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2014 DIGILAW 150 (GUJ)

DIVISIONAL CONTROLLER v. DEVJI MESURBHAI CHAVDA

2014-01-31

N.V.ANJARIA

body2014
JUDGMENT : RULE. Learned advocate Mr. Mukesh H. Rathod waives service of notice of Rule on behalf of respondent No.1. 1.1 Upon request and as per the consent of both learned advocates for the parties, the petition is taken up for final consideration, making Rule returnable forthwith. Respondent No.2, the Labour Court, which passed impugned judgment and award and hence it, being a formal party as such, service of notice of Rule to it is dispensed with. 2. Preferred by the Gujarat State Road Transport Corporation through Divisional Controller, the present petition is directed against judgment and award dated 9th April, 2013 passed by Industrial Tribunal No.1, Rajkot in Reference (I.T.) No.88 of 2003. By the said judgment and award, the Industrial Tribunal held that the order of penalty dated 23rd August,2002 passed by the petitioner Corporation, stopping seven yearly increments of the respondent work man with future effect was illegal. Setting aside the same, the Tribunal further directed that the Corporation shall make good monetary loss suffered by the workman because of the said penalty. 3. The respondent was serving as a conductor. He was charge sheeted for the misconduct committed by him on 27.06.1999 while on duty as conductor in the bus, plying between Junagadh to Visavadar. The charge was that he collected fare without issuance of tickets to the passengers in the bus. As per the case of the Corporation, a regular departmental inquiry was held, wherein the charges were held to be proved and as a result, the punishment of stopping seven yearly increments with permanent effect was imposed on him. The workman raised industrial dispute invoking jurisdiction of the Industrial Tribunal seeking to set aside the order of penalty and further praying for payment of arrears of the monetary loss suffered. 4. Heard learned advocate Mr. Hardik Rawal for the petitioner and learned advocate Mr. Mukesh H. Rathod for the respondent. 5. The Labour Court, while setting aside the penalty, came to the conclusion that before imposition of penalty on the workman, it was not showed by the employer that any departmental inquiry was held. It was so held because despite having given opportunities, the first party Corporation failed to produce the papers relating to the inquiry conducted against the workman. 5. The Labour Court, while setting aside the penalty, came to the conclusion that before imposition of penalty on the workman, it was not showed by the employer that any departmental inquiry was held. It was so held because despite having given opportunities, the first party Corporation failed to produce the papers relating to the inquiry conducted against the workman. It appears as mentioned by the Tribunal that though Exh.12 application was filed by the second party workman, seeking production of the papers relating to the inquiry and the punishment, no such documents were produced by the employer Corporation, nor any reason was given for non production, nor any affidavit was filed. Therefore, the Tribunal drew adverse inference and passed the award setting aside the penalty. 5.1 As against above view taken by the Tribunal, it was pointed out from the record that the workman had filed Exh.15 Pursis and thereunder, he gave up the contention regarding procedural legality and fairness of the inquiry. In that context, it was submitted by learned advocate for the Corporation that as the procedural legality of the inquiry was accepted, it amounted to tacit admission by the workman that the inquiry was actually held against him. Drawing adverse inference by the Tribunal was not justified, it was submitted. On the other hand, learned advocate for the respondent supported the impugned judgment and award by emphasizing that it was the duty of the Corporation to produce the papers of the inquiry to prove the case. 6. It was pointed out by learned advocates that the workman is going to retire on 31st May, 2014. In light of the said fact and having regard to the aspects of the matter highlighted above, both learned the advocates proceeded to make broad suggestions in their submissions. 7. There is no denial of the fact that the Corporation failed to produce the inquiry papers. No reason was furnished. Nobody was examined, nor any evidence was led to prove the justification for non production of the inquiry papers. At the same time, the workman himself having forgone the contention regarding procedural legality and validity of the inquiry, it is possible to conclude that the inquiry was actually held. 8. No reason was furnished. Nobody was examined, nor any evidence was led to prove the justification for non production of the inquiry papers. At the same time, the workman himself having forgone the contention regarding procedural legality and validity of the inquiry, it is possible to conclude that the inquiry was actually held. 8. In the above compass of the matter and considering the nature of misconduct which was alleged against the workman and proved in the inquiry, it would be appropriate and apposite that the workman undergoes some lesser penalty, instead of stoppage of seven years increments with permanent effect imposed by the Corporation. Penalty of stoppage of three increments with future effect would serve the ends of justice in the facts and circumstances of the case. 9. The impugned judgment and award stands modified and substituted accordingly to the said extent. The arrears becoming payable to the workman by virtue of above shall be paid by the Corporation within eight weeks from today from the date of receiving of certified copy of this order. 10. Rule is made absolute to the extent above.