Gujarat State Road Transport ... vs Lt.Muljibhai Dhanjibhai Parmar ...
2023 Latest Caselaw 5465 Guj

    C/SCA/6695/2013                              CAV JUDGMENT DATED: 13/07/2023




    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 6695 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE RAJENDRA M. SAREEN -- 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 of No law as to the interpretation of the Constitution of India or any order made thereunder ?

====================================== GUJARAT STATE ROAD TRANSPORT CORPORATION Versus LT.MULJIBHAI DHANJIBHAI PARMAR THRO HIS WIDOW SAVITABEN & 1 others ====================================== Appearance:

MR HS MUNSHAW(495) for the Petitioner

======================================

CORAM: HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 13/07/2023

CAV JUDGMENT

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

1. By way of present petition filed under Articles 14, 226 and 227 of the Constitution of India, the petitioner prays as under :-

           "(A)       Be   pleased       to     admit    the      present
           Special Civil Application;


           (B)        Be pleased to allow this Special Civil

Application by way of passing appropriate orders, writ, mandamus or directions quashing and setting aside the award dated 15th February, 2012 passed by the Hon'ble Industrial Tribunal at Bhavnagar in Reference (IT) no.63 of 1997, allowing the said reference preferred by the respondent no.1 and quashing and setting aside the penal order dated 6th January, 1993 imposing a penalty of stoppage of three increments with future effects;

(C) Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to stay the implementation, execution & operation of the award dated 15th February, 2012 passed by the Hon'ble Industrial Tribunal at Bhavnagar in Reference (IT) no.63 of 1997, allowing the said reference preferred by the respondent no.1 and quashing and setting aside the penal order dated 6th January, 1993 imposing a

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

penalty of stoppage of three increments with future effects;

(D) Be pleased to call for the record of case bearing Reference (IT) no.63 of 1997 from the Hon'ble Tribunal at Bhavnagar.

(E) Be pleased to pass such other and further orders as the nature of the case may be required and the Hon'ble Court may deem thought fit to pass such order."

2. The facts in brief of the present case are as under :-

2.1 As per the case of the petitioner the respondent no.1 is an employee of the petitioner - Corporation and was serving as Conductor. On 2nd June, 1990 at the time when the respondent no.1 was on duty in a bus to the route of Dhundsar from Bhavnagar, the said bus was intercepted and checked by the Inspection Squad. During inspection, it is found that the respondent no.1 had collected Rs.6/- from three passengers towards fare of Rs.2.30 per ticket and issued three used tickets of Rs.2.50, which were already issued to three passengers traveling from Bhavnagar to Shihor.

2.2 It is stated that as the said tickets were already shown by the respondent no.1 in Bhavnagar way bill, the Inspection Squad took the statement of passenger Ms. Gitaben Damjibhai on 2nd June, 1990 in presence of the respondent no.1. Statement of the respondent no.1 was also recorded and a

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

report was also submitted to the higher authority. The higher authority after considering the seriousness of the charges, issued charge-sheet on 19th June, 1990. As the said charge- sheet has not been responded by the respondent no.1, departmental inquiry was initiated against the respondent no.1. The inquiry officer has also recorded the statement of the respondent no.1 and submitted his report. Thereafter, as the charges were proved against the respondent no.1, penal order dated 6th January, 1993 imposing a penalty of stoppage of three increments with future effect was issued upon the respondent no.1.

2.3 It is stated that the respondent no.1 had preferred first appeal before the Divisional Controller on 15 th February, 1993 challenging the penal order dated 6th January, 1993. In the said appeal the respondent no.1 has admitted that issuance of used tickets was not deliberate but it had happened by mistake. However, the said appeal was rejected by the appellate authority.

2.4 Being aggrieved by the same, the respondent no.1 preferred Reference (IT) no.63 of 1997 before the Industrial Tribunal, Bhavnagar praying for quashing and setting aside the penal order dated 6th January, 1993. The petitioner also submitted detailed written statement and entire record pertaining to the incident and inquiry. It is stated by the petitioner that the Industrial Tribunal by ignoring and overlooking the material placed on record by the petitioner, passed an interim order dated 1 st August, 2011 holding that the departmental inquiry was not just and proper. Thereafter,

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

the matter was heard before the Industrial Tribunal at length and written arguments were also placed on record indicating that the charges leveled against the respondent no.1 were examined by the Inquiry Officer and principles of natural justice were also followed and only thereafter, the penal order was passed. However, the Industrial Tribunal ignoring the said facts had allowed the reference filed by the respondent no.1 vide order dated 15th February, 2012, which is impugned in the present petition.

