[Cites 14, Cited by 0]
Gujarat High Court
Yogeshbhai Baliram Mane vs Divisiona Controller on 19 January, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17551 of 2023
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YOGESHBHAI BALIRAM MANE
Versus
DIVISIONA CONTROLLER & ANR.
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Appearance:
ROBIN PRASAD(9344) for the Petitioner(s) No. 1
MR HAMESH C NAIDU(5335) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 19/01/2026
ORAL ORDER
1. The present petition is filed by the petitioner-workman
under Articles 226 and 227 of the Constitution of India read with
the provisions of Industrial Disputes Act, 1947 seeking following
reliefs:
"A. Your Lordship may be pleased to call for record and proceedings
of the Ld. Industrial Tribunal and admit and allow this petition.
B. Your Lordship may be pleased issue a writ of mandamus or writ of
certiorari or any other appropriate writ, order or direction quashing
and setting aside the impugned award dated 31.5.2023 passed by
the Ld. Industrial Tribunal No.2, Vadodara in Reference Case (I.T.) No.
420/2020.
C. Pending hearing and till final disposal of this petition, by way of
interim relief, Your Lordship may be pleased to stay operation,
implementation and execution of award dated 31.5.2023 passed by
the Ld. Industrial Tribunal No. 2, Vadodara in Reference Case (I.T.)
No. 420/2020 and direct Divisional Controller, State Transport
Vadodara Vibhag to give 20% of the total increment that has been
withheld from the petitioner from 11.4.2017 due to the departmental
proceedings.
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D. Any other relief deemed just and proper may please be granted in
the interest of justice."
2. Brief facts giving rise to the petition are that, the
petitioner-workman was working as a Driver with the respondent-
Corporation since 05.03.1996. That, due to many quarrels with
one female Bus Conductor-Smt. Paraskumari R. Parmar while on
duty, on the basis of complaint filed by the said female Bus
Conductor and pursuant to disciplinary inquiry against the
petitioner, the petitioners' increment of salary was stopped for a
period of three years by order dated 11.04.2017 by respondent
No. 1. That, the altercation had also led to filing of criminal
complaint being FIR No. I/266/2014 on 10.07.2014 under
sections 294(b) and 506(2) of the Indian Penal Code whereby,
the petitioner was acquitted by the Trial court being Criminal
Case No. 51477/2014 on 27.10.2017. Thereafter, the petitioner-
workman raised industrial dispute before Assistant Commissioner
of Labour and consequently the dispute was referred to the
Industrial Tribunal, Vadodara for adjudication. The Industrial
Tribunal by impugned award dated 31.05.2023 confirmed the
decision rendered by respondent No. 1.
3. Being aggrieved and dissatisfied with the impugned award
dated 31.05.2023 passed by the Industrial Tribunal, the
petitioner-workman has preferred the present petition.
4. Heard Mr. Robin Prasad, learned counsel for the petitioner
and Mr. Hamesh C Naidu, learned counsel for respondent No. 1.
Perused the material available on record.
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5. Learned counsel Mr. Prasad has submitted that the
impugned award passed by the Tribunal is illegal, unjust,
arbitrary, erroneous and contrary to the facts and material on
record and the provisions of the Act and therefore, is required to
be quashed and set aside. He has submitted that the Tribunal
had not considered the fact that period of limitation will only
arise if the reference is tried to be raised after a substantial
period of time without citing any explanation as to cause of
delay. The Industrial Disputes Act does not prescribe any specific
period of limitation. He has submitted that the respondent had
initiated a departmental inquiry while criminal proceedings
against the petitioner were still pending and passed a penal
order to stop increment of the petitioner for three years and,
therefore, that inquiry was illegal and unjust and the penal order
imposed by the respondent was illegal and irrational and
therefore, the petition is preferred on a ground of
disproportionality and being against the settled principle of
natural justice. Over and above the grounds agitated in the
memo of petition, learned counsel Mr. Prasad has urged that the
impugned award passed by the Tribunal is required to be
quashed and set aside and the present petition is required to be
allowed.
6. Mr. Naidu, learned counsel for the respondent contested
the same by filing written statement where all the averments
made by the petitioner-workman was denied in toto. He has
submitted that the penal order was passed on 11.04.2017 and
the same was challenged after long delay of three years and the
delay was not satisfactorily explained by the petitioner-workman.
He urged that after considering all the relevant facts and
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documentary evidences the respondent had already imposed a
minor punishment instead of termination of service and,
therefore, the petition was devoid of any merits and the same
deserves to be dismissed and the impugned award passed by
the Tribunal deserves to be confirmed.
7. After considering the relevant documentary evidence and
the facts of the case, the Tribunal has framed the following
issues in paragraph 9:
"Issue No. (1) Whether the order of the First Party
organization dated 11/04/2017 to stop the annual increment of
the concerned workman for three years with permanent effect
is unfair, illegal, and against the principles of natural justice?
