Divisonal Controller vs Industrial Tribunal
2023 Latest Caselaw 4930 Guj

     C/SCA/17566/2014                               JUDGMENT DATED: 27/06/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 17566 of 2014
                                   With
                R/SPECIAL CIVIL APPLICATION NO. 703 of 2015


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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1     Whether Reporters of Local Papers may be allowed                    NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                             NO

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 ?

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                            DIVISONAL CONTROLLER
                                    Versus
                        INDUSTRIAL TRIBUNAL & 1 other(s)
==========================================================
Appearance:
MR HAMESH C NAIDU(5335) for the Petitioner(s) No. 1
MR NAVALDAN R LANGA(2943) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                                Date : 27/06/2023

                               ORAL JUDGMENT

1. By of Special Civil Application No.17566 of 2014, the petitioner employer - GSRTC has prayed for the following main relief:

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"7[A]. This Hon'ble Court be pleased to issue a writ of Certiorari or any other appropriate writ, order or direction in nature of Certiorari or any other appropriate writ, order of direction calling for the records and proceedings of the Reference (I.T.) No. 106 of 2006 and after perusing the same, be pleased to quash and set aside the award dated 6/8/2014 passed in Reference (I.T.) No. 106 of 2006.

2. By of Special Civil Application No.703 of 2015, the petitioner workman - Devendra Sinh Roopsinh Rana has prayed for the following main reliefs:

"7[A]. Your Lordships may be pleased to issue a writ in the nature of Mandamus or any other appropriate writ, order or direction and quash and set aside the orders dated 28/3/2005 and 17/1/2004 passed by the respondent No.1 - Corporation.

[B]. Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction in the form of Certiorari or any other appropriate writ, order of direction calling for the records and proceedings of Reference (I.T.) No. 106 of 2006 and after perusing the same, be pleased to modify the award dated 6/8/2014 passed by the Industrial

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of 2006."

3. FACTS :

3.1. That Mr. Devendrasih R. Rana - petitioner of Special Civil Application No.703 of 2015 (hereinafter shall be referred to as "the workman" for short, was working as driver with the employer - petitioner of Special Civil Application No.17566 of 2014 - Gujarat State Road Transport Corporation as a Driver (hereinafter shall be referred to as the employer Corporation. Workman driver had raised dispute with regard to the following orders passed in three different departmental inquiries:

i. Order passed on 28/3/2005 wherein punishment of stoppage of one year of annual increment with future effect was passed.

ii. Order passed on 24/1/2002 wherein punishment of stoppage of one year of annual increment with future effect was passed.

iii. Order passed on 17/1/2004 wherein he was placed at 5 scale lower in his salary grade.

3.2. The workman raised the above disputes which were referred for adjudication before the Industrial Tribunal, Rajkot being Reference (I.T.) No, 106 of 2006. The workman filed statement of claim vide Exhibit The workman stated that he is working with the Corporation as a driver. That the

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workman was imposed three different punishments in three different departmental inquiry which is without perusing proper evidence and that the entire inquiry is illegal, unreasonable and against principles of natural justice and the respondent workman, as a result of punishment is suffering acute financial loss. The workman prayed to quash and set aside the punishment imposed and to compensate the workman for the loss suffered as a result of punishment. The workman also prayed for the cost of Reference for an amount of Rs. 1,500/-.

3.3. The employer - Corporation filed its written statement vide Exhibit - 20 contesting the claim of the workman. The Corporation contended that the Reference is barred by delay and laches. The Corporation contended that the service record of the workman was unclean and inspite of giving opportunities the workman did not mend his ways. The workman over the years have been involved in various misconducts, In one cases of accidents causing damage to the bus. In one of the punishment under challenge he was charges for carrying 20 pints of liquor in the public transport vehicle. The workman was given full opportunity in all the cases to defend his case and after following due process of law, these punishments were imposed upon the workman in different departmental inquiries.

3.4. That vide Exhibit 17, the workman has waived the

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challenge to the legality and validity of the departmental Inquiry but has limited his claim challenging the findings and reasoning given In the departmental inquiry.

3.5. The Industrial Tribunal by an Award and Order dated 6/8/2014 has partly allowed the reference preferred by the workman. Hence, both, the workman as well as the employer have preferred these petitions for the aforesaid reliefs.

4. SUBMISSION OF THE WORKMAN :-

4.1. Mr.N.R. Langa, learned advocate for the workman has vehemently submitted that the workman has retired. It is submitted that the punishment of placing the workman 5 stages lower in his pay scale is too harsh. It is submitted that the workman is facing financial hardship and hence the said order is required to be modified on humanitarian ground.