3. Heard Mr. Chauhan, learned advocate for Mr. Munshaw, learned advocate for the petitioner and Mr. P.C. Chaudhary, learned advocate for the respondent no.1.

4. Mr. Chauhan, learned advocate for Mr. Munshaw, learned advocate for the petitioner - S. T. Corporation has vehemently argued that there is a delay of four years in raising the dispute and in filing the reference by the workman. As such it has become a stale claim of the respondent - workman and the dispute was never live at the time of reference.

4.1 It is also submitted that the tribunal has not appreciated the fact that the entire inquiry against the respondent workman was based on record and the same was available before the departmental inquiry officer.

4.2 It is also submitted that the statement of the respondent no.1 workman, which was recorded during the course of inquiry was also not appreciated in the evidence by the

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

Tribunal. The principles of natural justice at the time of inquiry was fully complied with by the department and the respondent workman was given full opportunity to represent his case and the entire case as based upon record the record, the order of stopping of three increments with future effect was imposed.

4.3 It is also submitted that there is no such rule that the disciplinary authority cannot become inquiry officer also, which is not considered by the Tribunal and the Tribunal has wrongly entered into irrelevant aspects like propriety of inquiry, competence of Inquiry Officer, compliance of principles of natural justice and passed erroneous order, which is under challenge. As such it is prayed to quash and set aside the order of the Tribunal in Reference Case no.63 of 1997.

4.4 To support his contentions, Mr. Chauhan, learned advocate for the petitioner has relied upon the following decisions:

i. In the case of Rajendrakumar Parshottambhai Parekh Vs. Ex Candica & 1 in Letters Patent Appeal no.465 of 2016 and allied matters decided on 14th June, 2016;

ii. In the case of Division Controller Vs. Ambalal Kabhai Patel in Special Civil Application no.10706 of 2016 decided on 1 st August, 2017.

5. On the other hand, Mr. Chaudhary, learned advocate for

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

the legal heirs of the deceased respondent workman submits that no whisper regarding the delay was ever urged before the Labour Court during the time of reference is being proceeded. Moreover, here in this case, after the order of punishment was passed, the workman had filed an appeal before the authority and after the decision of authority, the dispute has been raised.

5.1 It is further submitted that as such there is no deliberate delay on the part of the respondent to dispute and file a reference. It is also submitted that the inquiry, which was held against the workman was held to be illegal and thereafter, opportunity of adducing fresh evidence was given to the petitioner - corporation, but no fresh evidence has been brought on record. As such based upon the findings of the Labour Court, Mr. Chaudhary, learned advocate for the respondent has prayed to dismiss the petition.

5.2 Mr. Chaudhary, learned advocate for the respondent workman has relied upon the following decisions to support his case:

i. In case of H.S. Chandra Shekara Chari Vs. Divisional Controller, Karnataka State Road Transport Corporation and another, reported in 1999 (2) L.L.N. 995;

ii. In case of Ms. Neeta Kaplish Vs. Presiding Officer, Labour Court and another, reported in 1999 (1) L.L.N. 7;

iii. In case of Gujarat State Road Transport Corporation Ltd. Vs. Kantilal Nandlal

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

Dave and others, reported in 1991 Law Suit (Guj) 278;

iv. In case of Amumiyan Pirmiyan Kadri Vs. Gujarat State Road Transport Corporation, reported in 1992 (2) GLH 21;

v. In case of Gujarat Road Transport Corporation Vs. Majidbhai Mahmadbhai Kureshi, in Special Civil Application no.177 of 2009 decided on 30th July, 2021.

6. Upon hearing the submissions of learned advocates for the respective parties as regards to the issue of delay is concerned, it is apparent that in the year 1990 the incident had occurred and the inquiry has been held and in the year 1993, the punishment has been imposed upon the respondent workman (deceased). It is also the fact that he had challenged the penal order before the appellate authority and after that the dispute was raised. It cannot be denied that the stoppage of increment is affecting the employee and his family and it always remain live issue and it cannot be said to be a stale claim.