Issue No. (2) Whether the opponents are liable to
compensate for all the financial losses incurred due to the order
of punishment?
Issue No. (3) Whether the present reference is liable to be
rejected on the grounds of delay?
Issue No. (4) What order?"
7.1 The Tribunal has replied the issues in detail in paragraph
10 which is reproduced herein under:
"(10) Reasons: Issue Nos. (1) and (2)
(10.1) In this case, an affidavit of examination-in-chief of
the concerned workman Yogeshbhai Baliram Mane has been
produced by the Second Party at Exhibit-12. Wherein, facts as
mentioned in the statement of claim have been stated. He has
been cross-examined by the First Party, but no contrary facts
have come to light. In this case, an affidavit of examination-in-
chief of Smt. Nimishaben R. Shah, who conducted the
preliminary inquiry, has been produced by the First Party at
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Exhibit-16. Wherein, it is stated that the departmental inquiry
against the concerned workman was conducted in a legal
manner and that the concerned workman was given sufficient
opportunity to defend himself in the departmental inquiry. In
this case, the concerned workman, through a pursis at Exhibit-
14, has declared that he does not challenge the legality of the
departmental inquiry and has declared that he only challenges
the findings of the departmental inquiry. Therefore, the
evidence brought on record regarding the allegations made in
the chargesheet against the concerned workman in the
departmental inquiry is to be considered. Thus, the facts
regarding the charges mentioned in the oral evidence on oath
of the person who conducted preliminary inquiry produced by
the First Party at Exhibit-16 are not relevant facts for the
decision of the present dispute.
(10.2) Considering the chargesheet at Mark-10/23 against
the concerned workman, a complaint was made by Smt.
Paraskumari R. Parmar, female conductor, Badge No. 3406,
stating that during fixed duty on the Laxmipura Ahmedabad
route, he tried to make her fall by applying brakes while the bus
was in motion, repeatedly sent her to fill water bottles, asked
for toll tax receipts four times in a moving bus, claimed she did
not know how to help in getting the vehicle reversed, and he
harassed her by using abusive words in the presence of
passengers saying that a lady conductor is not required and
gave threats by asking her to leave the job. Based on the
statements taken during the investigation of said complaint, as
well as the oral complaint made to the Depot Manager by
female conductor Smt. Priyankaben Barot, Badge No. 1794,
serving at Panigate Depot, regarding harassment in depositing
Intercity Stand cash, and in relation to the police complaint filed
by Smt. Paraskumari under IPC Sections 294(b), 506(2), the
chargesheet has been issued stating the concerned workman
was found entirely responsible. Reading the papers regarding
the departmental inquiry proceedings produced by the First
Party at Mark-10/52, the concerned workman appeared in the
departmental inquiry and denied the charges against him.
Regarding the allegations made against the concerned
workman in the departmental inquiry, the deposition of Smt.
Nimishaben R. Shah, who recorded the statements of the
complainant and witnesses during the preliminary inquiry as
the Chairperson of the Internal Complaints Committee for
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Sexual Harassment of Women, was recorded before the Inquiry
Officer. Wherein, she stated the facts mentioned by the
complainant and witnesses in the complaint as also the facts
mentioned in the statements during the preliminary inquiry. In
the departmental inquiry, the deposition of complainant
Paraskumari Ranjitsinh Parmar or any other witness has not
been recorded. Thus, no evidence of the person making the
allegations or any witness has come on record to prove the
allegations as mentioned in the chargesheet in the
departmental inquiry. Thus, despite no evidence being brought
on record in the departmental inquiry regarding the allegations
mentioned in the chargesheet, the concerned workman was
held responsible and an order of punishment was passed on
11/04/2017 to stop his ensuing annual increment for three
years with permanent effect. Moreover, reading the Judgment
dated 27/10/2017 of the 4th Judicial Magistrate First Class,
Vadodara Court in Criminal Case No. 51477/2014 produced by
the Second Party at Mark-13/1, the concerned workman has
been ordered to be acquitted of the offenses under IPC Sections
294(b), 506(2), and it is noted in the evidence on oath of the
complainant-witnesses that the accused had not behaved
strangely, had not uttered any obscene abuses or words hurting
self-respect, nor had the accused given any threats, and it is on
record that no incident occurred other than a normal verbal
exchange. Thus, considering the above entire facts, it is proved
that the order of punishment dated 11/04/2017 passed by the
opponent in Chargesheet No. 52/2017 holding the Second
Party-concerned workman to be responsible is unfair, illegal,
and against the principles of natural justice. Therefore, the said
order is liable to be set aside and the opponent is held liable to
compensate for the financial loss caused to the concerned
workman by the said order of punishment.
