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2016 DIGILAW 462 (GUJ)

Divisional Controller v. C. S. Parmar

2016-02-25

K.M.THAKER

body2016
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Raval, learned advocate for the petitioner and Mr. Songara, learned advocate for Mr.G.K. Rathod, learned advocate for the respondent-workman. 2. RULE. Mr. Songara, learned advocate has waived service of rule for the respondent-workman. 3. In the facts and circumstances of the case and at the request of learned advocate for the petitioner and with consent of learned advocate for the respondent, the petition is heard and decided finally today. 4. The petitioner has challenged the award dated 24.04.2013 passed by learned Industrial Tribunal, Vadodara in Reference (IT) No. 58/08, whereby the learned Tribunal has interfered with the order of penalty passed by the employer imposing penalty of stoppage of two increments with permanent effect in case where the respondent-workman was found to be negligent in performance of his duty as driver inasmuch as while on duty he met with an accident and in the said accident two persons (i.e. scooter driver and pillion ride) died in the said accident. After conducting domestic inquiry, where the Inquiry Officer found that the charge levelled against the respondent-workman is proved, the disciplinary authority imposed penalty of stoppage of seven increments with permanent effect. The said penalty was reduced by the Departmental Appellant Authority who reduced the penalty and imposed penalty of stoppage of four increments with permanent effect. The respondent-workman was not satisfied with the said reduction in penalty by Departmental Appellant Authority, and therefore, he raised industrial dispute, which was referred for adjudication. The reference was registered as Reference (IT) No. 58/2008. In the proceedings, the respondent-workman challenged legality and propriety of the domestic inquiry. Therefore, the learned Tribunal decided the said issue as preliminary issue/objection and vide order dated 18.07.2012, the Court held that the inquiry was legal and proper and was conducted in fair manner. Thereafter, the learned Tribunal decided the respondents grievance against the order of penalty. After considering the evidence on record and rival submissions by the contesting parties, the learned Tribunal reached to the conclusion that the penalty of stoppage of four increments with permanent effect imposed by the Departmental Appellant Authority is harsh. The learned Tribunal considered it appropriate to interfere with the said order and penalty and the learned Tribunal reduced the quantum of penalty to stoppage of two increments with permanent effect. The petitioner-Corporation is aggrieved by the said decision. Hence, present petition. 5. Mr. The learned Tribunal considered it appropriate to interfere with the said order and penalty and the learned Tribunal reduced the quantum of penalty to stoppage of two increments with permanent effect. The petitioner-Corporation is aggrieved by the said decision. Hence, present petition. 5. Mr. Raval, learned advocate for the petitioner submitted that when the learned Court held that the domestic inquiry is legal and fair and even the learned Tribunal found that the inquiry was not defective in any manner and inquiry officers report holding that the charge is proved and order of penalty (which was disputed by the respondent-workman) was passed after such legal and fair inquiry and in light of the consideration and findings by the inquiry officer, then in such circumstances, the learned Tribunal ought not have interfere with the decision as regards the quantum of penalty. 6. Learned advocate for the petitioner submitted that the accident occurred on account of the negligence in performance and duty and on account of rush driving, wherein two persons lost their lives. Learned advocate for the petitioner relied on the decision in case of Cholan Roadways Ltd. versus Thirugnanasambandam, reported in AIR 2005 SC 570 and the decision in case of U.P. State Road Transport Corporation versus Vinod kumar, reported in (2008) 1 SCC 115 to support the contention that when the factum of accident and factum of death of two persons is established and when the learned Motor Accident Claims Tribunal has awarded compensation holding, inter lia, that drivers negligence was responsible for the accident, then in that event, factum of respondents negligence in performance of duty ought to have been accepted by the learned Tribunal. Learned advocate for the petitioner also submitted that in cases, where the inquiry is found to be legal and fair, then in such circumstances, the learned Labour Court or Tribunal would not interfere with the quantum of penalty. He supported the said submission in light of the decision in case of U.P. State Road Transport Corporation (Supra). 7. Learned advocate for the petitioner submitted that the impugned order may be set aside and the order passed by the Departmental Appellate Authority may be restored. 8. Mr. Songara, learned advocate for the respondent opposed the petition and the submissions by learned advocate for the petitioner. 7. Learned advocate for the petitioner submitted that the impugned order may be set aside and the order passed by the Departmental Appellate Authority may be restored. 