7. Here in this case, as it appears from the record not a whisper has been made by the Corporation except a single line that the reference is barred by limitation, nothing has been mentioned in the written statement before the Labour Court, nor any arguments towards the delay of four years has been agitated before the Labour Court and also in this petition, no grounds to the effect that though there was a delay, as per the S.T. Corporation in filing the reference, no such ground has been taken in the petition. As stated above,

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

the delay of four years cannot be said to be fatal to the institution as in the year 1993, the departmental appeal was filed and after it was decided, the dispute was raised and it cannot be said to be a stale dispute, which cannot be adjudicated.

8. As such this Court is not in agreement with the contention raised by the learned advocate for the petitioner regarding delay. This Court cannot deny the fact that if a delay in raising the dispute and filing the reference is much more older i.e. upto one decade or two decades, it does become a stale claim and dispute cannot be said to be a live dispute in that manner. As observed in the case of Ambalal Kabhai Patel (supra), relied on by the learned advocate for the petitioner, it was a case in which there was no dispute that there was a delay of more than 20 years in approaching the Tribunal on the part of the workman and on that very ground the petition was rejected, which was filed against the order of the tribunal challenged by the Divisional Controller.

9. In case of Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division, Kota Vs. Mohan Lal, reported in (2013) 14 SCC 543, in para-19, it was held as under:

"19. We are clearly of the view that though the Limitation Act, 1963 is not applicable to the reference made under the ID Act, but delay in raising industrial dispute is definitely an important circumstance which the Labour

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

Court must keep in view at the time of exercise of discretion irrespective of whether or not such objection has been raised by the other side. The legal position laid down by this Court in Gitam Singhthat before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors including the mode and manner of appointment, nature of employment, length of service, the ground on which termination has been set aside and the delay in raising industrial dispute before grand of relief in an industrial dispute, must be invariably followed."

10. This observation of the Hon'ble Apex Court cannot be denied. Moreover, as per the observations in the case of Ex Candica (supra), it was a case wherein there was unexplained delay of more than seven years for raising the dispute and on that ground the appeals of the workmen were dismissed. Whereas, in this case, as stated above, the delay is not so fatal that it can be thrown away at the threshold merely on the ground of delay, as deliberately there is no action on the part of the workman to approach the tribunal.

11. On the contrary in the year 1993 itself, when the appeal was filed and thereafter, it culminated into a dispute raised by the workman and thereafter reference was filed. It can be noted that when the dispute was raised and it was before the conciliator, ALO the petitioner is not able to show that the

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

point of delay was urged before the conciliator or the ALO and after all the procedural aspects, the reference is sent to the Tribunal, it can be presumed that the delay aspect, if any, is considered by the authorities and here in this case, as stated above, no submission regarding the delay has been raised before the Labour Court by the petitioner nor any whisper of delay arguments being not considered by the reference Court is taken as a ground in the petition. Under this circumstances, this Court does not sustained the submission of delay raised by the learned advocate for the petitioner.

12. As regarding the aspect of the legality of the inquiry is concerned, the Tribunal based upon the record of the inquiry has taken the view that the inquiry, which is conducted is illegal, unreasonable and is null and void. Considering the submissions of learned advocate for the petitioner that this view of considering the inquiry to be illegal, arbitrary and against the principles of natural justice or perverse is erroneous. On the contrary, the findings, which are noted in the order of deciding the legality of the inquiry is concerned, it is apparent that Divisional Transport Officer has given the charge-sheet, he himself has conducted the inquiry, he himself has become the presenting officer and he himself has become the authority to pass an order. As per the procedure of departmental inquiry, the Inquiry Officer has to send the findings to the Disciplinary Authority and Disciplinary Authority in agreement with the report of the Inquiry Officer before imposing punishment has to send the second show cause notice to the delinquent. Here in this case, as observed by the Tribunal no second show cause notice after the inquiry

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

was ever been given to the respondent workman and on the basis of the record and the principles of departmental inquiry, how to be conducted, the tribunal has declared the inquiry to be illegal, arbitrary, unreasonable, null and void.

