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2022 DIGILAW 1702 (GUJ)

COMMISSIONER v. JIVANBHAI KANJIBHAI PARMAR

2022-12-06

NIRZAR S.DESAI

body2022
JUDGMENT : NIRZAR S. DESAI, J. 1. Heard learned advocate Mr. K.V. Gadhia for the petitioner and learned advocate Ms. Alka B. Vaniya for the respondent. Considering the controversy involved in this petition, the petition is taken up for final hearing with the consent of both the sides. 2. RULE. Learned advocate Ms. Alka Vaniya waives service of notice of rule on behalf of respondent no. 1. 3. By way of this petition, the petitioner has challenged the award dated 19.03.2018 passed by the Industrial Tribunal, Rajkot (for short ‘the Tribunal’) in Ref. (IT) No. 115 of 2011, whereby the Tribunal reduced the punishment of compulsory retirement imposed by the petitioner and altered to stoppage of one increment without future effect and further directed the petitioner to treat the respondent-work men service as continuous service and to pay full back wages and all retrial benefits by partly allowing the reference as the respondent-workman had attained the age of superannuation during the pendency of reference case. 4. The brief facts arising to this petition are stated as under: 4.1 The respondent-workman was a union leader and protected employee and pursuant to a departmental enquiry vide order dated 22.12.2010, he was compulsorily retired by the petitioner. In the departmental enquiry, it was alleged by way of charge-sheet that the petitioner was behaving irresponsibly on 13.10.2008, at around 04:30 in the afternoon, he was speaking abusive language loudly and abused various officers and thereafter started chanting Ramdhun in the loby. There was also a police complaint against the respondent-workman alleging that the respondent-workman not only abused the officer but also tried to forcibly enter the chamber of the Commissioner. The workman was thereafter chargesheeted vide charge-sheet dated 20.05.2009, and ultimately by way of an order dated 22.12.2010, he was compulsorily retired after the departmental enquiry. Challenging the aforesaid action, the respondent-workman preferred a Reference IT No. 115 of 2011 before the Tribunal, Rajkot, in that reference the validity of the enquiry was also challenged and the Tribunal, vide order dated 01.01.2016, held that the departmental enquiry to be legal and valid. 4.2 The respondent-workman challenged the aforesaid order, wherein the departmental enquiry held to be legal by way of Special Civil Application no. 8256 of 2016. 4.2 The respondent-workman challenged the aforesaid order, wherein the departmental enquiry held to be legal by way of Special Civil Application no. 8256 of 2016. However, this Court vide order dated 16.06.2016, passed in SCA No. 8256 of 2016, dismissed the petition by confirming the order of the Tribunal holding the departmental enquiry to be legal and valid. Thereafter, the Industrial Tribunal proceeded with Ref. (IT) No. 115 of 2011 and ultimately by partly allowing the reference reduced the punishment of compulsory retirement to stoppage of one increment without future effect but as the respondent-workman had during the pendeny of reference attained the age of superannuation passed an order that his service till the date of superannuation be treated as continuous service and a further direction was issued to pay full back wages and all other retrial consequential benefits. The aforesaid order was passed on 19.03.2018, by the Industrial Tribunal, Rajkot below Exh.65 in Ref. IT No. 115 of 2011, which is subject matter of challenge by way of this petition. 5. Heard learned advocate Mr. Gadhiya for the petitioner and learned advocate Ms. Vaniya for the respondent-workman. 6. Learned advocate Mr. Gadhiya while assailing the award under challenge submitted that once the enquiry was held to be legal and valid by the Industrial Tribunal and the aforesaid order having been confirmed by this Court vide order dated 16.06.2016 in SCA No. 8256 of 2016 it was not open for the Industrial Tribunal to re-examine the findings of the enquiry report and to hold that enquiry was defective. He further submitted that once having held that the enquiry was legal and valid and the same findings has been confirmed by this Court, the only question that was left open for the labour Court was to examine whether the punishment imposed upon the workman was shockingly disproportionate or not. 6.1 Mr. Gadhiya submitted that instead of examining the question about the quantum of punishment the Tribunal re-appreciate the entire evidence and by recording certain witnesses were not present at the time when the alleged incidence which laid to the departmental enquiry took place and certain witness did not depose individually but their collective evidence was considered. 