8. Mr. Songara, learned advocate for the respondent opposed the petition and the submissions by learned advocate for the petitioner. He submitted that while it is true that the learned Tribunal has found that the inquiry was conducted in legal and fair manner, however, learned Tribunal also held that the findings are perverse. He submitted that the learned Tribunal has considered it appropriate to reduce the quantum of penalty imposed by the Departmental Appellate Authority on the ground that the penalty is harsh and that therefore, the said decision by the learned Tribunal may not be interfered with. 9. Any other submission is not made by learned advocate for the petitioner and learned advocate for the respondent. 10. In present case, below mentioned factual aspects are not in dispute:-- "(A) on the date of accident the respondent-workman was on duty and he was driving the bus involved in the accident. (B) The said accident occurred as the bus collided with a scooter and two persons (i.e. scooter driver and the pillion rider) died in the accident. (C) The heirs and legal representatives of the deceased had instituted claim petition before the Motor Accident Claim Tribunal, wherein the learned Tribunal found that the bus driver was negligent and awarded compensation. (D) Of course, in criminal proceedings, the workmen is acquitted. (E) In view of the accident, the Corporation had instituted departmental proceedings by issuing charge-sheet for misconduct including the misconduct of negligence in performance of the duty. (F) Pursuant to the charge-sheet, domestic inquiry was conducted, wherein reasonable and sufficient opportunity of hearing and defence was granted to the respondent. (G) On conclusion of the domestic inquiry, the Inquiry Officer submitted his findings/report, wherein the Inquiry Officer held, inter alia, that the allegations and charge levelled against the respondent-workmen are proved. (H) The Departmental Appellate Authority considered the findings of the Inquiry Officer and the material available on record of the domestic inquiry and the findings of the Inquiry Officer. The disciplinary authority found itself in agreement with the conclusion of the Inquiry Officer and passed order of penalty imposing penalty of stoppage of seven increments with permanent effect. (H) The Departmental Appellate Authority considered the findings of the Inquiry Officer and the material available on record of the domestic inquiry and the findings of the Inquiry Officer. The disciplinary authority found itself in agreement with the conclusion of the Inquiry Officer and passed order of penalty imposing penalty of stoppage of seven increments with permanent effect. (I) The Departmental Appellate Authority refused the penalty of stoppage of four increments with permanent effect. (J) The learned Tribunal held that the departmental inquiry was conducted in legal and fair manner. (K) The learned Tribunal also recorded observation and finding in the impugned award that from the material on record, it emerges that bus driver as well as driver of the scooter were responsible for the accident. (L) The learned Tribunal also found that the default card reflected that during his past service, the respondent was involved in two accident cases." 11. Having recorded the said findings, the learned Tribunal also, simultaneously, recorded that the findings of the Inquiry Officer are perverse. 12. The said conclusion was recorded only on the ground that the during inquiry proceedings any eye witness (witness to the accident) and/or any passenger was not examined, and that therefore, the findings of the Inquiry Officer are perverse. 13. The said observations and conclusion by the learned Tribunal is contrary to and without having regard to the decision by the Hon'ble Apex Court in case of State of Haryana v. Rattan Singh ( AIR 1977 SC 1512 ), wherein Hon'ble Court observed that:-- "5. Reliance was placed, as earlier stated, on the non-compliance with the departmental instruction that statements of passengers should be recorded by inspectors. These are instructions of prudence, not rules that bind or vitiate in the violation. In this case, the Inspector tried to get the statements but the passengers declined, the psychology of the latter in such circumstances being understandable, although may not be approved. We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the re-evaluation of the evidence on the strength of co-conductor's testimony is a matter not for the court but for the administrative tribunal. In conclusion, we do not think the courts below were right in over-turning the finding of the domestic tribunal." 14. Likewise, the re-evaluation of the evidence on the strength of co-conductor's testimony is a matter not for the court but for the administrative tribunal. In conclusion, we do not think the courts below were right in over-turning the finding of the domestic tribunal." 14. Merely because any passenger and/or any witness to the accident was not examined, it will not render the findings of the Inquiry Officer perverse. Moreover, the learned Tribunal has considered it appropriate to impose penalty (though reduced from what departmental authority imposed). 15. Which fact makes it clear that even the labour Court found the workman responsible for and involved in the accident and guilty of the charge of misconduct levelled against him. Otherwise, would not have imposed/allowed any penalty. 16. In that view of the matter also, the said observation and finding by the learned Tribunal cannot be sustained. 