13. It is also pertinent to note that after the inquiry was declared to be illegal, fresh opportunity to the petitioner department has been given to adduce fresh evidence. On the contrary, the petitioner has placed the same record of inquiry, which was already considered by the tribunal while deciding the legality of the inquiry. No fresh evidence was brought on record by the petitioner department and as per the findings of the Industrial Tribunal, though the opportunity of adducing the fresh evidence was given to the petitioner department, no fresh evidence has been adduced and based upon the nil evidence by the department, the order of punishment was declared as illegal. It is a basic principle that once an opportunity is given to the authority to adduce fresh evidence, after that the record of the departmental inquiry cannot be considered to be a fresh evidence and based upon this principle, the reference was partly allowed.

14. Here reference is required to be made to the decision of Apex Court in case of Divisional Controller, Karnataka State road Transport Corporation and another (supra), as relied upon by the learned advocate for the respondent in which in paras-9 and 10, the Hon'ble Apex Court has held as under:

"9. It was for this reason that full back

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

wages were not awarded to the appellant. Once the Tribunal had found that the charges against the appellant were not established, it was not open to the learned Single Judge, who had rightly refused to re-appraise die evidence, to say that with better proof the charges could have been established. The learned Single Judge had no jurisdiction, not even under Section 11A of the Industrial Disputes Act, 1947, to enter into the question whether the charges could have been established by better or further evidence. That is not the function of the court or any quasi- judicial authority. If it is found as a fact that charges are not established, then the necessary consequences have to follow and, as a corollary thereto, appropriate orders are to be passed. There may be circumstances justifying non-payment of full back wages, but they cannot be denied for the reason that the charges could have been established with better proof If "better proof' was available with the management and it was not furnished or produced before the court, a presumption would arise that such proof, if furnished, would have gone against the management. We are surprised that the view propounded by the learned Single Judge, which falls in the realm of speculation, has been upheld by the Division

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

Bench.

10. In this situation, therefore, we remand the whole case back to the learned Single Judge to re-hear it on merits, subject to the condition that in compliance of the award passed by the Labour Court, the appellant shall be put back to duty and all the arrears of salary and allowances shall be paid to him within three months and during the pendency of the writ petition the monthly salary shall continue to be paid to the appellant as and when it falls due."

15. Further, in case of Ms. Neeta Kaplish Vs. Presiding Officer, Labour Court, and another (supra), the Hon'ble Apex Court has held as under :

"23. In view of the above, the legal position as emerges out is that in all cases where enquiry has not been held or the enquiry has been found to be defective, the Tribunal can call upon the Management or the employer to justify the action taken against the workman and to show by fresh evidence, that the termination or dismissal order was proper. If the Management does not lead any evidence by availing of this opportunity, it cannot raise any ground at any subsequent stage that it

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

should have been given that opportunity, as the Tribunal, in those circumstances, would be justified in passing an award in favour of the workman. If, however, the opportunity is availed of and the evidence is adduced by the Management, the validity of the action taken by it has to be scrutinised and adjudicated upon on the basis of such fresh evidence.

24. In the instant case, the appellant had questioned the domestic enquiry on a number of grounds including that her own answers, in reply to the questions of the Presiding Officer, were not correctly and completely recorded and that the Enquiry Officer was not impartial and was biased in favour of the respondent. It was further contended that her own witnesses were not called and she was not given the opportunity to lead evidence. The Labour Court has discussed a few of these grounds but has not given any finding on the bias of Enquiry Officer or the ground relating to incorrectly recording the statement of the appellant. The Labour Court, however, found that the enquiry was not fairly and properly held. It was after recording this finding that the Labour Court called upon the Management to lead evidence on merits which it did not do.

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

25. Learned counsel for the appellant contended that in spite of the direction by the Labour Court to the respondent-management to lead evidence, it was open to the Management to rely upon the domestic enquiry proceedings already held by the Enquiry Officer, including the evidence recorded by him, and it was under no obligation to lead further evidence, particularly as the Management was of the view that the charges, on the basis of the evidence already led before the Enquiry Officer, stood proved. It was also contended that under Section 11-A, the Labour Court had to rely on the "materials on record" and since that enquiry proceedings constituted "material on record", the same could not be ignored. The argument is fallacious.