ISSUE No.3
(10.3) In the reply filed at Exhibit-9 on behalf of the First
Party, a contention has been raised that the First Party had
passed a punitive order vide Punishment Order No. 39/2017
dated 11/04/2017. Therefore, the Second Party has not filed the
present Reference within the prescribed period of limitation and
has filed it after a delay of approximately four years. Therefore,
the present Reference deserves to be dismissed on the grounds
of delay. A copy of Punishment Order No. 39/2017 has been
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produced on behalf of the First Party vide Mark-10/55. Upon
perusal of the same, a punishment order was indeed passed
against the concerned workman on 11/04/2017. Furthermore,
vide Mark-10/56, the First Party has produced a copy of the
application made by the concerned workman to the First Party
seeking the cancellation of the said Punishment Order No.
39/2017. Upon perusal of the same, it appears that the
concerned workman had submitted an application to the First
Party through the Divisional Director, S.T., Vadodara, on
29/12/2017 to set aside the punishment order. It was explicitly
stated in Punishment Order No. 39/2017 that permission was
granted to prefer an appeal against the said order within 30
days. Thus, despite having knowledge and permission to file an
appeal within 30 days, the concerned workman did not appeal
to set aside the said order within the stipulated 30 days and
instead submitted an application to the First Party after a
considerable lapse of time on 11/04/2017. No explanation or
clarification has been offered by the concerned workman in this
regard. Furthermore, no documentary evidence has been
produced to show that the concerned workman initiated any
proceedings or correspondence with the First Party institution
regarding the cancellation of the punishment order until the
filing of the present Reference. Additionally, after the
punishment was imposed vide Punishment Order No. 39/2017
dated 11/04/2017, the present dispute was raised in 2020 after
a delay of approximately three years. Despite the contention
raised by the First Party in the written statement at Exhibit-9,
the Second Party has failed to provide any explanation or
clarification in the oral evidence led on affidavit at Exhibit-12,
nor has any reason been shown or evidence produced
regarding the raising of the present dispute after a long delay
of three years.
It is held as follows in Paragraph-20 of the judgment of
the Hon'ble Supreme Court in the case of Assistant Engineer,
Rajasthan State Agriculture Marketing Board, Sub-
Division, Kota V/S. Mohan Lal [2013 0 Supreme (SC)
746]:
20. We are clearly of the view that though Limitation
Act, 1963 is not applicable to the reference made under
the I.D. Act but delay in raising industrial dispute is
definitely an important circumstance which the Labour
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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 Singh that before exercising
its judicial discretion, the 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 grant of
relief in an industrial dispute, must be invariably followed.
It is held as follows in Paragraph-4.4 of the judgment of the
Hon'ble High Court of Gujarat in the case of Gujarat State
Road Transport Corporation V/S. Prabhatsinh Kalyansinh
Solanki & Ors. [2017 0 Supreme (Guj) 1065]:
4.4 In the present cases also there is no
explanation on behalf of the workmen, qua delay. The
above referred decisions would tilt the balance against
the responder workmen in the present case. The
respondent workmen had disentitled themselves to claim
any relief, on this additional count also.
Thus, considering the aforementioned judgments of the
Hon'ble Supreme Court and the Hon'ble Gujarat High Court, if
no sufficient cause is shown or no explanation is offered for the
delay in filing proceedings under the Industrial Disputes Act and
the Industrial Disputes Rules, such delay cannot be condoned.
Furthermore, delay in raising an industrial dispute is certainly a
vital circumstance, and the Court must take the factor of delay
into account while deciding the dispute, regardless of whether
the opposing party has raised a contention in that regard or
not. As discussed earlier in this case, despite the First Party
having raised a contention regarding this in the written
statement at Exhibit-9, the Second Party has failed to provide
any explanation or clarification in the oral evidence led on
affidavit at Exhibit-12. No reason has been assigned nor has
any evidence been produced for raising the present dispute
after a long delay of three years. Therefore, as the concerned
workman initiated no proceedings against the punishment
order for a long period of three years, it is deemed that they
have accepted the said punishment order, and...Therefore,
even if the punishment order were to be unfair, illegal, or in
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violation of the principles of natural justice, as per the legal
principles established in the aforementioned judgments, the
punishment order cannot be set aside; nor can the Opponent be
ordered to compensate for the financial loss suffered by the
concerned workman due to the said punishment order. Under
these circumstances, the present Reference is liable to be
dismissed solely on the ground of delay. Consequently, the
decision on Issue No. 3 is rendered in the Affirmative."