17. Therefore, observation and finding that the Inquiry Officers conclusion are perverse is set aside. 18. Now, the question is with regard to the legality and propriety of learned Tribunal to interfere with the quantum of penalty. 19. The Hon'ble Division Bench of this Court has held in case of Gujarat State Road Transport Corporation versus Prabhashanker K. Acharya, reported in 1992 (2) G.L.H. 354 that in reference cases where the departmental inquiry is conducted in legal and fair manner and the charge of misconduct is proved, the learned Labour Court or learned Tribunal does not have jurisdiction to interfere with the quantum of penalty which is short of/less than penalty of dismissal or discharge. 20. In this view of the matter, order passed by the learned Tribunal is passed by exercising jurisdiction conferred under Section 11(A) of the Act in contrary manner and the impugned award suffers from error of law and jurisdiction inasmuch as the learned Tribunal has transgressed the jurisdiction and authority conferred on and available to the Court under the Act. 21. At this stage, it would be appropriate to take into account observations by Hon'ble Apex Court in case of Cholan Roadways Ltd. versus Thirugnanasambandam in Paragraph Nos. 20 and 21, which reads thus:-- "20. The tribunal while exercising its jurisdiction under Section33(2)(b) of the Industrial Disputes Act was required to bear in mind the aforementioned legal principles. 21. At this stage, it would be appropriate to take into account observations by Hon'ble Apex Court in case of Cholan Roadways Ltd. versus Thirugnanasambandam in Paragraph Nos. 20 and 21, which reads thus:-- "20. The tribunal while exercising its jurisdiction under Section33(2)(b) of the Industrial Disputes Act was required to bear in mind the aforementioned legal principles. Furthermore, in a case of this nature the probative value of the evidence showing the extensive damages caused to the entire left side of the bus; the fact that the bus first hit the branches of a tamarind tree and then stopped at a distance of 81 ft. therefrom even after colliding with another bus coming from the front deserved serious consideration at the hands of the tribunal. The nature of impact clearly demonstrates that the vehicle was being driven rashly or negligently. 21. Res ipsa loquitur is a well-known principle which is applicable in the instant case. Once the said doctrine is found to be applicable the burden of proof would shift on the delinquent. As noticed hereinabove, the enquiry officer has categorically rejected the defence of the Respondent that the bus was being driven at a slow speed." 22. It world also be appropriate to refer to the observations by Hon'ble Apex Court in Paragraph No. 10 of the decision in case of U.P. State Road Transport Corporation (Supra), which reads thus:-- "10. As stated in the preceding paragraphs, the respondent had confined his case only to the conclusions reached by the Enquiry Officer as well as the quantum of punishment. Therefore, since the respondent had not challenged the correctness, legality or validity of the enquiry conducted, it was not open to the Labour Court to go into the findings recorded by the Enquiry Officer regarding the misconduct committed by the respondent. This Court in a number of judgments has held that the punishment of removal/dismissal is the appropriate punishment for an employee found guilty of misappropriation of funds; and the Courts should be reluctant to reduce the punishment on misplaced sympathy for a workman. That, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment. That, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment. Without burdening the judgment with all the judgments of this Court on this point, we may only refer to a recent judgment in Divisional Controller, N.E.K.R.T.C. v. H. Amaresh, 2006 (6) SCC 187 , wherein this Court, after taking into account the earlier decisions, held in para 18 as under:-- "In the instant case, the mis-appropriation of the funds by the delinquent employee was only Rs. 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of mis-appropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka State Road Transport Corporation v. B.S. Hullikatti, (2001) 2 SCC 574 was also relied on in this judgment among others. Examination of the passengers of the vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a mis- conduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum." 23. Having regard to the above quoted observations, the impugned award passed by the learned Tribunal cannot be sustained. 24. The award suffers from error of law and jurisdiction. The learned tribunal while passing the impugned award transgressed the jurisdiction and exercised jurisdiction in arbitrary and unjust manner. There was no justification to interfere with the penalty imposed by the departmental authority. The departmental authority had already reduced the penalty imposed by first disciplinary authority. 25. The learned Tribunal also ignored the fact that in the fatal accident, two persons lost their lives. 26. In such case, lenient view would contribute in increasing instances of negligence. The award passed by the learned Tribunal is an instance of undue, undeserving and misplaced sympathy. 27. The award, therefore, cannot be sustained. 28. Consequently, the impugned award is set aside and the order passed by the departmental authority is restored. With the aforesaid observations, present petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.