26. The record pertaining to the domestic enquiry Would not constitute "fresh evidence" as those proceedings have already been found by the Labour Court to be defective. Such record would also not constitute "material on record", as contended by the counsel for the respondent, within the meaning of Section 11- A as the enquiry proceedings, on being found to be bad, have to be ignored altogether. The proceedings of the domestic enquiry could be,

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

and, were, in fact, relied upon by the Management for the limited purpose of showing at the preliminary stage that the action taken against the appellant was just and proper and that full opportunity of hearing was given to her in consonance with the principles of natural justice. This contention has not been accepted by the Labour Court and the enquiry has been held to be bad. In view of the nature of objections raised by the appellant, the record of enquiry held by the Management ceased to be "material on record' within the meaning of Section 11-A of the Act and the only course open to the Management was to justify its action by leading fresh evidence as required by the Labour Court. If such evidence has not been led, the Management has to suffer the consequences."

16. In case of Gujarat State Road Transport Corporation Limited Vs. Kantilal Nandlal Dave and others, this Court has held as under :

"14. In the instant case, what transpires from the purported statement at Exh.24 recorded by the Enquiry Officer in the enquiry proceedings is that the Enquiry Officer has cross-examined the delinquent with respect to certain material on record. This it was

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

certainly not open to him. Shri Sen for the Appellant has failed to point out any provision in the Appeal Procedure enabling the Enquiry Officer to undertake such task. If the Enquiry Officer cross-examines the delinquent under the guise of recording his statement (which it would not be open to him to do under the Appeal Procedure), he dons the robe of the prosecutor while keeping the robe of the judge on his shoulder. It is a settled principle of law that no person can be both a prosecutor and a judge. If a person tries to be both, he can be said to be biased in conducting the enquiry proceedings. It is a well-known principle of law that a biased person is disqualified from conducting such enquiry proceedings. That is a settled principle of natural justice.

15. In view of my aforesaid discussion. I am of the opinion that the Enquiry Officer performed the function of the prosecutor as well besides performing the function of the judge designed to carry the enquiry proceedings to its logical end His such an approach was in contravention of the basic principle of natural justice to the effect that no person can be both a judge and a prosecutor.

This approach on the part of the Enquiry Officer has vitiated the enquiry proceedings. It

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

culminated into the impugned order of dismissal at Exh. 32. Any decision or order based on any illegal and invalid proceedings has to be branded null and void. I am therefore of the opinion that the order dismissing the delinquent from service at Exh. 32 cannot be sustained in law and it is null and void and of no consequence or effect whatsoever.

16. It cannot be gainsaid that the Corporation is a 'State' within the meaning of Article 12 of the Constitution of India. This point has been concluded by this Court in its Division Bench ruling in the case of Amarsing Salansing Medatia v. Gujarat Stale Road Transport Corporation and Others 21 G.L.R. at page 500. The employee of the Corporation partaking the character of State for the purpose of Article 12 of the Constitution of India cannot be removed just at the sweet will of the appointing or the disciplinary authority.

          They    in     that    sense         enjoy    the    status        of
          irremovability         like        government           servants

enjoying protection under Article 311 of the Constitution of India or workmen under the relevant industrial or labour legislation. If any disciplinary action contrary to law is taken against any such employee of such

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

Corporation, he can successfully challenge such action in a court of law exercising civil jurisdiction under Section 9 of the Code.

17. This point is concluded by the Division Bench ruling of this Court in its ruling in the case of Mohanlal Popatbhai Patel v. The Gujarat State Road Transport Corporation and Another reported in 1977(1) Services Law Reporter at page 30. It has been held therein:

"If an order of dismissal is passed by the respondent-Corporation in violation of principles of natural justice or in contravention of the relevant regulations framed by the Corporation in this behalf, such an order can be declared as null and void and the Court can grant a declaration that the employee concerned continues in service."

