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2024 DIGILAW 319 (GUJ)

Divisional Controller v. Aminsha R. Fakir

2024-02-15

MAUNA M.BHATT

body2024
JUDGMENT : 1. Petitioner-Gujarat State Road Transport Corporation has filed this petition with the following prayers: “7(A) This Honourable Court be pleased to issue a writ of certiorari or any other appropriate writ, order or direction in the form of certiorari or any other appropriate writ, order or direction calling for the records and proceedings of Reference (I.T.) No.214 of 2012 and after perusing the same be pleased to quash and set aside the award and order dated 20.06.2015, published on 09.09.2015, passed by the Industrial Tribunal in Reference (I.T.) No.214 of 2012; (B) During the admission, pendency and final disposal of this petition be pleased to stay the operation, implementation and execution of the award and order dated 20.06.2015, published on 09.09.2015, passed by the Industrial Tribunal in Reference (I.T.) No.214 of 2012; (C) Be pleased to award the cost of this petition. (D) Any other and/or further relief/s that may deem fit looking to the facts and circumstances of the case may be granted to the petitioner.” 2. Facts, referred in the petition, are as under : The respondent-workman was working with the petitioner-corporation as Conductor. For the misconduct, he was subjected to departmental inquiry and after completion of the inquiry proceedings, he was inflicted with penalty of lowest of time scale by an order dated 22.11.1985. Aggrieved by the penalty, respondent-workman preferred Civil Suit No.1093 of 1992, which came to be allowed. The petitioner-corporation preferred First Appeal challenging an order passed in the Civil Suit, which was dismissed. When the corporation preferred Second Appeal before this Court, this Court allowed the Second Appeal filed by the Corporation and remanded the matter to the District Court. District Court thereafter on 05.06.2007 held that Civil Court has no jurisdiction and permitted the workman to avail appropriate remedy under the provision of the Industrial Disputes Act. Pursuant to which, the workman raised dispute registered as Reference (I.T.) No.214 of 2012. Upon adjudication, the Industrial Tribunal, Jamnagar modified the order of penalty from putting the respondent-workman in the lowest of time scale to stoppage of three increments without future effect. It was also directed that the petitioner shall pay the amount within a period of 30 days. Aggrieved by modification of the penalty vide award dated 20.06.2015, the present petition is filed. 3. Heard Mr.H.S.Munshaw, learned advocate for the petitioner-corporation and Ms.Hina Desai, learned advocate for the respondent-workman. 4. It was also directed that the petitioner shall pay the amount within a period of 30 days. Aggrieved by modification of the penalty vide award dated 20.06.2015, the present petition is filed. 3. Heard Mr.H.S.Munshaw, learned advocate for the petitioner-corporation and Ms.Hina Desai, learned advocate for the respondent-workman. 4. Mr.H.S.Munshaw, learned advocate for the petitioner-corporation submitted that the judgment and award of the Labour Court is erroneous since the same was entertained after a delay of 30 years. Against the order of penalty dated 22.11.1985, reference was partly allowed in the year 2015 and therefore, this petition may be allowed on the ground of delay and latches. 4.1 Further, the workman, chose the wrong Forum and ignorance of law is not a ground and therefore, substitution of penalty by award dated 20.06.2015 deserves to be quashed and set aside. 4.2 On merits, the workman was charge-sheeted for keeping unpunched tickets in his bag. The workman had not challenged the inquiry proceedings in the Reference and when the inquiry was not challenged, the scope of judicial review with regard to quantum of punishment is very minimal and thereby, Industrial Tribunal has erred in modifying the penalty by substituting its own findings. 4.3 There were ample evidences to prove the charges and after having considered the misconduct, the Disciplinary Authority had passed the penalty order, the same being not disproportionate, deserves no interference by the Reference Court. 4.4 The charges were of misappropriation of money and of grave nature and therefore, considering the gravity of charges, reduction of punishment was not appropriate. He submitted that stoppage of three increments without future effect is no penalty and in case of misappropriation, some higher penalty is required to be imposed. He submitted to impose some higher penalty. 5. On other hand, Ms.Hina Desai, learned advocate for the respondent-workman submitted that, from the year 1985 to 2001, proceedings were pending before Civil Court, Rajkot. For the first time thereafter, the workman was told to approach the appropriate Forum and therefore, no fault can be found of the workman. It is not the case where the workman was sleeping over his rights. In this case, the workman was pursuing but since he was not aware about legal proceedings, he approached the Industrial Tribunal after the District Court judgment dated 05.06.2007 and therefore, there was no delay as alleged. It is not the case where the workman was sleeping over his rights. In this case, the workman was pursuing but since he was not aware about legal proceedings, he approached the Industrial Tribunal after the District Court judgment dated 05.06.2007 and therefore, there was no delay as alleged. 5.1 On the aspect of inquiry proceedings she submitted that the same was not challenged, however the findings of the inquiry officer was challenged by the workman and therefore, interference by the Industrial Tribunal cannot be faulted. 5.2 She submitted that in relation to quantum of punishment imposed, Industrial Tribunal had observed that though the allegations were of unpunched tickets, the same were not found from his bag and therefore, considering the evidence on record, Industrial Tribunal had rightly modified the penalty by exercising power under Section 11A of the Industrial Disputes Act. The Tribunal modified penalty by awarding stoppage of three increments without future effect and therefore, no interference is called for. 6. Considered the submissions and documents on record. From the award, it is noticed that GSRTC lead several documentary evidence, where there was list of unpunched tickets. So far as unpunched tickets were concerned, from the statement of Officer of the Corporation, it was evident that the unpunched tickets were found from the bag of the workman. It is true that inquiry proceedings were been challenged by the workman, however, the findings have been challenged and therefore, the Tribunal have considered the evidence placed on record. 7. So far as delay is concerned, this Court is of the opinion that after order of District Court on 05.06.2007, the workman approached Industrial Tribunal, Rajkot. Therefore, for the proceedings pending before Civil Court till 2007, no fault can be found of the workman. However, considering the misconduct, which was in relation to misappropriation of money and particularly when the workman was working as Conductor of the Bus, honest approach is the first and foremost requirement, which the Corporation expects from its employees. Therefore, for the proceedings pending before Civil Court till 2007, no fault can be found of the workman. However, considering the misconduct, which was in relation to misappropriation of money and particularly when the workman was working as Conductor of the Bus, honest approach is the first and foremost requirement, which the Corporation expects from its employees. It is true that the scope of judicial review in relation to quantum of punishment is very less however, considering the evidence led by the Corporation that there were certain unpunched tickets found from the bag of the workman and being supported by the statement of Officer of the Corporation one Mr.Dhirajlal J. Pandya, this Court is of the opinion that punishment modified by Industrial Tribunal is such that it would amount to no punishment. It is evident that the corporation has placed report of checking inspector, unpunched tickets, statement of checking inspector and response, which were exhibited. It is not the case where principles of natural justice are not followed. Considering the misconduct, which is in nature of misappropriation of public money, this Court is of the opinion that penalty modified by the Industrial Tribunal is no penalty and it would meet the ends of justice, if the penalty of stoppage of three increments without future effect is modified, and instead that penalty of stoppage of three increments with future effect is imposed. 8. This order is passed in the facts and circumstances of this case and shall not be treated as precedent. 9. Since the award of the Industrial Tribunal is modified to the aforesaid extent, difference of salary and arrears shall be paid to the respondent-workman within a period of three months from the date of receipt of this order. Rule is made absolute to the aforesaid extent.