6.1 Mr. Gadhiya submitted that instead of examining the question about the quantum of punishment the Tribunal re-appreciate the entire evidence and by recording certain witnesses were not present at the time when the alleged incidence which laid to the departmental enquiry took place and certain witness did not depose individually but their collective evidence was considered. The Tribunal has tried to encroach upon the arena of evidence which was ultimately put to rest by this Court by confirming the findings of the enquiry by holding the enquiry to be legal and valid. 6.2 Mr. Gadhiya submitted that there is no doubt that Tribunal has power to alter the punishment in case the Tribunal comes to the conclusion that the punishment be shockingly disproportionate, for that also the Tribunal is required to give cogent reasons and the said exercise can be carried out by expressly mentioning that the Tribunal is exercising it powers under Section 11(A). In the instant case, while altering the punishment imposed upon the respondent-workman the Tribunal has considered the merit of the matter and without stating in the order as to what weighed with the Tribunal which may be considered to be shockingly disproportionate while considering the punishment imposed upon the respondent-workman. Therefore, the impugned order is bad and required to be quashed and set aside. 7. Learned advocate Mr. Gadhiya for the petitioner in support of his contentions placed reliance upon the case of Management of Bharat Heavy Electricals Ltd. vs. M. Mani with Management of Bharat Heavy Electricals Ltd. vs. T.A. Mathivanan in C.A. No. 10766 of 2013 and the allied matters. In its decision dated 09.11.2017. Learned advocate submitted that once the Labour Court held that the departmental enquiry was legal and proper and the same is upheld by this Court the only question that could be said to have survived for consideration of Labour Court was the punishment of compulsory retirement imposed by the petitioner was legal and proper and the only area which may call for interference was the quantum of punishment. He submitted that any interference with the aforesaid quantum of punishment could be under Section 11(A) only and once while altering the punishment if the Labour Court has not resorted to its powers under Section 11(A), the impugned order can be said to be bad as per law. He submitted that any interference with the aforesaid quantum of punishment could be under Section 11(A) only and once while altering the punishment if the Labour Court has not resorted to its powers under Section 11(A), the impugned order can be said to be bad as per law. 7.1 He further relied upon the judgment of Hon’ble Supreme Court dated 01.02.2008 reported in Employers Management West Bokaro Colliery of TISCO Ltd. vs. Conerned Workman, Ram Pravesh Sinh, 2008 LLR 432 and by relying upon para. 16 of the said judgment he submitted that, in absence of a challenge of the legality or fairness of the domestic enquiry, the Court should be reluctant to either interfere with the findings recorded by the Enquiry Officer or the punishment awarded by the Punishing Authority. 7.2 By relying upon both these judgments, learned advocate Mr. Gadhiya submitted that once the enquiry was held to be legal and valid and the same has been upheld by this Court, while passing the order dated 16.06.2016 in SCA No. 8256 of 2016, it is not open for the Labour Court to re appreciate the evidence and in absence of there being any special circumstances which could shock the conscious of the Court, it was not open for the Court to interfere with the punishment imposed by altering stoppage of one increment and directing the petitioner to take full back wages and all consequential benefits. Hence, he prayed for quashing and setting aside the impugned order. 8. Learned advocate Ms. Vaniya appearing for the workman vehemently opposed the petition, and submitted that the punishment imposed for a misconduct of chanting Ramdhun outside the chamber of Municipal Commissioner is disproportionate as compared to the offence alleged against the workman. She submitted that other charges against the respondent-workman were about insubordination and speaking abusing language against the higher officer, which would not warrant punishment of compulsory retirement. Therefore, the Labour Court has rightly altered the punishment to the stoppage of one increment without future effect. However, she could not dispute the fact that when the criminal complaint was registered against the workman for the aforesaid offence, he has been convicted by the competent Court and the aforesaid conviction has not been stayed though it has been challenged. 