8. I have heard the learned advocates appearing for the
respective parties and perused the material placed on record. I
have also considered the award passed by the Industrial
Tribunal. The Tribunal has, after considering the facts, rightly
rejected the reference of the petitioner-workman after
considering the decision of the Hon'ble Supreme Court reported
in the case of Assistant Engineer, Rajasthan State Agriculture
Marketing Board, Sub-Division, Kota(supra) and the decision of
this Court in the case of Gujarat State Road Transport
Corporation(supra). So in view of the delay in preferring the
reference, the Tribunal has rejected the same. Considering the
fact that other 13 offences and defaults were reported against
the petitioner-workman and the said default card was produced
before the Tribunal, it is now well settled that in a case of
punishment/penalty, based upon the inquiry conducted by the
Inquiry Officer, normally the Court may not interfere as the Court
is not sitting an appeal or reviewing the decision of the Inquiry
Officer and in view of the matter, since the petitioner-workman is
involved in as many as 13 defaults and some of the defaults are
serious in nature, the authority has passed the order for
stoppage of three increments with future effect which is not
required to be interfered with by this Court. The contention was
raised by the petitioner-workman that he was acquitted in the
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criminal case by the concerned trial court but it was not a clear
acquittal as he was given a benefit of doubt but considering the
fact that there are earlier 13 defaults recorded against the
petitioner-workman which was taken on record for which
materials were produced before the Tribunal and, therefore,
under such circumstances, I am of the opinion that there is no
infirmity or illegality in the award passed by the Tribunal. Hence,
the petition is devoid of any merits and the same deserves to be
dismissed. So far as the proportionality of punishment is
concerned, the Court is not sitting an appeal over the decision
taken by the Inquiry Officer and it is well settled by this Court
and Hon'ble Supreme Court that in a case of imposition of the
penalty/punishment, the Court may not interfere with the
findings recorded by the Inquiry Officer or confirmed by the
appellate authority.
9. In the case of Gujarat State Road Transport Corporation Vs.
Prabhashanker K. Acharya, 1992 (2) G.L.H. 354, this Court has
held and observed in paragraphs 16,17,23,25,27,29,31 as under:
"16. We shall now proceed to consider the scope and ambit of Sec.
11A, Industrial Disputes Act. Provisions of Sec. 11A were
incorporated as the Supreme Court made certain observations, as
set out above, in Indian Iron & Steel Company Limited (supra). The
Supreme Court, while considering the Tribunal's power to interfere
with the management's decision to dismiss, discharge or terminate
the services of workman, observed that in case of dismissal of
misconduct, the Tribunal does not act as a Court of Appeal and
substitute its own judgment for that of the management and that
the Tribunal will interfere only when there is want of good faith,
victimisation, unfair labour practice, etc. The International Labour
Organization in its recommendation concerning 'termination of
employment at the initiative of the employer' adopted in Jun. 1963,
recommended that the worker aggrieved by the termination of his
employment should be entitled to appeal against the termination,
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amongst others, to a natural body such as an arbitrator, a Court, an
arbitration committee or a similar body and such body should be
empowered to examine the reason given in the termination of
employment and the other circumstances relating to the case and to
render a decision on the termination. The International Labour
Organization also recommended that the neutral body should be
empowered to afford some other relief. As set out in the objects and
the statement of the Amending Act 45 of 1971, the said reasons led
to the insertion of Sec. 11A in the statute book. Sec. 11A, Industrial
Disputes Act provides that where an Industrial Dispute relating to
the discharge or dismissal of the workman has been referred to the
Labour Court, Tribunal or National Tribunal, for adjudication and, in
the course of the adjudication proceedings, the Labour Court,
Tribunal or National Tribunal as the case may be, is satisfied that
the order of discharge or dismissal was not justified, it may, by its
award, set aside the order of discharge or dismissal and direct
reinstatement of the workman on such terms and conditions, if any,
as it thinks fit, or give such other relief to the workman including the
award of any lesser punishment in lieu of discharge or dismissal as
the circumstances of the case may require. The submission of
learned Advocates appearing for the management is that the power
is confined only for the punishment of discharge or dismissal, while
the submission of the learned Advocate appearing for the workman
is that the intention of the Legislature was to empower or vest the
jurisdiction to interfere with other kinds of punishment or to
substitute one kind of punishment for another. Sec. 11A only
empowers the Labour Court or the Tribunal to interfere with the
punishment regarding the discharge or dismissal of the workman
and it does not specifically refer to any other kind of punishment. It
also empowers the Labour Court or Tribunal to interfere with the
order of discharge or dismissal if it is not satisfied that such
punishment was justified and in that case, it may set aside the order
of discharge or dismissal and direct the reinstatement on such
terms and conditions as it may think fit. The Labour Court or
Tribunal may, in such cases, grant other relief including the lesser
punishment in lieu of discharge or dismissal. As the section does not
refer to other kinds of punishment, which the management is
entitled to award for certain acts of misconduct, it cannot be
accepted that this Section empowers and vests jurisdiction in the
Labour Court or Tribunal to interfere with the order of punishment or
to substitute other kinds of punishment than the one imposed by
the management. The Legislature must be aware of the restricted
jurisdiction and the powers of the Labour Court of the Industrial
Tribunal enunciated by various judgment of the Supreme Court, as
discussed above, and even then did not vest the jurisdiction or
empower the Labour Court or the Industrial Tribunal to interfere with
or substitute other kinds of punishment than that of the discharge or
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dismissal. If at all the intention of the Legislature, would have been
to substitute other punishment, it would have specifically included
them in Sec. 11A and would not have confined it to the punishment
of discharge or dismissal. It also cannot be accepted that it reflects
the intention of the policy of the Legislature and, therefore, the said
principles should also be made applicable to other kinds of
punishment. If at all that would have been the policy and the
Legislature wanted to restrict the managerial power for other kinds
of punishment, there was no reason for not making such provisions
in Sec. 11A or in any other provisions of the Act.