4.2 Mr.Langa, learned advocate for the workman has further submitted that the findings of the tribunal based upon the inquiry is erroneous and the case of the workman has not been considered by the Industrial Tribunal in its true spirit.

4.3. Mr.Langa, learned advocate for the workman has submitted that in the criminal case of having liquor, the

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workman is acquitted, however, prior to that, the departmental inquiry was conducted and the workman was punished. It is submitted that therefore, considering the acquittal of the workman in the criminal case, some leniency is required to be shown and the punishment is required to be modified.

He has prayed to allow Special Civil Application No.703 of 2015 preferred by the workman and dismiss Special Civil Application No.17566 of 2014 preferred by the employer Corporation.

5. SUBMISSIONS OF THE EMPLOYER :

5.1. Mr.H.C. Naidu, learned advocate for the employer GSRTC has vehemently submitted that the workman has not challenged the legality and validity of the inquiry and has challenged the quantum of punishment only before the Industrial Tribunal and once validity of the inquriy was waived, it was not open for the tribunal to substitute the punishment for the misconduct which was proved in the inquiry. It is submitted that when the inquiry was proper and order was passed after giving sufficient opportunity to the workman, and when the workman has not challenged the proceedings of the inquiry, the Industrial Tribunal erred in interfering with the punishment. It is submitted that the tribunal failed to appreciate that the punishment was imposed in the year 2002 and the workman challenged the said punishment in the year 2006 and there was delay of 4

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years. It is submitted that the Industrial Tribunal has power to interfere with the punishment imposed in the departmental inquiry but only if the punishment is shockingly disproportionate and harsh as compared to the nature of misconduct. In the present case, looking to the misconduct proved, the punishment cannot be said to be shockingly disproportionate and harsh. It is submitted that the Industrial Tribunal has erred in construing the provisions of Section 11A of the Industrial Disputes Act. It is submitted that the Industrial Tribunal erred in interfering in the minor punishment. It is submitted that the Industrial Tribunal erred in entertaining the dispute as the workman raised a consolidated dispute in one Reference though the punishment imposed are under different default case and of different year and therefore, the Industrial Tribunal ought to have refrained from granting relief of different dispute under one reference. It is submitted that the award passed by the Industrial Tribunal is illegal, unjust, perverse, against the evidence on record and settled legal position and the same deserves to be quashed and set aside.

He has prayed to allow Special Civil Application No.175 of 2014 preferred by the employer - Corporation and dismiss Special Civil Application No. 703 of 2015 preferred by the workman.

6. Heard Mr.H.C. Naidu, learned advocate for the employer GSRTC and Mr.N.R. Langa, learned advocate for

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the driver - workman.

7. FINDING :

7.1. Here in this case, the workman - petitioner of Special Civil Application No.703 of 2015 was punished vide order dated 28/3/2005 imposing punishment of stoppage of one increment with future effect and subsequently, by order dated 24/1/2002, imposing punishment of stoppage of one increment with future effect and vide order dated 17/1/2004, the workman was placed 5 scale lower down in his salary grade.

7.2. The dispute was raised by the workman before the Industrial Tribunal, Rajkot and the workman filed pursis Ex.44 stating that he is not pressing the punishment of stoppage of one increment with future effect vide order dated 24/1/2022. The learned tribunal on the basis of the written statement of the employer GSRTC and evidence on record, passed award dated 6/8/2014 in Reference (IT) No.106 of 2006.

7.3. In the Special Civil Application No.17566 of 2014, it is submitted that the employer - GSRTC has challenged the award of the Industrial Tribunal to the extent of granting notional benefits to the workman by modifying the punishment imposed vide order dated 28/3/2005 by quashing and setting aside the punishment of stoppage of

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one increment with future effect and granting notional benefits to the workman.

7.4. On the other hand, in Special Civil Application No.703 of 2015, the petitioner - employer GSRTC has challenged the award of the Industrial Tribunal, whereby the punishment of reduction of 5 stages in the pay scale of the workman was upheld.

