Gujarat State Road Transport ... vs Ramtaji Fuvaji Thakore
2023 Latest Caselaw 4334 Guj

    C/SCA/8013/2015                               CAV JUDGMENT DATED: 12/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 8013 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
==========================================================

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 ?

========================================================== GUJARAT STATE ROAD TRANSPORT CORPORATION Versus RAMTAJI FUVAJI THAKORE & 1 other(s) ========================================================== Appearance:

MS VYOMA K JHAVERI(6386) for the Petitioner(s) No. 1 MR MIG MANSURI(444) for the Respondent(s) No. 1 MR PARITOSH CALLA(2972) for the Respondent(s) No. 2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 12/06/2023

CAV JUDGMENT

1. By way of this petition, the petitioner has challenged the order dated 03.12.2014 passed by the Industrial Tribunal, Ahmedabad in Reference (IT) No. 30 of 2009 whereby the Industrial Tribunal was pleased to partly allow the reference preferred by the workman and modified the the order of

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penalty passed against the respondent workman by the Reviewing Authority of the Corporation and reduced the penalty from withholding of three increments with cumulative effect, to withholding of one annual increment with permanent effect.

2. Being aggrieved by and feeling dissatisfied with the aforesaid order passed by the Industrial Tribunal, Ahmedabad, the petitioner - Gujarat State Road Transport Corporation is before this Court challenging the aforesaid judgement and award.

3. Heard learned advocate Ms.Vyoma K. Jhaveri, learned advocate for the petitioner, Mr.MIG Mansuri, learned advocate for the respondent workman.

4. Brief facts giving rise to the petition are as under:-

The respondent - workman serving as a driver under the respondent Gujarat State Road Transport Corporation ("the Corporation" for short). On 07.01.2006, the respondent No.1 workman while on duty misbehaved with the Depot Manager by calling him from another number and posed himself as M.L.A. of the Kalol Area and rudelly behaved with the Depot Manager. The said incident was reported to the concerned central office of the Corporation and Chargesheet was issued to the respondent workman and a departmental inquiry was initiated against the workman and after hearing the respondent workman, the Inquiry Officer submitted his report stating that the charges against the respondent are proved. The the disciplinary

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authority vide order dated 05.12.2006 imposed penalty upon the respondent workman of withholding of two increments with future effect. Against the said order, the workman approached the appellate authority of the Corporation and the appellate authority found that the punishment imposed upon the workman to be disappropriate to the charges levelled and proved during the inquiry and found the punishment to be less as against the misconduct proved and therefore, proceedings for enhancement of the punishment were initiated and show cause was issued to the respondent workman on 05.02.2007 to show cause as to why the punishment should not be enhanced. The respondent workman remained personally present and also filed reply. After hearing the workman and considering the reply, the Inquiry Officer submitted his report stating that the misconduct is proved against the workman. The disciplinary authority of the Corporation considering the report of the inquiry officer and the misconduct proved, passed order dated 05.10.2007 imposing penalty of withholding three increments of the workman with permanent effect. Against the said order, the workman raised a dispute before the Assistant Labour Commissioner after a period of two years in the year 2009 and the said dispute was referred to the Labour Court, Ahmedabad and numbered as Reference (I.T.) No.30 of 2009. The Industrial Tribunal, Ahmedabad considering the evidence on record, statement of claim of the workman and reply of the Corporation, passed order dated 03.12.2014 in the aforesaid Reference of the workman, by which the Industrial Tribunal partly allowed the Reference and

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quashed and set aside the orders dated 05.12.2006 and 05.07.2007 and modified the said orders or punishment and reduced the punishment and modified the the orders of penalty passed against the respondent workman by the Disciplinary Authority as well as Reviewing Authority of the Corporation and reduced the penalty from withholding of three increments with cumulative effect, to withholding of one annual increment with permanent effect. Against the aforesaid order of the Industrial Tribunal, Ahmedabad, the petitioner - Corporation has preferred the present petition.

