Gujarat High Court
Bhavnagar Municipal Corporation vs Afzalbhai Husenbhai on 2 February, 2021
Bench: A. P. Thaker
C/SCA/1339/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1339 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
============= ==== == == == == = == == == == == == == == == == == == === ==
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
============= ==== == == == == = == == == == == == == == == == == == === ==
BHAVNAGAR MUNICIPAL CORPORATION
Versus
AFZALBHAI HUSENBHAI
============= ==== == == == == = == == == == == == == == == == == == === ==
Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR ANKUR Y OZA(2821) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1
============= ==== == == == == = == == == == == == == == == == == == === ==
CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 02/02 / 2 0 2 1
ORAL JUDGMENT
1. This petition is filed by Bhavnagar Municipal Corporation
under Articles 226 and 227 of the Constitution of India
challenging the award passed by Labour Court, Bhavnagar, in
Reference (IT) No.18 of 1998 dated 31.3.2008, whereby the
penalty of stoppage of two increments with permanent effect has
been set aside and the petitioner has been directed to release
C/SCA/1339/2009 JUDGMENT
requisite amount including the amount for the period of
suspension.
2. It is vehemently submitted that the Labour Court has
committed serious error of facts and law in allowing the petition
of the workman as he was serving as Class-IV, Sepoy, and it was
his duty to see that area of mutton market is kept clean. It is the
main contention of the Corporation that workman was irregular
in his attendance and several notices were issued against him
and opportunity of being heard was given to him, however, he
did not reply to any of the notices and remained absent. It is also
contended that, after due departmental inquiry, punishment of
stoppage of two increments with permanent effect has been
imposed by the Corporation, which is in consonance with legal
provisions and proper in the facts of the case. It is also
submitted that there is callous approach of the workman and he
was remaining absent in his duty. It is also alleged that even
when the Commissioner has visited the sight, the workman was
found absent. It is also submitted that during the course of
departmental inquiry necessary opportunity was given to the
workman and after perusing the material, inquiry officer has
ultimately opined that continuous absence has been proved
against the workman. Therefore, necessary order of punishment
of stoppage of two increments with future effect was passed.
According to the petitioner, the Labour Court has committed
serious error of facts and law in allowing reference as it is the
discretion of the administrative authority to impose penalty upon
its employee after following due process of law. It is also
submitted that there is no illegality or perversity in the order
passed by the Corporation regarding stoppage of two increments
with permanent effect.
C/SCA/1339/2009 JUDGMENT
3. Heard Mr.Munshaw, learned advocate for the petitioner
and Mr.A.Y.Oza, learned advocate for the workman at length
through video conferencing.
4. Main contention of Mr.Munshaw is that the notices were
issued to the workman for not attending his work and yet no
improvement was shown by the workman. He has also
submitted that no explanation was given by the workman to
various notices and, therefore, the Corporation has initiated
departmental inquiry against him and, ultimately, after giving an
opportunity of being heard, punishment of stoppage of two
increments with permanent effect was imposed. According to
Mr.Munshaw, punishment is not disproportionate to the charge
and the Labour Court has over-reached in exercising the power
in favour of the workman. According to him, when the inquiry
was proper, there was no need to interfere by the Labour Court
even while exercising powers under Section 11-A of the
Industrial Disputes Act. Mr.Munshaw has relied upon the
decision in the case of West Bokaro Colliery (Tisco Ltd.) v.
Ram Pravesh Singh reported in (2008) 3 SCC 729 in support
of his submission that under Section 11A of the Act, Labour
Court or the Industrial Tribunal cannot act as if it were an
appellate body. It has been observed by the Supreme Court that
when two views are possible on evidence, the Labour Court
should be very slow in interfering with the finding arrived at in
the domestic inquiry and the standard of proof in domestic
inquiry is preponderance of probabilities and not beyond
reasonable doubt. It is also observed by the Supreme Court that
the Tribunal or the Labour Court may not interfere with the
findings of domestic inquiry on the ground that there was
independent evidence, apart from management witnesses. In the
C/SCA/1339/2009 JUDGMENT
said decision, in paragraph 15, the Supreme Court has referred
to paragraph 9 its earlier decision in the case of Divl.
