Gujarat High Court
Gujarat State Road Transport ... vs Dayabhai Lavjibhai Rohit on 7 March, 2005
Author: D.N. Patel
Bench: D.N. Patel
JUDGMENT D.N. Patel, J.
1. Rule. Learned counsel Mr. Rathod waives service of notice of Rule on behalf of the respondents. At the request of the learned counsel for the rival parties, this petition is taken up for final hearing.
2. This petition has been preferred against the award dated 7th August, 2004 in Reference (LCN) No. 134 of 1997 passed by the Labour Court, Nadiad, whereby the Labour Court has awarded 50% back wages to the respondent workman by stopping two increment without permanent effect.
3. The learned counsel for the petitioner Corporation mainly submitted that there are several issues upon which the impugned award can be said to be perverse and de hors the provisions of the Industrial Disputes Act, 1947. It is also submitted by him that the charge upon the respondent-workman who was a conductor, that he collected fare from the passengers, part thereof was deposited with the petitioner Corporation, whereas remaining amount of fare was utilised by the conductor for his personal use. This tantamounts to misappropriation. This was the charge levelled against the respondent workman by the petitioner Corporation and upon holding an inquiry, the services of the respondent workman were brought to an end. During the course of departmental inquiry, it was admitted by the respondent workman that what is stated in the charge-sheet is true and correct. It is also stated by the respondent workman during the course of inquiry that he neither wants to examine any witness nor he wants to present any documentary evidence against the charges. In fact, the Labour Court, Nadiad has also arrived at a conclusion that the inquiry was validly and legally conducted against the workman and the conclusions arrived at by the Inquiry Officer as to the proof of charges are true and correct. It is submitted by the learned counsel for the petitioner that if the aforesaid misconduct is proved during the course of departmental inquiry, the punishment awarded by the petitioner of termination of services of the respondent workman with effect from 29th January, 1996 is absolutely adequate and in consonance with the nature of misconduct. By no stretch of imagination, it can be said that it was unreasonable, excessive and shockingly disproportionate and therefore, the award passed by the Labour Court, quashing and setting aside the punishment awarded by the petitioner Corporation is absolutely unwarranted and uncalled for and dehors the facts and provisions of I.D. Act., 1947. The substitution of punishment by the Labour Court by stopping two increments without future effect is absolutely a meagre one and misplaced sympathy has been shown by the Labour Court. It is also submitted by the learned counsel for the petitioner that there are as many as 99 defaults committed by the respondent workman. The present one is a 100th default. Therefore, the Labour Court ought not to have interfered with the quantum of punishment which was adequately given by the petitioner. It is also submitted by the learned counsel for the petitioner that the conclusion arrived at by the Labour Court that there is only a negligence on the part of the respondent workman in not depositing the amount. The conclusion is not based upon evidence on record. On the contrary, the evidence on record, if read minutely, establishes guilt of the respondent workman. Even in the departmental inquiry, the respondent workman has accepted the facts stated in the charge-sheet. It was also stated by the respondent workman that he does not want to examine any witness or lay any evidence against the charge referred in the charge-sheet. It is also submitted by the learned counsel for the petitioner that the Labour Court has oversimplified the misconduct by labelling it as a temporary misappropriation. This adjective and labelling by the Labour Court is oversimplification of the misconduct of the respondent workman. In fact, had these facts been not brought to the notice of the respondent workman, the respondent workman would not have deposited the amount which, though he had collected from the passengers, had not deposited with the petitioner ST Corporation. It is also submitted by the learned counsel for the petitioner that merely because the amount which is collected from the passengers is deposited by the respondent workman lateron with the petitioner Corporation, the gravity of misconduct cannot be said to have diluted at all. Considering the nature of misconduct, it is grave in nature. The inquiry was conducted legally. It is also mentioned in the award that there is no irregularity or illegality in the inquiry. On the contrary, it is held by the Labour Court that the conclusions arrived at by the Inquiry Officer Nadiad are true and correct. In his submission, with this set of facts, the Labour Court ought not to have substituted the punishment awarded by the petitioner. Considering the punishment, it cannot be said that the punishment awarded by the petitioner Corporation is disproportionate to the misconduct of the respondent workman. On the contrary, punishment of dismissal, in such cases is adequate, just and proper and therefore, the award passed by the Labour Court, Nadiad deserves to be quashed and set aside.
