Divisional Controller vs Secretary, State Transport ...
2021 Latest Caselaw 1791 Guj

         C/SCA/1858/2019                                         JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 1858 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

==========================================================
                    DIVISIONAL CONTROLLER
                             Versus
        SECRETARY, STATE TRANSPORT KARMACHARI MANDAL
==========================================================
Appearance:
MR HS MUNSHAW(495) for the Petitioner(s) No. 1
MR JM BAROT(143) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
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    CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                               Date : 08/02/2021

                               ORAL JUDGMENT

1. Rule. Mr.Jayesh Barot, learned advocate

waives service of notice of Rule for the

respondent workman. By consent of the learned

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advocates for both the parties, the matter is

taken up for final hearing.

2. By way of filing of the present petition, the

petitioner has challenged the award and order

dated 28.11.2017 passed by the learned

Presiding Officer, Industrial Tribunal No.5,

Ahmedabad in Reference (I.T) Case No.22 of

2011. The learned Presiding Officer,

Industrial Tribunal No.5, Ahmedabad, by the

order under challenge, partly allowed the

same and quashed and set-aside the order

imposing punishment dated 25.10.2004 upon the

respondent workman and directed the

petitioner for re-fixation of salary by

considering interregnum period as notional.

The learned Presiding Officer, Industrial

Tribunal No.5, Ahmedabad also held that the

respondent workman shall not be entitled for

any amount towards arrears of salary.

3. The brief facts of this petition can be

summarized as under.

It is the case of the petitioner that the

C/SCA/1858/2019 JUDGMENT

workman was working as a Junior Assistant at

Mehsana Depot of the petitioner Corporation

and was served with the charge-sheet in

respect of negligence and carelessness. The

departmental inquiry was conducted and he was

found guilty and by order dated 29th March,

2003, the respondent workman was subjected to

a punishment of stoppage of increments with

future effect for a period of two years.

The workman preferred the First Appeal

(first departmental appeal) against the said

order and vide order dated 29th April, 2006,

a punishment imposed upon the workman was

reduced to a period of one year. Meaning

thereby, the punishment was reduced to

stoppage of increments for a period of one

year. The respondent workman found even this

punishment excessive and preferred the second

appeal within the department and ultimately,

by passing the order dated 28th April, 2010

in second appeal preferred by the workman,

the department further reduced the punishment

C/SCA/1858/2019 JUDGMENT

of workman to stoppage of increments for a

period of 6 months.

In respect of the aforesaid punishment of

stoppage of increments for a period of 6

(six) months with future effect, the

respondent workman raised industrial dispute

and the same was culminated into the

Reference (I.T.) No.22 of 2011 before the

Presiding Officer, Industrial Tribunal No.5,

Ahmedabad. Ultimately, the Industrial

Tribunal No.5, Ahmedabad, vide order dated

28th November, 2017, partly allowed the

reference preferred by the respondent workman

and quashed and set-aside the order dated

25th October, 2004, whereby the punishment

imposed upon the present respondent workman

was reduced to stoppage of increments for a

period of 6 (six) months with future effect.

As stated hereinabove, while passing the

aforesaid order, the learned Presiding

Officer, Industrial Tribunal No.5, Ahmedabad

also directed the petitioner for re-fixation

C/SCA/1858/2019 JUDGMENT

of salary of the respondent workman by

treating the interregnum period from

25.10.2004 till the date of order as notional

and to fix the salary of the respondent

workman accordingly and also observed that

the respondent workman shall not be entitled

to any arrears for interregnum period.

4. Heard Mr.H.S.Munshaw, learned advocate for

the petitioner and Mr.Jayesh Barot, learned

advocate for the respondent workman.

5. Mr.H.S.Munshaw, learned advocate for the

petitioner submitted that considering overall

conduct of the respondent workman and

considering the charges leveled against the

respondent workman, the authority has shown

leniency twice by considering his case

firstly by reducing the punishment by

stoppage of increments with future effect for

a period of two years, which was converted

into stoppage of increments with future

effect, which was reduced to one year by way

of passing the order in the first appeal and

C/SCA/1858/2019 JUDGMENT

thereafter, at the second appeal stage, the

aforesaid order was further diluted by

reducing the penalty for a period of six

months to the stoppage of increments with

future effect for the period of only six

months. As the petitioner authority has

already shown leniency and grace towards the

respondent workman considering the nature of

charges leveled against the workman, the

labour Judge ought not to have quashed the

order passed by the second appellate

authority of the petitioner Corporation.

