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2002 DIGILAW 102 (GUJ)

SOMNATH TRUST v. YASHVANT J. PATHAK

2002-02-05

RAVI R.TRIPATHI

body2002
RAVI R. TRIPATHI, J. ( 1 ) ). RULE. Mr. S. A. Sheikh, learned Advocate, appears and waives service of Rule on behalf of the respondent-workman. ( 2 ) WITH the consent of the learned advocate appearing for both the parties, the matter is taken up for final disposal. ( 3 ) THE present petition is filed for quashing and setting aside the order dated 30/08/2000 passed by the Labour Court, Junagadh, in Reference (LCJ) No. 149 of 1991 published on 19th March, 2001, whereby, the order dated 17/06/1991 dismissing the respondent-workman from service is quashed and set aside and respondent-workman is ordered reinstatement on his original post with continuity of service with 40% of back wages with costs of Rs. 1500=00. ( 4 ) THE case of the petitioner-trust is that one vyas Kanaiyalal Shiv Shanker made a complaint to the Secretary-General Manager of the trust that he had paid a sum of Rs. 121=00 to the respondent-workman and he issued receipt only for Rs. 21=00 and that is how, he misappropriated a sum of Rs. 100=00. ( 5 ) MR. Prabhakar Upadhyay, learned advocate appearing for the petitioner-trust, invited the attention of the Court to the discussion in Point No. 2 in the judgement and award of the Labour Court. The wife of the complainant, Kanaiyalal Shiv Shanker, was examined as supporting witness. The complainant himself was examined before the inquiry officer. The Labour Court rejected the deposition of the wife on the ground that she cannot be said to be an independent witness. It is surprising that if the husband and wife goes to a temple and pay some amount to the clerk for pooja, what other witness is expected to depose in their favour. It is not the case of the respondent-workman that the complainant or his wife had any enemity with the respondent-workman and, therefore, they were falsely deposing against him. In view of that, the reasoning of the Labour Court is thoroughly misconceived and is required to be rejected. It is not the case of the respondent-workman that the complainant or his wife had any enemity with the respondent-workman and, therefore, they were falsely deposing against him. In view of that, the reasoning of the Labour Court is thoroughly misconceived and is required to be rejected. ( 6 ) IN view of the judgement of the Apex Court in the matter of Janatha Bazar (South Kanara Centarl Cooperative Wholesale Stores Ltd.) and others v. Secretary, Sahakari Noukarara Sangha and others reported in (2000) 7 SCC 517 , wherein the Honourable Apex Court was pleased to hold the scope of judicial review under section 11a of the Industrial Disputes Act where charge of misappropriation is established in the domestic inquiry and the delinquent employee is dismissed, the Labour Court ought to have directed reinstatement. The Honourable Court also held that even if past record is without blemish, if it a proved case of misappropriation, no sympathy is called for. The Honourable Apex Court was pleased to observe as under in para 6 of the judgement:"6. . . . . 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. . . . . "the Honourable Apex Court was pleased to observe as under in para 7:"7. IN view of the aforesaid settled legal position, the High Court materially erred in confirming the directions given by the Labour Court in reinstating the respondent workmen with 25% back wages. For giving the aforesaid direction, the Labour Court considered that there is no evidence regarding past misconduct by the employees and, therefore, it can be observed that they have rendered several years of service without any blemish and to some extent, there was lapse on the part of the management". ( 7 ) IN yet another case, in the matter between Gujarat State Road Transport Corporation v. Prakash Ganesh Tankaria, in Civil Appeal No. 5630 of 2000, the Honourable Apex Court while dealing with the case of a conductor of a State Road Transport Corporation was pleased to observe as under:". . . . THE respondent thereupon filed a suit which was decreed on the ground that the passengers whose statements had been recorded had not been examined. this has been affirmed by the lower appellate court and the High Court. . . . THE respondent thereupon filed a suit which was decreed on the ground that the passengers whose statements had been recorded had not been examined. this has been affirmed by the lower appellate court and the High Court. Hence this appeal. We find that the basic premise of decreeing the suit and upholding the same in appeal is incorrect. It was not incumbent upon the departmental authorities to examine the passengers. In matter like the present where conductors are being proceeded against on the allegation of non charging of fares and non issuance of tickets, it is well nigh impossible at the later time to secure the presence of those passengers. . . . . " ( 8 ) IN the result, this petition is allowed. Rule is made absolute. No order as to costs. .