. till the date of affidavit. It appears that they obtained ticket from other passengers who had tickets and submitted the same in the affidavit. The remaining three passengers, traveling from Sayra to Dungarpur were without ticket. Hence, they have confessed and asked to recover fine from the passengers. This defense cannot be considered because the aforesaid service is local service and stoppages are there in short distance, hence ticket is to issued immediately after giving entry in the bus. However, the respondent has not issued ticket to the passengers timely. His fundamental duty is to issue ticket to the passengers and he cannot escape from this responsibility by asking to recover fine from the passengers. Upon perusing his way bill 468764, it becomes clear that the aforesaid passengers were without tickets. The entire process of checking was conducted in presence of checking inspectors. Moreover, the respondent stated that he had issued tickets to 38 passengers. The respondent has stated that he will issue ticket to the remaining three passengers if he thinks about it. Upon considering it, it appears that the Page 6 of 10 Downloaded on : Sun Dec 25 00:04:42 IST 2022 C/SCA/9873/2018 JUDGMENT DATED: 23/08/2022 respondent has not shown any seriousness for issuing tickets to the passengers in local service timely and thus shown carelessness. It clearly appears on the basis of the statements of the passengers that at the time of checking, total 14 passengers of three different groups were not issued ticket at their boarding place, after recovering the amount of Rs.106.00 as fare from them. As the statement of the passengers who were without tickets are recorded at the spot during the checking and the same is recorded in presence of the Conductor, the same is the main evidence and therefore, there is no doubt regarding the reliability of the same. The passengers of these two groups are illiterate. As the Conductor on duty has studied B.A. and LL.B., he has tried to take advantage of their illiteracy and has shown negligence in discharging his fundamental duty as a Conductor. It also appears that if the bus would have not been checked, these 14 passengers who were without tickets would have made the journey and the Corporation would have lost the fare amount of Rs.106-50 paisa and it would result in the misappropriation by the Conductor on duty. There were 38 passengers with tickets in the bus during the checking. Considering the small number of the passengers, there would have been no difficulty to collect the fare amount from them and give them ticket.
8. The incident under inquiry is dated 22.04.1998. After Page 7 of 10 Downloaded on : Sun Dec 25 00:04:42 IST 2022 C/SCA/9873/2018 JUDGMENT DATED: 23/08/2022 inquiry, the respondent was dismissed on 10.06.1999. The respondent filed departmental appeal, which was dismissed on 09.05.2000 and Reference was filed in 2015. The explanation offered that the respondent was waiting for communication on his departmental appeal, which in the opinion of the Court is erroneously accepted by the Labour Court as it cannot be comprehended that the respondent, who is a Law Graduate, would wait for 14 years without any answer from the petitioner on his appeal.
9. In case of U.P.State Road Transport Corporation Vs. Ram Singh & Anr., reported in (2008) 17 SCC, 627, in para-7, it is held as under:-
"7. We are of the view that in the facts and circumstances of the case, the High Court erred in not setting aside the award of the Labour Court. Apart from the unacceptable manner in which the appellant was denied the opportunity of participating in the proceedings, including being debarred from cross- examining the respondent, the Labour Court should not have entertained the industrial dispute given the enormous delay. This Court has in several decisions held that while delay cannot by itself be sufficient reason to reject an industrial dispute, nevertheless the delay cannot be unreasonable. The decision in Prakash Chandra Sahu has reaffirmed this principle. The reason for diligence and promptness lies in the fact that Page 8 of 10 Downloaded on : Sun Dec 25 00:04:42 IST 2022 C/SCA/9873/2018 JUDGMENT DATED: 23/08/2022 the records pertaining to an employee might have been destroyed and it would be difficult to obtain witnesses who would be competent to give evidence so many years later if the Labour Court wishes to hold a further enquiry into the matter. In the present case the delay of 13 years is unreasonable. The mere fact that the respondent was making repeated representations would not justify his raising the issue before the Labour Court after 13 years. In any event the last representation was made in 1983 and the industrial dispute was admittedly raised in 1986. The lack of diligence on the part of the respondent is apparent."
9.1 In case of State of Karnataka & Anr. Vs. Ravi Kumar, reported in (2009) 13 SCC, 746, in paras-7, 8 and 9, it is held as under:-
"7. In this case the respondent did not choose to challenge the termination for 14 years. Merely because some other daily wagers had got some relief, he belatedly approached the High Court in 1998.
8. The writ petition was dismissed with an observation that the respondent was at liberty to make an application seeking reference. The contention of the respondent that reference was made on the direction of the High Court is not therefore correct. As the reference was stale, it ought to have been rejected on that ground alone.
9. It is not possible to expect the Asstt. Executive to prove after 14 years that the daily wager did not work Page 9 of 10 Downloaded on : Sun Dec 25 00:04:42 IST 2022 C/SCA/9873/2018 JUDGMENT DATED: 23/08/2022 or that he did not work for 240 days in a year or that the daily wager voluntarily left the work. Further when the State Government was not a party before the Labour Court, the respondent could not implead the State Government as a party in the writ petition challenging the award, nor can the High Court grant any relief against the State Government."
10. The Labour Court has not at all referred to Exh.35, which is a default card of the respondent, which is placed at Annexure-J herein. Hence, the Labour Court has disregarded a relevant aspect of previous conduct brought on record to show that the respondent is involved in 4 previous defaults.
11. Insofar as claim to Section 17B of the Industrial Disputes Act is concerned, there is nothing on record in form of affidavit that the respondent was not gainfully employed anywhere else.
12. For the foregoing reasons, the petition is allowed. The impugned award of the Labour Court dated 02.01.1018 in Reference (LCA) No.453 of 2015 is hereby ordered to be set aside. Rule is made absolute. No order as to costs.
Sd/-
(A.Y. KOGJE, J) SHITOLE Page 10 of 10 Downloaded on : Sun Dec 25 00:04:42 IST 2022