4. In support of his arguments, the learned counsel for the petitioner has relied upon the judgment delivered by the Hon'ble Supreme Court in the case of Janatha Bazar (South Kanara Central Cooperative Wholesale Stores Ltd.) and Ors. v. Secretary, Sahakari Noukarara Sangha and Ors. reported in (2000) 7 SCC, 517 and the judgment delivered by the Division Bench of this Court in the case of GSRTC v. Kachraji Motiji Parmar reported in 1993(1) GLR, page 302.
5. The learned counsel for the respondent workman mainly submitted that looking to the nature of misconduct, the punishment of dismissal is absolutely unreasonable, excessive and highly disproportionate to the nature and misconduct. In fact, out of total fare collected, lesser amount was deposited with the petitioner and that is the only charge against the respondent workman and therefore, the punishment of dismissal was more than necessary and therefore, rightly, altered by the Labour Court in exercise of the powers conferred by section 11-A of the Industrial Disputes Act, 1947. It is also submitted by the learned counsel for the respondent that there was also a negligence on the part of the cashier of the petitioner Corporation and while receiving money from the respondent workman, the cashier of the petitioner Corporation has not properly verified the amount and subsequently, it was found that Rs. 1019.50 ps. was not deposited by the respondent workman. No sooner did this fact was brought to the notice of the respondent, immediately the said amount was deposited and hence, the award passed by the Labour Court, Rajkot should not be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India and therefore, this petition may not be entertained.
4. Having heard the learned counsel for the rival parties and considering the documents on record, in my opinion, the award dated 7th August, 2004 in Reference (LCN) No. 134 of 1997 passed by the Labour Court, Nadiad deserves to be quashed and set aside for the following reasons.
(i) Looking to the nature of misconduct committed by the workman, the punishment of dismissal from service awarded by the petitioner Corporation was absolutely just, proper and adequate. The charge levelled against the respondent workman was that out of total fare collected from passengers, the respondent workman had deposited part thereof with the petitioner Corporation and remaining amount was utilised for his personal use. Therefore, looking to the nature of misconduct, the punishment of dismissal awarded by the petitioner, after holding an inquiry on 29th January, 1996 was absolutely just and adequate and interference by the Labour Court was uncalled for and unwarranted.
(ii) It is also an admitted position of fact that a departmental inquiry was conducted and an opportunity of being heard was also given to the respondent workman.During the course of inquiry, it was admitted by the respondent workman that the facts stated in the charge-sheet are true and correct. It was also stated by the respondent workman during the course of inquiry that the respondent workman is not inclined to lay any evidence against the charge-sheet nor the respondent workman has shown his willingness to examine any witness against the facts stated in the charge-sheet and therefore, it was concluded by the Labour Court that adequate opportunity of being heard was given during the course of inquiry. There is no procedural irregularity in holding the departmental inquiry and it is also held by the Labour Court, while discussing issue No. 2 that the conclusion arrived at by the Inquiry Officer was true and correct. In view of the aforesaid facts, it was absolutely improper for the Labour Court, Nadiad to interfere with the quantum of punishment. Misappropriation, once proved, punishment of dismissal was absolutely adequate. The Labour Court, ought not to have substituted the said punishment by stoppage of two increments without future effect and by awarding 50% back wages to the respondent workman. This was misplaced sympathy shown to the respondent workman by the Labour Court. Misplaced sympathy shown to the delinquent tantamounts to a threat to innocent persons.