Controller, KRSTC v. A.T.Mone reported in (2005) 3 SCC 254,
wherein it was held as under:-
"9. From the above it is clear once a domestic tribunal based on
evidence comes to a particular conclusion normally it is not open to the
appellate tribunals and courts to substitute their subjective opinion in
the place of the one arrived at by the domestic tribunal. In the present
case, there is evidence of the inspector who checked the bus which
establishes the misconduct of the respondent. The domestic tribunal
accepted that evidence and found the respondent guilty. But the
courts below misdirected themselves in insisting on the evidence of the
ticketless passengers to reject the said finding which, in our opinion,
as held by this Court in the case of Rattan Singh (supra) is not a
condition precedent. We may herein note that the judgment of this
Court in Rattam Singh's (supra) has since been followed by this Court
in Devendra Swamy vs. Karnataka State Road Transport Corporation
(2000) 9 SCC 644."
4.1 In view of above, Mr.Munshaw prayed to allow present
petition by setting aside the impugned award passed by Labour
Court, Bhavnagar.
5. Per contra, Mr.A.Y.Oza, learned advocate for the workman,
while referring to the award as well as material placed on record,
has submitted that there is no perversity or illegality committed
by the Labour Court in passing the award in favour of the
workman. He has also submitted that so-called notices were
issued in the year 1991 and 1992, however, till 2003 no action
was taken. While referring to the report of the inquiry officer,
learned advocate Mr.Oza submitted that, as per the observations
made therein, the stall holders as well as businessmen near the
mutton market have clearly stated that the workman was
present and he was keeping the place in clean condition and,
therefore, this statement would destroy the case of the
Corporation. He has also submitted that reasoning given by the
C/SCA/1339/2009 JUDGMENT
Labour Court is not in consonance with provisions of Section 56
(2) of the Bombay Provincial Municipal Corporation Act. He
submitted that penalty mentioned therein is only regarding
withholding of increments or promotion purpose and there is no
specific provision for stoppage of increment with permanent
effect. According to him, therefore, Labour Court has not
committed any serious error of law as the punishment imposed
by the Corporation is not in consonance with said Section and it
is not commensurate with the alleged misconduct on the part of
the workman for not remaining present as alleged. He has
prayed to dismiss present petition with cost.
6. In his re-submission, Mr.Munshaw has submitted that
even under Section 56 (2) (b) of the BPMC Act, the penalty
imposed is sustainable as the word used therein is "withholding
of increments". He has also submitted that the workman has not
filed any reply to the show cause notices and has not cooperated
even by filing any explanation. It is also submitted that there is a
Standing Committee or an Appellate Committee constituted by
the Corporation. Therefore, without taking that opportunity, the
workman ought not to have filed any reference before Labour
Court. Therefore, Mr.Munshaw, learned advocate for the
petitioner has submitted to allow present petition by setting
aside the impugned award passed by the Labour Court.
7. Having considered the submissions made on behalf of both
the sides as well as material placed on record, it is undisputed
fact that there is employer-workman relationship between the
parties. It is also not in dispute that the petitioner was appointed
as a Sepoy for cleanliness of the mutton market at Bhavnagar. It
also reveals that the petitioner was issued various notices for his
C/SCA/1339/2009 JUDGMENT
absence and he was lastly informed on 7.12.1993, while
referring to earlier notices dated 10.6.1991, 9.8.1991, 10.1.1992,
7.7.1992 and 21.7.1992. As per record, it appears that thereafter
the departmental inquiry has been conducted and the charge of
absence has been proved and ultimately the Corporation has
passed order of stoppage of increments with permanent effect
vide order dated 22.8.1995. At this stage, it is worthwhile to
refer to Section 56 (2) and 56 (4) of the Bombay Provincial
Municipal Corporations Act, which reads as under:-
"56. Imposition of penalties on municipal officers and servants,-
(1) ..............
(2) The penalties which may be imposed under this section are
the following, namely:--
(a) censure;
(b) with-holding of increments or promotion including stoppage
at an efficiency bar;
(c) reduction to a lower post or time-scale, or to a lower stage in
a time-scale;
(d) fine;
(e) recovery from salary of the whole or part of any pecuniary
loss caused to the Corporation;
(f) suspension;
(g) removal from municipal service which does not disqualify
from future employment;
(h) dismissal from municipal service which ordinarily
disqualifies from future employment.