5. Ms.Vyoma Jhaveri, learned advocate for the petitioner Corporation has vehemently submitted that the workman had not challenged the findings of the inquiry before the Tribunal and held that the inquiry was proper and there was no violation of principles of natural justice and that the findings were not perverse. It is submitted that if the inquiry is proper, in absence of any allegation of victimisation or unfair labour practice, the Industrial Tribunal or the Labour Court, as the case may be, has no power to interfere with the punishment imposed. It is submitted that section 11-A of the Industrial Disputes Act gives ample power to the Industrial Tribunal and the Labour Court to reappreciate the evidence adduced in the inquiry and also sit in appeal over the decision of the employer in imposing the punishment. It is submitted that section 11-A is only applicable in the case of dismissal or discharge of a workman as clearly mentioned in the section itself. It is submitted that in the present case, there is no allegation of victimisation, unfair labour practice etc. It is submitted that

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when the inquiry was conducted fairly and properly, in absence of any allegation of victimisation or mala fides or unfair labour practice, the Labour Court or the Industrial Tribunal has no power to interfere with the punishment imposed by the management. It is submitted that the Industrial Tribunal can interfere with the findings if the findings are perverse but here in the present case, there is clear finding that the findings are not perverse and principles of natural justice were complied within conducting the inquiry.

5.1. Ms.Vyoma Jhaveri, learned advocate for the petitioner Corporation has submitted that considering the scope of section 11-A of the I.D. Act for interference by the tribunal or court, even where the workman has challenged only conclusion reached by the inquiry officer and the quantum of punishment but not the legality or fairness of the inquiry proceedings, the Industrial Tribunal or the Labour Court could not examining the finding of the inquiry officer. It is submitted that in the present case also, the workman challenged the only conclusion of the inquiry officer and quantum of punishment and not the legality or fairness of the inquiry officer, which clear from Ex.29 and therefore also the Industrial Tribunal erred in interfering with the punishment imposed.

5.2. Ms.Vyoma Jhaveri, learned advocate for the petitioner Corporation has further submitted that the misconduct which is proved, is serious misconduct and considering the seriousness and gravity of the misconduct

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proved, even otherwise also the Industrial Tribunal could not have interfered with the punishment and could not have reduced the punishment in exercise of powers under section 11-A of the I.D. Act.

5.3. Ms.Vyoma Jhaveri, learned advocate for the petitioner Corporation, in support of her above submissions, has relied on the decisions of the Hon'ble Apex Court in the case of South Indian Cashew Factories Workers' Association, reported in (2006) 5 SCC 201 as well as in the case of U.P. Transport Corporation Vs. Vinod Kumar, reported in (2008)1 SCC 15.

6. Per contra, Mr.MIG Mansuri, learned advocate for the respondent workman has vehemently submitted that the Industrial Tribunal has exercised the jurisdiction under section 11-A of the I.D. Act judiciously. It is submitted that the reviewing authority has power to review the order and pass appropriate order but prior to that the reviewing authority is required to issue show cause notice stating that on which ground, the reviewing authority intends to review the order of the disciplinary authority. It is submitted that in the present case the reviewing authority had issued show cause notice but in the show cause notice, no ground was mentioned in the show cause notice on which the reviewing authority had intended to review the order and thus, there is breach of Circular dated 4/7/1980 and hence the Industrial Tribunal has rightly reduced the penalty.

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6.1. Mr.MIG Mansuri, learned advocate for the respondent workman has further submitted that submitted that the immediately after the misconduct, the workman has sought apology and gave in writing that he shall not repeat such misconduct in future. It is submitted that the misconduct is trivial and not grave. It is submitted that during the service of 30 years, the misconduct is the only misconduct by the respondent workman. It is submitted that the learned Industrial Tribunal has considered all the aspects of the matter and has given reasons for reducing the penalty, which is not required to be interfered with. He has prayed to dismiss the present petition.

7. In the present case, the workman was charge-sheeted for his misconduct of misbehaving with the depot manager on telephone, where he posed and projected himself as a MLA and talked rudely with the depot manager. A departmental inquiry was initiated and at the end of it, the workman was visited with penalty of withholding of two increments with future effect by the disciplinary authority, which was taken in review by the reviewing authority and the reviewing authority enhanced the same to three increments and then the Industrial Tribunal interfered with the orders of penalty and reduced the penalty from withholding of three increments with cumulative effect, to withholding of one annual increment with permanent effect, against which the petitioner Corporation has preferred the present petition.