(iii) The Labour Court, Nadiad has held in its award that this is a case of simple negligence on the part of the respondent workman. This conclusion arrived at by the Labour Court is de hors the facts. There was a clear charge against the respondent workman that there was a re-writing and overwriting in CWA submitted by the respondent conductor and the amount which was not deposited with the petitioner Corporation was utilised by the respondent for his personal use. The charge is referred by the Labour Court while discussing issue No. 2. During the course of inquiry, the said charge has been accepted by the respondent workman. There are as many as 99 defaults of the respondent workman in past. The present default is a 100th default. These facts speak volumes about the misconduct of the respondent workman. The respondent workman was handling public money. Defaults and especially misappropriation ought to be punished adequately. This aspect of the matter has not been properly appreciated by the Labour Court. The amount misappropriated may be large or small. The punishment is not always for the amount misappropriated, but the punishment is for the nature of misconduct. The nature of misconduct, that is, misappropriation of the amount is grave in nature. Though the amount was collected from the passengers, the said amount was not deposited by the respondent workman with the petitioner Corporation. For this, the punishment of dismissal, awarded after holding a departmental inquiry was absolutely just and proper and in consonance with the nature of misconduct of the respondent workman. Interference therein by the Labour Court in exercise of powers under Section 11-A of the Industrial Disputes Act, 1947 by substituting the same by stoppage of two increments without any future effect is, in my opinion, an over-exercise of powers conferred upon the Labour Court. Too much leniency is not a proper exercise of powers, but if the punishment inflicted by the employer is in consonance with the misconduct, especially, when there is a misappropriation, the Labour Court ought to have refrained itself from interfering with the quantum of punishment, especially when this was the 100th default on the part of the respondent workman-conductor.
(iv) The Division Bench of this Court in the case of Gujarat State Road Transport Corporation v. Kachraji Motiji Parmar reported in 1993(1) GLR, para 302 has also held that power under section 11A to be exercised judicially and Labour Court can interfere with the decision of the management only when the punishment imposed is highly disproportionate to the degree of guilt of the workman. Relevant paras 5 and 6 of the said judgment read as under:
"5. Lastly, we would refer to the decision of the Supreme Court in the case of the State of Punjab and Ors. v. Ram Singh, Ex. constable, JT 1992(4) SC 253, wherein the Court observed while interpreting Rule 16.2(1) of the Punjab Police Manual, 1934, Vol II, wherein the Court observed that a single act of corruption is sufficient to award an order of dismissal under the Rule as gravest act of misconduct. The relevant observations of the Court are as under:
"Take for instance the delinquent that put in 29 years of continuous length of service and had unblemished record; in 30th year he commits defalcation of public money or fabricates also records to conceal misappropriation. He only committed once. Does it mean that he should not be inflicted with the punishment of dismissal but be allowed to continue in service for that year to enable him to get his full pension. The answer is obviously No. Therefore, a single act of corruption is sufficient to award an order of dismissal under the rule as gravest act of misconduct."
6. In the present case, it is apparent that the Labour Court has misdirected itself and has misplaced sympathy though the workman has committed grave misconduct. He has designedly re-issued 15 used tickets. This would indicate that the workman had planned it in advance to collect the tickets from the passengers with a view to re-issue the same in the next trip. Not only this, but the workman in the present case has not issued tickets to the two passenger even though he had collected the fare from them. Further, he has not issued tickets to three passengers and lastly he has punched some tickets in such a manner so that they can be re-issued in subsequent trip. This conduct on the part of the workman establishes beyond any doubt that the act of the workman was pre-planned and well designed to misappropriate the Bus far amount. Apart from this aspect, there was no reason for the Labour Court to ignore the fact that the workman was involved in 44 default cases and on one occasion he was removed from service. In this view of the matter, in our view, the order passed by the Labour Court is on the face of it unreasonable and unjustified. The Labour Court ought to have held that in the facts and circumstances of the case, this was not a fit case for exercise of jurisdiction under Section 11A of the Act."