17. In case of Amumiyan Pirmiyan Kadri Vs. Gujarat State Road Transport Corporation, this Court has held as under :

"14. It transpires from the record of the enquiry proceedings that the delinquent did not volunteer to give any oral testimony in the enquiry proceedings. It may be mentioned at this stage that he had no one as his defence assistant in the enquiry proceedings. If at all the delinquent wanted to give any oral

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

testimony, his chief examination could have been recorded by himself. The so-called statement of the delinquent at Exh. 22 shows that no chief examination of his is taken. What is mentioned therein is that the delinquent was questioned by the Enquiry Officer. It would mean that the delinquent was required to give answers to the questions put to him by the Enquiry Officer. This makes one thing clear that the so-called statement at Exh. 22 can by no stretch of imagination be said to be his oral testimony in the enquiry proceedings,

15. The question then arises whether or not the Enquiry Officer could have recorded his explanatory statement in the manner it is recorded by the Criminal Court under Sec. 313 of the Criminal Procedure Code, 1973 on completion of the recording of the prosecution evidence. As aforesaid, the only provision made in that regard is in Clause (k) of Para 5 of the Appeal Procedure. Thereunder, the Enquiry Officer is invested with the limited power of giving a further opportunity to the delinquent of making a written or oral statement if desired by him. It would mean that, after completion of recording the evidence, the Enquiry Officer has to ascertain from the delinquent whether or not he has to

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

say anything more with respect to the material on record. If the delinquent so desires, the option is given to him to make an oral or written statement in that regard. It thus becomes clear that such statement to be given by the delinquent after completion of the recording of the evidence should be out of his volition. It is not open to the Inquiry Officer to compel him to give any such statement. If the Enquiry Officer does so, even if be in the nature of seeking explanation of the delinquent with respect to the material on record pointing the finger of guilt against the delinquent, the Enquiry Officer can be said to be transgressing his limits laid down in Clause

(k) of Para 5 of the Appeal Procedure.

16. In the instant case, what transpires from the purported statement at Exh. 22 recorded by the Enquiry Officer in the enquiry proceedings is that the Enquiry Officer has cross-examined the delinquent with respect to certain material on record. This it was certainly not open to him. Shri Desai for the respondents has failed to point out any provision in the Appeal Procedure enabling the Enquiry Officer to undertake such task. If the Enquiry Officer cross-examines the delinquent under the guise of recording his statement

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

(which it would not be open to him to do under the Appeal Procedure), he dons the robe of the prosecutor while keeping the robe of the Judge on his shoulder. It is a settled principle of law that no person can be both a prosecutor and a Judge. If a person tries to be both, he can be said to be biased in conducting the enquiry proceedings. It is a well-known principle of law that a biased person is disqualified from conducting such enquiry proceedings. That is a settled principle of natural justice."

18. Considering the observations of the judgments relied upon by the learned advocate for the respondent workman (deceased) and the observations made in case of Amumiyan Pirmiyan Kadri (supra) when the same person acts as a prosecutor and a judge, it is clear breach of principles of natural justice and the inquiry becomes nullity. Here, also as stated above, the issuance of show cause notice, filing of charge-sheet, holding of departmental inquiry, filing of the report and passing the order of dismissal are carried-out by one person and this is sufficient to hold that the inquiry proceedings are nullity. Therefore, considering the decisions cited by the learned advocate for the respondent workman (deceased), it appears that the Tribunal has not committed any error of facts and law in allowing the reference of the respondent workman (deceased) and therefore, the impugned award of the Tribunal is sustainable in the eye of law according to the findings based upon the record and the evidence.

C/SCA/6695/2013 CAV JUDGMENT DATED: 13/07/2023

19. Considering the facts and record of the case and the findings of the Industrial Tribunal as it is a principles of law that the petition under Sections 226 and 227, the Court is not exercising jurisdiction as an Appellate Court of the Labour Court or the Industrial Tribunal, unless and until the findings based upon the record of the case is found to be illegal and perverse, interference should not be made in the order of the Labour Court or the Industrial Tribunal. Moreover, if second view is possible, then also reversing the findings of the Labour Court or the Industrial Court based upon the record and evidence adduced, it cannot be permitted.

20. In view of the above, the present petition is required to be dismissed and accordingly, the same is dismissed. No order as to costs. Rule discharged. Interim relief, if any, granted earlier stands vacated.

21. The impugned award dated 15th December, 2012 passed by the Industrial Tribunal, Bhavnagar in Reference (IT) Case no.63 of 1997 is hereby confirmed.

22. It is observed that the widow of the deceased respondent workman shall be paid monetary benefits whatever found due towards the deceased workman on the basis of this order, within the period of four weeks from the date of receipt of this order.

Sd./--

(RAJENDRA M. SAREEN, J.) AMAR RATHOD...