Jamnagar Municipal Corporation ... vs Navinbhai Bhagvanbhai Solanki
2023 Latest Caselaw 5123 Guj

     C/LPA/171/2023                                     ORDER DATED: 03/07/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 171 of 2023
          In R/SPECIAL CIVIL APPLICATION NO. 16119 of 2019

                                      With

       CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 2 of 2022
            In R/LETTERS PATENT APPEAL NO. 171 of 2023

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     JAMNAGAR MUNICIPAL CORPORATION THROUGH MUNICIPAL
                       COMMISSIONER
                           Versus
               NAVINBHAI BHAGVANBHAI SOLANKI
==========================================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1
MR AK CLERK(235) for the Respondent(s) No. 1

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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
       and
       HONOURABLE MR. JUSTICE J. C. DOSHI

                                Date : 03/07/2023

                                 ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr.H.S.Munshaw for the appellant- Jamnagar Municipal Corporation and learned advocate Mr.A.K.Clerk for the respondent.

2. What is sought to be challenged in this Letters Patent Appeal is the judgment and order of learned single Judge dated 30.8.2022 dismissing the Special Civil Application, in turn confirming the judgment and award of the Industrial Tribunal, Jamnagar dated 3.6.2019 in Reference (IT) No.128 of 2012 (Old

C/LPA/171/2023 ORDER DATED: 03/07/2023

No.73 of 2003). By the said judgment and award, the Tribunal set aside the penalty of imposing two increments with future effect on the respondent-workman.

3. The respondent- workman had been serving in the House Tax Department of the Corporation, and was posted at the octroi junction as Clerk. The allegation against the respondent was that on 25.1.1998, a truck containing 3000 bags of cement belonging to one Suresh Traders was permitted to pass through the octroi Naka without requiring payment of octroi. The workman, at that time, admittedly issued the receipt in respect of the leviable octroi, however the amount was not received. This was treated as misconduct and the workman was subjected to departmental proceedings.

3.1 The premise on which the misconduct was rested and the departmental action was contemplated, was the alleged admission on part of the workman claimed to have been reflected in statement dated 25.1.1998. As found by the Tribunal as well as confirmed after revisiting the facts, by learned single Judge, in the departmental inquiry any witness was not examined to prove the alleged misconduct against the respondent. It was on the sole basis of the so called statement styled as admission of the workman that the inquiry was concluded to impose the aforesaid penalty.

4. Learned single Judge while upholding the award of the Tribunal and setting aside the penalty, considered the papers of inquiry (Exh.45) to notice that the Tribunal found that Officer named one Shri Hindoja was not examined, who was the person

C/LPA/171/2023 ORDER DATED: 03/07/2023

who on behalf of the Corporation, conducted inquiry and filed a report alleging misconduct against the respondent.

4.1 It was a bearing aspect that person who prepared report about the misconduct of the workman was not subjected to examination. It was also recorded by the labour court that not only the said evidence was not taken, no other documentary evidence was available to prove the misconduct.

4.2 It was observed by learned single Judge in para 12 thus,

"Perusal of the Inquiry Officer's report which was placed on record, on examining the same in light of the findings of the Tribunal would indicate that solely based on a response filed by the employee on 18.08.1998, the Inquiry Officer held that it was an admission on the part of respondent of having committed misconduct and, therefore the Inquiry Officer held the charge as proved. No documentary evidence or the testimony of the report, the co-employee or the driver to substantiate the charge were produced on record. In fact, the Tribunal having examined the response dated 18.08.1998 found that the respondent workman had denied the charge in question."

4.3    Learned single Judge proceeded to state in para 13,

           "No    evidence   was     produced   as   stated

hereinabove before the Inquiry Officer to hold the charge as proved. In absence of any material, such as the examination of the Reporting Officer who filed the report of misconduct, non-

examination of Shri Hindocha, the Officer who made the report, absence of a spot panchnama when the bags were unloaded and also recording of a testimony and producing the same of a co-

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employee Bupatkar, who was present at the site, led the Tribunal to believe that it was a case where the inquiry was held to be one which had "no evidence."

5. While examining the findings of the Tribunal confirmed by learned single Judge as above, this court have gone through the statement dated 25.1.1998 figuring on record of the Letters Patent Appeal, the say of the workman therein was taken as an admission on his part. The workman only stated in the statement that he on the day of instance prepared the receipt and that the money was not collected.

5.1 The preparing of receipt but not collecting the amount towards octroi cannot be said to have any attribute of corrupt practice on part of the workman. The very fact that the receipt was produced showed bonafide intention. For any reason, had there been any intention to pocket the money or commit corruption, the workman would not have issued the receipt, whatsoever, the money towards octroi could not be not collected.

5.2 As learned advocate for the appellant, relied on the cross- examination of the workman, considering the same, the court noticed that nothing was suggested other than the factum that the receipt was issued and the amount was somehow not collected. Learned single Judge held that the case is of 'no evidence'. No evidence is a concept signifying that where even if there is some evidence, but not legally tenable evidence to establish the guilt of the workman, the case would partake 'no evidence.'

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6. The challenge to the order of learned single Judge fails. The order of learned single Judge does not book any error whatsoever.

7. The appeal is dismissed as meritless.

In view of disposal of the Appeal, the Civil Application will not survive. Accordingly, it is disposed of.

(N.V.ANJARIA, J)

(J. C. DOSHI,J) Manshi