17. The provisions of Sec. 11A are extensively considered by the
Supreme Court in The Workmen of M/s Firestone Tyre & Rubber Co.
of India P. Ltd. V/s. The Management and Others, A. I. R. 1973 SC
1127, in which the purposes and objects of incorporating Sec. 11A
are set out. Their Lordships were considering the interpretation of
Sec. 11A, Industrial Disputes Act. After extensively discussing and
setting out the law on the powers and jurisdiction of the Labour
Court or Industrial Tribunal under the Industrial Disputes Act, Their
Lordships considered change in the legal position effected by the
incorporation of Section 11A and in terms observed that in the cases
in which the employer had held the proper and valid domestic
inquiry before passing of the order of punishment, the Tribunal had
no power to interfere with the finding of misconduct recorded by the
domestic inquiry unless the infirmity as pointed out in the case of
Indian Iron & Steel Co. Ltd. (supra) existed. The conduct of the
disciplinary proceeding and the punishment to be imposed were all
considered to be the managerial function which the Tribunal has no
power to interfere unless the findings were perverse or the
punishment was so harsh as to lead to inference of victimisation or
unfair labour practice. This position is now clothed with the power to
reappraise the evidence in the domestic enquiry and satisfy itself
whether the said evidence relied on by the employer established the
misconduct alleged against the workman. What was originally
plausible conclusion that could be drawn by an employer from the
evidence, has now given place to the satisfaction being arrived at by
the Tribunal that the finding of the misconduct is correct. The
limitations imposed on the power of the Tribunal by the decision in
Indian Iron & Steel Company Ltd. no longer be invoked by the
employer and the Tribunal is at liberty to consider not only whether
the finding of misconduct recorded by the employer is correct, but
also to differ from the said finding if a proper case is made out.
What was once largely in the realm of the satisfaction of the
employer has ceased to be so, and now it is the satisfaction of the
Tribunal that finally decides the matter. Considering the provisions
of Sec. 11A, Industrial Disputes Act, Supreme Court in Ramakant
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Misra V/s. State of U. P. and Others, A. I. R. 1982 SC 1552 observed
that, it is now clear that the Labour Court has the jurisdiction and
power to substitute its measure of punishment in place of
managerial wisdom once it is satisfied that the order of discharge or
dismissal was not justified in the facts and circumstances of the
case. It is also observed that before exercising the discretion
conferred under Sec. 11A, the Court has to be satisfied that the
order of discharge or dismissal was not justified in the facts and
circumstances of the case and the said words indicate that, even
though the misconduct is proved and the penalty has to be
imposed, the extreme penalty of dismissal or discharge was not
justified in the facts and circumstances of the case meaning thereby
that the punishment was either disproportionately heavy or
excessive. Their Lordships of the Supreme Court in case of The
Workman of Firestone Tyre and Rubber Co. (supra) proceeded to
consider the circumstances in which no inquiry is held by the
employer or even if the inquiry is held, the same is held to be
defective. In such a case, the Tribunal in order to satisfy itself about
the legality and validity of the order had to give an opportunity to
the employer and employee to adduce evidence, even for the first
time justifying the action. Even after the incorporation of Sec. 11A,
that legal position has remained unchanged. In that case also the
issue about the merits of the impugned order of dismissal or
discharge is at large before the Tribunal and then it has to decide
whether the misconduct alleged is proved and the exercise of
managerial function does not arise at all. Their Lordships observed
that, both in respect of cases where the domestic inquiry has been
held as also in the cases where the Tribunal consider the matter on
the evidence adduced before it for the first time, the satisfaction
under Sec. 11A about the guilt or otherwise of the workman
concerned is that of the Tribunal. It has to consider the evidence
and come to a conclusion one way or the other. Even in the cases
where an inquiry has been held by the employer and the finding of
misconduct is arrived at, the Tribunal can differ from that finding in
a proper case and hold that no misconduct is proved. The Tribunal
will have to reappraise the evidence for itself arriving at the proper
conclusion. Ultimately, the Tribunal may hold that the misconduct is
not proved or that the misconduct proved does not warrant the
punishment of dismissal or discharge. Sec. 11A gives full power to
the Tribunal to go into the evidence and satisfy itself on both these
points. The another change that has been effected by Sec. 11A is
the power conferred on the Tribunal to alter the punishment
imposed by the employer. Even though in case the misconduct is
held to be established, the Tribunal may be of the opinion that the
order of discharge or dismissal for the said misconduct is not
justified and does not merit punishment by way of discharge or
dismissal. In such circumstances, Tribunal may award only lesser
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punishment. The power to interfere with the punishment and alter
the same is conferred by Sec. 11A on the Tribunal. These
observations by the Supreme Court are an answer to the arguments
advanced by the learned Advocates for the management. The effect
and the change in the law by Sec. 11A is, however, relating to the
punishment of discharge and dismissal and not for other kinds of
punishment. Managerial rights are now restricted to that extent
under Sec. 11A and the jurisdiction of the Labour Court and the
Tribunal is widened to that extent so far as the finding of
misconduct and the punishment of discharge and dismissal are
concerned. The law on the point for other kinds of punishment
except the punishment of discharge or dismissal remains unaffected
by the provisions of Sec. 11A, Industrial Disputes Act.