6. Mr.H.S.Munshaw, learned advocate for the

petitioner submitted that if the order passed

by the learned Presiding Officer, Industrial

Tribunal No.5, Ahmedabad is allowed to

sustain, in that case, there are all

possibilities that considering the leniency

shown to the respondent workman, other

workmen also may get encouraged to commit

such kind of misconduct and therefore, just

to set an example, some token punishment is

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required to be imposed upon the respondent

workman by allowing the petition and by

modifying the punishment imposed upon the

respondent suitably.

7. Mr.Jayesh Barot, learned advocate for the

respondent workman submitted that the order

passed by the learned labour Judge is

absolutely just, legal and proper and is

based on the basis of the materials available

on record. He further submitted that there is

nothing on record to show that in the past

also, the respondent committed any

misconduct. He further pointed out that the

first appellate authority as well as the

second appellate authority of the petitioner

Corporation themselves have reduced the

punishment originally imposed upon the

respondent workman of stoppage of increments

for a period of two years and that itself

exhibits that actually, the offense committed

by the respondent workman was not as grave as

it is being projected. He further submitted

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that the learned labour Judge has, at the

time of allowing the reference partly,

specifically observed and directed that the

respondent workman is not entitled for any

arrears once pay fixation is done notionally

and as it is amount to sufficient punishment

for workman considering the nature of charges

leveled against him, he further urged that

the petition is required to be dismissed.

8. After having heard learned advocates for the

respective parties, this Court is of the view

that it is true that the nature of misconduct

against the respondent workman was in respect

of his negligence and carelessness. Once the

penalty was imposed upon the respondent

workman, twice the authority of the

petitioner itself reduced it and ultimately,

the punishment of stoppage of one increment

for a period of six months imposed upon the

respondent workman, which was subject matter

of challenge before the learned Presiding

Officer, Industrial Tribunal No.5, Ahmedabad.

  C/SCA/1858/2019                                                 JUDGMENT



The     learned            Presiding               Officer,       Industrial

Tribunal No.5, Ahmedabad after taking into

consideration the materials available on

record and after analyzing the evidence on

record, ultimately held that the departmental

inquiry conducted by the petitioner is not in

consonance with the evidence led in respect

of the same. The learned Presiding Officer,

Industrial Court No.5, Ahmedabad has also

held that it is a fit case, wherein

intervention of the tribunal as on

appreciation of the evidence, the charges

against the respondent workman could not be

proved. The learned Presiding Officer,

Industrial Court No.5, Ahmedabad also

considered the fact that the petitioner

Corporation being a public body, it may not

be burdened with unnecessary financial

liabilities and therefore, while quashing and

setting aside the order of punishment in

respect of the respondent workman, the

learned Presiding Officer also specifically

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observed and directed that the respondent

workman is not entitled for any amount of

arrears once re-fixation of his salary is

done.

9. I have also inquired from the learned

advocates of both the parties as to whether

the respondent workman has challenged the

very order dated 28.11.2017 in respect of

denial of amount of arrears, to which it was

reported by the learned advocates for the

respective parties that the order dated

28.11.2017, which is the subject matter of

this petition, has not been challenged by the

respondent workman.

10. In view of the above, I am of the considered

opinion that the order passed by the learned

Presiding Officer, Industrial Court No.5,

Ahmedabad in Reference (I.T.) No.22 of 2011,

dtd.28.11.2017 is just, proper and legal and

the same does not warrant any interference by

this Court as the learned Presiding Officer,

Industrial Court No.5, Ahmedabad, at the time

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of quashing and setting - aside the impugned

order of punishment, imposed the punishment

of stoppage of one increment with future

effect for a period of six months imposed

upon the respondent workman, already has

tried to strike a balance by not imposing any

financial burden upon the petitioner

Corporation by holding that the respondent

workman would not be entitled to any amount

of arrears towards the difference of salary

once re-fixation of salary is done.

11. Accordingly, the petition is required to be

dismissed and the same is dismissed. Notice

is discharged.

(NIRZAR S. DESAI,J) MOHMMEDSHAHID