7.1. It is not in dispute that in the present case the

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workman had not challenged the findings of the inquiry before the Tribunal and the inquiry is found to be proper and there was no violation of principles of natural justice and that the findings were not perverse. Section 11-A of the Industrial Disputes Act gives ample power to the Industrial Tribunal to re-appreciate the evidence adduced in the inquiry and also sit in appeal over the decision of the employer in imposing the punishment.

7.2. While considering the scope of section 11-A of the I.D. Act for interference by the tribunal or court, where the workman has challenged only conclusion reached by the inquiry officer and the quantum of punishment but not the legality or fairness of the inquiry proceedings, the Industrial Tribunal could not examining the finding of the inquiry officer. In the present case, on perusal of the record more particularly Ex.29, it is clear that the workman challenged the only conclusion of the inquiry officer and quantum of punishment and not the legality or fairness of the inquiry officer. However, it is required to be noted that as per the Circular of the petitioner dated 4/7/1980, the reviewing authority, before reviewing the order of the disciplinary authority, is required to issue show cause notice to the delinquent workman stating the reasons therein on which the reviewing authority intends to review the order. In the present case, the reviewing authority issued the show cause notice dated 5/2/2007, but in the said notice the ground on which the reviewing authority intended to review the order, was not mentioned. Mere issuance of show cause notice by the reviewing authority was not enough but the reviewing

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authority was required to state the ground in the show cause notice, on which the reviewing authority was intended to review the order. Such ground was not mentioned by the reviewing authority in the show cause notice dated 5/2/2007 Ex.25 and therefore, there is clear breach of the Circular of the petitioner Corporation dated 4/7/1980 and without mentioning the grounds for enhancement in the show cause notice, the reviewing authority could not have reviewed the order and enhanced the penalty to stoppage of three increments with permanent effect. Thus, the order of the reviewing authority is not just, legal and in accordance with the Circular of the petitioner Corporation dated 4/7/1980.

7.3. It is required to be noted that the respondent workman has admitted the misconduct, more particularly, the respondent committed the misconduct on 07.01.2006 and the workman admitted the misconduct vide letter dated 16.01.2006 which is clear from Ex.16. Thus, it is clear that the respondent workman has not only apologized while admitted the misconduct but has also given assurance that in future such misconduct shall not be repeated by him. It is also pertinent to note that the respondent has worked for 30 years and during long 30 years, as per the Default Card of the respondent workman Ex.28, there are six cases against the respondent workman but out of the said six cases, there is not a single case of misconduct. Thus, during the long service of 30 years the misconduct in question is the first misconduct committed by the respondent workman.

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7.4. The learned Industrial Tribunal has recorded reasons, as aforesaid, in the impugned order for interfering with the order passed by the reviewing authority and for reducing the penalty from stoppage of three increment by the reviewing authority to withholding one increment with permanent effect.

7.5. Considering the overall facts, circumstances and evidence on record, and the misconduct proved, this Court is of the opinion that if the penalty imposed by the reviwing authority of withholding three increments with permanent effect is reduced to withholding two increments with permanent effect and the impugned order of the learned Tribunal is modified to that extent, the ends of justice would be met.

7.6. So far as the decisions of the Hon'ble Apex Court in the case of South Indian Cashew Factories Workers' Union (supra) and UP State Road Transport Corporation (supra) are concerned, this Court is complete in agreement with the law laid down in the said decisions. Considering the fact that in the present case, the reviewing authority had not stated the ground on which the reviewing authority had intended to review the order and enhance the penalty; the respondent workman has served for long 30 years and during the said entire service of 30 years, there is not a single case of misconduct except the present one, for which the respondent workman has sought also apology, the penalty imposed by the reviewing authority is required to be

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reduced.

8. Resultantly, present petition is partly allowed. The impugned Judgement and Award order dated 03.12.2014 passed by the learned Industrial Tribunal, Ahmedabad in Reference (IT) No. 30 of 2009 is quashed and set aside and the impugned Award of the learned tribunal is modified from withholding one annual increment with permanent effect to withholding two annual increments of the respondent workman with permanent effect. In the facts and circumstances of the case, there shall be no order as to costs.

(RAJENDRA M. SAREEN,J) R.H. PARMAR..