Special Civil Application No. 4225 of 1986:
23. The Tribunal found that the respondent-driver was negligent
and the accident resulted in the death of the shepherd and some
goats. In view of the Tribunal, the punishment of putting the
respondent driver back in the lowest stage of the time-scale is too
harsh and the recurring monthly loss would be about Rupees 100/--.
The Tribunal, accordingly, substituted the punishment by the
punishment of withholding of the increments for two years with
permanent effect. It is, therefore, evident that the Tribunal found
that the driver was negligent and the death of the shepherd and
goats were caused by the negligent driving of the driver, and even
then, interfered with the order of punishment by observing that it is
too harsh. It appears that the Tribunal failed to appreciate the fact
that the respondent driver was reinstated in service by the appellate
authority. The punishment awarded can never be considered to be
shockingly harsh or the act of victimisation. As such, there was no
convincing reason for the Tribunal to interfere with the order by the
appellate authority. The order by the Tribunal, therefore, should be
set aside and that of the appellate authority should be reinstated.
We, therefore, allow the petition, set aside the order by the Tribunal
and restore the order passed by the appellate authority. Rule is
made absolute with no order as to costs.
Special Civil Application No. 5815 of 1986:
25. The road booking in violation of the instructions was
established even though the dishonesty of the conductor was not
held to be proved, in spite of the fact that the tickets were not
issued to certain passengers after the fare was collected and,
therefore, the punishment of reducing four stages in scale of pay of
the respondent No. 2 was passed. The Tribunal agreed with the
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finding of the inquiry authority, but held that the punishment was
harsh and excessive looking to the gravity of the default. The
Tribunal, accordingly substituted the penalty of placing the
respondent No. 2 one stage back without permanent effect. As such,
there was no convincing reason for the Tribunal to interfere with the
order of punishment and it appears that the Tribunal has substituted
the punishment as if it was exercising appellate jurisdiction. The
Tribunal, accordingly exercised the jurisdiction not vested in it and
did not function within the limits of its authority. The order by the
Tribunal, therefore, should be set aside and that of the Competent
Authority should be restored. We, therefore, allow the petition, set
aside the order by the Industrial Tribunal, Rajkot and restore the
order passed by the departmental Competent Authority. Rule is
made absolute with no order as to costs.
Special Civil Application No. 5207 of 1987:
27. For the misconduct of misappropriating the money by the
respondent No. 1-conductor by not issuing the ticket and for other
acts of misconduct, he was dismissed in departmental inquiry and
that punishment was confirmed in First Appeal, but the Second
Appellate Authority directed reinstatement, but awarded the
punishment of putting the respondent on the minimum of the pay
scale, in spite of the fact that various acts of default were
committed by the respondent in past. The Industrial Tribunal,
Ahmedabad reduced the penalty, directing to withhold the
increments for three years with permanent effect only on the
ground that the respondent will be financially affected by such
punishment as he had put in the service of about 15 years. In view
of the proved misconduct and dishonesty, there was no reason as
such for the Tribunal to interfere with the order of punishment. The
Tribunal exercised the jurisdiction not vested it and exceeded the
authority, and, therefore, the order of the Tribunal should be set
aside the petition is allowed. The order by the Industrial Tribunal,
Ahmedabad is set aside and that of the Second Appellate Authority
is restored. Rule is made absolute with no order as to costs.