8.1 During the course of arguments, learned advocate Mr. However, she could not dispute the fact that when the criminal complaint was registered against the workman for the aforesaid offence, he has been convicted by the competent Court and the aforesaid conviction has not been stayed though it has been challenged. 8.1 During the course of arguments, learned advocate Mr. Ghadiya, has also pointed out to this Court that the retirement dues of the respondent-workman has already been paid till the date of compulsory retirement. Even that aspect could not be disputed by learned advocate Ms. Vaniya. 8.2 Learned advocate Ms. Vaniya submitted that considering the fact that the present respondent was a union leader and therefore he has been falsely implicated to the departmental enquiry and once the Labour Court has rightly gone into the merits of the departmental enquiry and therefore, the punishment altered by the Labour Court cannot be said to be illegal or improper and therefore, the petition is required to be dismissed. 9. Having heard learned advocates for the respective parties and perused the record and the judgments relied upon by learned advocate Mr. Gadhiya. Learned advocate Ms. Vaniya did not relied upon any of the judgment. Upon perusal of the record, it indicates that the genuineness and validity of the enquiry was examined by the Labour Court and vide order dated 01.01.2016, the Labour Court held that the enquiry was legal and proper. The said findings was under challenge by way of SCA No. 8256 of 2016. However, vide order dated 16.06.2016, the aforesaid petition was dismissed by the coordinate Bench, confirming the view taken by the Labour Court that the departmental enquiry was just legal and proper. Therefore, the only question left for consideration of Labour Court was to examine the quantum of punishment. The record indicates that while considering the reference finally the labour Court not only considered the merits of the enquiry and tried to re-appreciate the evidence, while altering the punishment from compulsory retirement to stoppage of one increment without future effect the Labour Court did not grant any cogent reasons nor there is any provisions under which the Labour Court is exercising the powers of reducing/ altering the punishment imposed upon the workman. The Labour Court instead of examining the aspect of whether the punishment imposed was shockingly disproportionate as compared to the misconduct alleged or not, or examined the aspect by taking into consideration about the fact that during interregnum period the respondent-workman was once served for a period of 15 days and two sons of the respondent-workman are residing separately. 9.1 Further, no cogent reasons are assigned by the Labour Court for altering the punishment imposed upon the respondent-workman and to reduce it to stoppage of one increment without future effect and by granting full back wages with all consequential benefits. Further, even while altering the punishment of respondent-workman the Labour Court has not stated anything about under which provisions of law, the Labour Court is empowered to do so. Hence, the Labour Court has not even stated about it, or on what basis the Labour Court deems it appropriate to exercise the aforesaid powers. 9.2 Considering the fact that the Hon’ble Supreme Court in the case of Employees Management West Bokaro (Supra) has categorically held in Para-16 of the judgment also by relying upon the judgment in case of U.P. State Road Transport Corporation vs. Vinod Kumar, 2008 LLR 121, categorically held that Court should be reluctant either to interfere with the findings of the enquiry or the punishment imposed by the competent authority. I am of the view that without assigning proper and cogent reasons when the Labour Court has altered the punishment imposed to the respondent-workman by appreciating the evidence of the departmental enquiry. The aforesaid order cannot be said to be legal order, therefore, interference of this Court is required. 10. Resultantly, the impugned order dated 19.03.2018, passed by the Industrial Tribunal, Rajkot in Reference (IT) No. 115 of 2011, cannot sustain and hence the same is required to be quashed and set aside. Rule made absolute. No order as to cost.