(3) ...........
(4) Subject to the provisions of clause (d) of the proviso to sub-
section (1),-any municipal officer or servant who is reduced,
removed or dismissed by any authority other than the
Corporation may, within one month of the communication to him
of the order of reduction, removal or dismissal, appeal to the
authority immediately superior to the authority which imposed
the penalty and the appellate authority may, after obtaining the
remarks of the authority which imposed the penalty, either
confirm the order passed or substitute for it such order as it
C/SCA/1339/2009 JUDGMENT
considers just, including an order for the imposition of some
lesser penalty, and effect shall forthwith be given to any order
passed by the appellate authority which shall be conclusive :
Provided that for the purposes of this sub-section the Standing
Committee shall be deemed to be the authority immediately
superior to the Commissioner and the Corporation shall be
deemed to be the authority immediately superior to the Standing
Committee."
8. On analysis of the aforesaid provisions, it appears that
employer is vested with power to impose punishment, which may
include censure, withholding of increments or promotion
including stoppage at an efficiency bar; reduction to a lower post
or time-scale, or to a lower stage in a time-scale; fine; recovery
from salary of the whole or part of any pecuniary loss caused to
the Corporation; suspension; removal from service which does
not disqualify from future employment and dismissal from
Corporation service which ordinarily disqualify from future
employment.
9. At this stage, it is pertinent to note that as per Sub-section
(4) of Section 56, the provision for preferring an appeal against
the order of reduction, removal or dismissal, is vested in the
person immediately superior to the authority which imposed the
penalty. However, there is no reference regarding other penalty,
which are referred in sub-section (2) of Section 56. In view of
that the workman has to approach the Court, which is in
consonance with the legal provisions. At the same time, as
learned advocate for the workman has raised an issue that in
sub-clause (ii) of sub-section (2) of Section 56 there is mention of
only withholding of increment, and it cannot be of permanent
nature. This Court is of the considered view that when the
power is provided to withholding of increments, it will be for the
concerned administrative authority as to whether it should be
C/SCA/1339/2009 JUDGMENT
permanent in nature or without permanent effect. However, such
exercise is required to be adopted by the administrative
authority in consonance with the well settled principles of law
and in the facts of each case, the penalty should be
commensurate with the guilt of the workman.
10. Admittedly, in this case, the Corporation has heavily relied
on various notices issued from 1991 and 1992 and for that
purpose, they have initiated the inquiry in the year 1993 and
ultimately, has passed the impugned order of reduction of two
increments with permanent effect on 22.8.1995. The fact
remains that notices were issued issued at least more than one
year prior and the authority has not taken any action. It also
reveals that even as per the inquiry officer's report, the stall
holder and other businessmen have not supported the version of
the Corporation but the fact also reveals that the workman has
not replied to the notices issued to him by the Corporation. He
has not explained anything to the authority. This action on the
part of the workman is also required to be taken into
consideration as no workman can be permitted to act in such a
manner, as he did not even care to reply to the notices issued to
him by the administration. If this callous approach is accepted
in toto, the administration cannot work at all. Therefore, having
considered the factual aspects of the case with material placed
on record, this Court is of the considered opinion that some
punishment is required to be imposed upon the workman.
11. In view of the facts narrated in the petition as well as
material available with the Court, this Court finds that
punishment of stoppage of two increments with permanent effect
is not commensurate with the absentism on the part of the
C/SCA/1339/2009 JUDGMENT
workman. However, at the same time, to safeguard the rights of
administration, if the punishment of withholding of two
increments without future effect is imposed upon the workman,
it will meet the ends of justice.
12. In view of above, present petition is allowed to aforesaid
extent. The impugned award passed by Labour Court in
Reference (IT) No.18 of 1998 dated 31.3.2008 is hereby modified
and punishment of withholding of two increments without future
effect is imposed. The authority shall decide the question of
making payment for the period of suspension and other
allowances in accordance with law. Rule is made absolute
accordingly. No order as to costs.
Sd/-
(DR. A. P. THAKER, J)
R.S. MALEK