Special Civil Application No. 1359 of 1988:
29. The misconduct did not involve dishonesty and the Tribunal
also found that the punishment for attending duty one hour late was
excessive, harsh and punitive. The workman had lost the past
wages also. The punishment being oppressive, leading to the
inference of victimisation of the workman, the Tribunal was justified
in interfering with the order of punishment. Petition is, accordingly,
dismissed. Rule is discharged with no order as to costs.
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Special Civil Application No. 3544 of 1988:
31. The facts are extensively discussed above. It is apparent that
the respondent was in possession of the cheque-book and cheque
was lost, and some other acts were also committed by the
respondent, which facilitated the withdrawal of Rupees 74,500/--
from the bank under forged signatures. In a departmental inquiry,
the Competent Authority directed to stop two increments of the
respondent with future effect and the period of suspension of the
respondent was treated as the suspension period with 50 per cent of
the salary. The appeal was also dismissed by the appellate
authority. The Industrial Tribunal, Ahmedabad upheld the order of
the Chief Executive Officer to consider the suspension period as
period under suspension, but considering the fact that the
respondent was acquitted in the criminal case and, therefore, in
departmental inquiry lighter charges were proved and observing
that the Corporation was not caused any financial loss by the
negligence of the respondent, the Tribunal directed to pay the
salary for the period of suspension and also interfered with the order
withholding two increments with permanent effect and directed to
withhold two increments without permanent effect. It is clear from
the discussion that the misconduct of the respondent was proved
and because of his negligence, the cheque was lost from his custody
and it was presented in the bank, and the amount of Rupees
74,500/-- was withdrawn. It was also proved that the respondent did
not care to tally the amount with the bank in spite of the instruction.
The Tribunal had, therefore, no valid reason to hold that no loss was
caused to the Corporation because of the negligence of the
respondent. It is also clear that the criminal case was filed against
the respondent and he was suspended and the departmental inquiry
was instituted against him for the acts of misconduct, and,
ultimately, some charges were proved. In such circumstances, there
was no valid reason for the Tribunal to direct to pay the salary for
the suspension period or to interfere with the order of punishment.
The Tribunal exercised the jurisdiction and authority not vested in it
and, therefore, the order of the Tribunal should be set aside. The
petition is, accordingly, allowed. The order by the Industrial Tribunal,
Ahmedabad is set aside and that of the punishment imposed in the
departmental inquiry is restored. [Rule is made absolute with no
order as to costs.]"
9.1 In the case of Divisional Controller Vs. Babubhai Madhavrao
Nai, 2016 JX(Guj) 924, this Court has held and observed in
paragraphs 14,16,18,19,20,21,22,25 as under:
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"14. From the above mentioned facts, following aspects have
clearly emerged:
[a] For alleged misconduct of serious - rather grave nature - domestic
inquiry against the respondent was conducted after issuance of
charge sheet.
[b] The Inquiry is found legal and fair and the learned Tribunal did
not find any defect in the domestic inquiry.
[c] The learned Tribunal also found that the findings recorded by the
Inquiry Officer holding that the charge levelled against the
respondent is proved, is just and fair in respect of most of the
allegations (i.e. except the allegation of consumption of liquor).
[d] The decision of the or review authority is not vitiated by mala
fides or victimization.
16. On this count, be it noted that the learned Labour Court's /
Tribunal's power under section 11A of the Act are not arbitrary or
unguided. The said power should be exercised judiciously and the
learned Court or learned Tribunal cannot lightly or casually or
mechanically interfere with employer's decision as regards quantum
of penalty even in cases where penalty is imposed after fair inquiry
and for proved misconduct.
16.1 When the Court finds that the inquiry is legal and fair and the
allegations are proved, then, the learned Labour Court or the learned
Tribunal would not be justified in exercising power under Section
11(A) so as to interfere with the employer's decision about quantum
of penalty, more particularly when it is not proved that penalty is
imposed out of and on account of or as measure of victimization or
by way of mala fide or when the penalty is short of dismissal or
discharge (i.e. the penalty imposed by the employer is other than
penalty of discharge or dismissal). In present case, the penalty
imposed by the disciplinary authority as well as review authority are
"other than dismissal or discharge" i.e. short of dismissal or
discharge and the learned Tribunal has not recorded conclusion that
penalty determined by employer smacks of victimization and/or is
vitiated by mala fides. In this view of the matter, the learned Tribunal
could not have interfered with the order of review authority.
18. In view of the decision by Hon'ble Division Bench the
impugned award cannot be sustained because in present case on
one hand the review authority did not impose penalty of dismissal or
discharge (meaning thereby the penalty imposed by the employer is
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short of / other than discharge or dismissal) and on the other hand
the learned Tribunal held that the inquiry is legal and fair and the
learned Court also held that the allegations (except the allegation
about consumption of liquor) are proved and that, therefore, it was
not open and permissible for the learned Court to interfere with and
to set aside / reduce the penalty (i.e. employer's decision as to the
quantum of penalty) determined by the review authority which was
short of dismissal or discharge and when neither the workman
alleged nor even the Court found that the penalty is determined as a
measure of victimization or out of mala fide intention.