7.5. Having heard the learned advocates for the respective parties and considering the material on record, it is not in dispute that first punishment which has been modified by the Industrial Tribunal regarding stoppage of one increment with future effect to the extent of notional effect is based upon an incident of 15/9/2004 wherein, the ST Bus met with an accident and the driver side part of the bus dashed with the door of the Swaminarayan temple and he bumper was damaged and repairing was undertaken in the workshop and there was damage of Rs.2000/- to the bus. It is also found in the inquiry that the driver workman, in order to evade the accident and to save a child, who was suddenly crossing the road, took the bus in off side of the road, as a result of which the bumper had dashed and there was damage of Rs.2000/-. Based upon these facts of the accident and inquiry papers, it was found that it was only an accident and there was no negligence of the driver workman and in these circumstances, it is observed that it

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was not negligent act of the driver workman to commit an offence of accident, but due to the circumstances, the accident had occurred. Recording detailed findings, when the Industrial Tribunal has modified the punishment, I do not find any error in the findings recorded by the Industrial Tribunal in modifying the punishment to grant of notional benefits.

7.6. So far as other punishment imposed upon the driver workman vide order dated 17/1/2004, is concerned, it has been found that the driver workman was found in possession of 20 bottles of liquor with him in the driver cabin and hence a criminal complaint was also lodged and charge was also framed against the driver workman and he was arrested in that offence. In the inquiry, statement of the witnesses were recorded and nothing has cone on record to falsify the say of thedepartment that the driver - workman was not having possession of liquor bottles. As such, the charge of having liquor is proved in the inquiry. As per the inquiry officer, the said misconduct has damaged the prestige of the employer GSRTC and hence the punishment was imposed upon the driver workman. Moreover, it is the case of the employer - Corporation that in the past also the workman had indulged in several acts of misconduct and offences and and based upon the findings of the inquiry and considering the facts and circumstances of the case, the Industrial Tribunal has upheld the punishment and has

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not interfered with the punishment.

7.7. So far as the submission of Mr.Langa, learned advocate for the workman that in the Criminal Case, workman has been acquitted but prior thereto, in the departmental inquiry punishment was imposed, and considering the acquittal of the workman i criminal case, some leniency is required to be shown and the punishment is required to be modified, is concerned, the decision of the Andhra Pradesh High Court in the case of Simhachalam Vs. The Depot Manager APSRTC and Ors., rendered in Writ Petition No.8675 of 1991 dated 21/2/1994 is required to be referred to. In the said decision, it is observed and held as under :-

"It is true that when a competent criminal Court holds a trial of charge of harsh and negligent driving and records a finding of acquittal after discussion of evidence and appreciation of the same, the departmental enquiry again re-

appreciating the said evidence in a manner contrary to that of a court of law is impermissible. But, where the criminal Court records a finding of acquittal not on merits of the appreciation of the evidence of the material witnesses, but only on the ground of the said witnesses turning hostile, such a judgement will not bind the disciplinary authority and the disciplinary authority in such cases is

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entitled to evaluate the evidence adduced in the enquiry held by him and can arrive at an independent decision."

Applying the aforesaid ration to the facts of the present case, this Court is of the opinion that though the inquiry is conducted by the disciplinary authority, it is independent of the result of the criminal case filed against the workman and as such, in view of the aforesaid decisions and looking to the facts of the case on hand, the submission of the learned advocate for the workman to show leniency on account of acquittal of the workman in criminal case, cannot sustain.

7.8. It is required to be noted that the act of misconduct committed by the workman was of a nature of moral turpitude, which is proved in the departmental inquiry, the employer - Corporation was very much lenient enough in not imposing major punishment of terminating the services of the workman and in imposing punishment of placing the workman 5 stages lower in his pay scale. More than enough leniency has been shown by the employer - Corporation and no error is committed by the learned Industrial Tribunal in modifying the order of punishment of withholding one increment with future effect to giving notional effect also upholding the punishment order of 17/1/2004. Under the circumstances, this court is of the opinion that no error is committed in imposing the punishment and hence the punishment is not required to be interfered with.

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7.9. Considering the award and material on record and submissions of the learned advocates for the respective parties, this Court is of the opinion that the Award passed by the Tribunal is just, legal and in accordance with the material on record and hence this Court is of the opinion that no interference is called for in the award passed by the Industrial Tribunal, Rajkot in Reference (I.T.) No. 106 of 2006 dated 6/8/2014.

8. In the result, Special Civil Application No.17566 of 2014 filed by the employer - GSRTC as well as Special Civil Application No.703 of 2015 filed by the driver workman, are hereby dismissed. Rule is discharged. In the facts and circumstances of the case, there shall be no order as to costs.

Sd/-

(RAJENDRA M. SAREEN,J) Rafik