In the present case also, the respondent workman has recovered the amount from passengers and has not deposited with the petitioner Corporation and therefore, quantum of punishment i.e. dismissed from service, awarded by the petitioner was absolutely just and adequate. It is also held by the Hon'ble Supreme Court in the case of Janatha Bazar (South Kanara Central Cooperative Wholesale Stores Ltd.) and Ors. v. Secretary, Sahakari Noukarara Sangha and Ors. reported in (2000) 7 SCC, 517 that once an act of misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employees in service. Law on this point is well settled. Relevant para-6 of the said judgment reads as under:
"6. As stated above, the learned Single Judge and the Division Bench in writ appeals confirmed the findings given by the Labour Court that charges against the workmen for breach of trust and misappropriation of funds entrusted to them for the value mentioned in the charge-sheet had been established. After giving the said findings, in our view, the Labour Court materially erred in setting aside the order passed by the management removing the workmen from service and reinstating them with 25% back wages. Once an act of misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employees in service. Law on this point is well settled. (Re: Municipal Committee, Bahadurgarh v. Krishnan Behari). . In U.P. SRTC v. Basudeo Chaudhary this Court set aside the judgment passed by the High Court in a case where a conductor serving with U.P. State Road Transport Corporation was removed from service on the ground that the alleged misconduct of the conductor was an attempt to cause loss of Rs. 65 to the Corporation by issuing tickets to 23 passengers for a sum of Rs. 2.35 but recovering @ Rs. 5.35 per head and also by making entry in the waybill as having received the amount of Rs. 2.35 which figure was subsequently altered to Rs. 2.85. The Court held that it was not possible to say that the Corporation removing the conductor from service has imposed a punishment which is disproportionate to his misconduct. Similarly in Punjab Dairy Development Corporation Ltd. v. Kala Singh this Court considered the case of a workman who was working as a Dairy Helper-cum-Cleaner for collecting milk from various centres and was charged for the misconduct that he inflated the quantum of milk supplies in the milk centres and also inflated the quality of fat contents where there were less fat contents. The Court held (at SCC pp.161-62, para 4) that in view of the proof of misconduct a necessary consequence will be that the management had lost confidence that the workman would truthfully and faithfully carry on his duties and consequently the Labour Court rightly declined to exercise the power under Section 11-A of the ID Act to grant relief with minor penalty."
Thus, in the aforesaid case, the punishment of dismissal upset by awarding 50% back wages was held as not proper. It was held in the aforesaid case that punishment of dismissal was absolutely just and adequate. Thus, in the present case, punishment awarded by the petitioner was absolutely just and proper and was not shockingly disproportionate so as to warrant the interference by Labour Court, in exercise of powers under section 11-A of the I.D. Act, 1947. In the facts and circumstances of the present case, the punishment of dismissal substituted with 50% back wages with stoppage of two increments without any future effect is misplaced sympathy shown by the Labour Court. As a result, the award passed by the Labour Court deserves to be quashed and set aside.
6. In view of the aforesaid facts and circumstances and judicial pronouncements of the Hon'ble Supreme Court as well as of this Court, this court should interfere with the impugned award in exercise of powers under Articles 226 and 227 of the Constitution. In the result, the award dated 7th August, 2004 in Reference (LCN) No. 134 of 1997 passed by the Labour Court, Nadiad is hereby quashed and set aside. The punishment of dismissal from service awarded by the petitioner Corporation to the respondent workman is held to be just, proper, adequate and in consonance with nature of misconduct. It is further held that there was no need for the Labour Court to interfere with the punishment of dismissal awarded by the petitioner Corporation to the respondent, in exercise of powers conferred under Section 11-A of the Industrial Disputes Act, 1947. Rule made absolute accordingly with no order as to costs.