19. In this backdrop the learned Tribunal did not have any
jurisdiction to interfere with such penalty. Therefore, the impugned
award does not deserve to be sustained and it deserves to be set
aside.
20. The impugned award is passed without considering the said
decision by Hon'ble Division Bench in case of Gujarat State Road
Transport Corporation vs. P.K. Acharya (supra).
21. Now, so far as the observation by learned Tribunal to the
effect that the review authority does not have power to enhance
penalty imposed by the disciplinary authority is concerned, it is
pertinent that the learned Tribunal failed to consider the judgment
by Hon'ble Division Bench in case of Gujarat State Road Transport
Corporation v. M.L.Makwana & Ors. [Civil Reference No.1 of 2007
decided on 24.10.2007] wherein below mentioned issue was referred
to Hon'ble Division Bench for consideration:
".......... as to whether the reviewing authority/ appellate authority
has power to enhance the punishment keeping in view the provisions
of clause 8 and 9 of the Procedure referred to hereinabove."
22. The learned Tribunal's decision is rendered without
considering the decision by Division Bench inasmuch as while
answering the reference, Hon'ble Division Bench held and observed
that:
"10.1 From the Scheme of the Procedure, we find that the only
power, which can be read to be with the Appellate Authority in the
mater of enhancement of punishment or in case of discharge of a
delinquent, has to be under Clause 9 of the Procedure. If an order is
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passed by the competent authority, which aggrieves the delinquent,
he has a right of appeal as provided under Clauses 7 & 8. But, if the
order of competent authority aggrieves the employer (Corporation),
the source of powers is found in Clause9, as it invests Appellate
Authority with powers to, suo motu, review the order by competent
authority. If this construction is not given and clause 9 is read to limit
the powers of the Appellate Authority only for the purpose of the
procedural aspect, the object of investing the Appellate Authority
with the powers to review the decision of the competent authority
would be frustrated. If it was intended not to provide any remedy to
the Employer/Corporation in a situation of decision of competent
authority going against it, there was no need to incorporate Clause9,
since right of appeal is already provided in Clauses 7 & 8. In our
view, clause 9, though not worded with exactness, is intended to
empower the Appellate Authority to examine orders of Competent
Authority which may not come in appeal i.e. which do not go against
employee and are not likely to aggrieve the employee.
10.2 It is this lack of accuracy, which has resulted in use of word
`review' in clause 9. It is right to contend that `review' has to be by
the same authority who passes the order and `review' by Appellate
Authority can not be contemplated, but here, if the Scheme of the
Procedure is seen, the word `review' used in clause9 has to be read
to mean revision. Differently put, clause9 invests the Appellate
Authority with revisional powers in a given set of situation.
11. We have reasons for taking the above view. If Clause 10 is seen,
it empowers the Appellate Authority to examine the questions,
whether the punishment is excessive, adequate or inadequate, and
after doing so, pass such order as it thinks proper. The power,
therefore, is not only for examining the question, whether the
punishment is excessive or adequate, but, also to examine whether it
is inadequate, and these powers are vested in the Appellate
Authority even in a situation, where appeal is preferred by the
delinquent, who is aggrieved by the order of punishment. Therefore,
if the Appellate Authority enjoys powers to examine question of
inadequacy of punishment while examining an appeal of the
employee, Clause9 has to be read so as to invest the Appellate
Authority with suo motu powers to call for enquiry papers, and to
review/revise the decision as it may deem fit. The words "as it may
deem fit" have to be given a wide import as to empower the
Appellate Authority to enhance the punishment also only then the
equity will be established.
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13. A contention was raised before us that Clause 20 is the clause
which has to be resorted to in the event the Corporation finds that
the punishment imposed is inadequate or the order of discharge of
the delinquent is improper. Clause20 runs as under:
"20. The Appellate Authorities appointed by the Corporation for
hearing appeals and reviewing cases are those shown in Schedule
`C'. Any officer higher than the prescribed Appellate Authority has
inherent powers to call any case papers and review the decision or
hear the appeal or direct any other authority to hear the appeal."
13.1 A plain reading of Clause 20 makes it clear that it speaks of
inherent powers of any officer higher than the prescribed Appellate
Authority to call for papers of any case and review the decision or
hear the appeal or direct any other authority to hear the appeal. This
clause, therefore, deals with inherent powers of officer higher than
prescribed Appellate Authority and not that of the Appellate
Authority. The powers also include power to hear an appeal or direct
another authority to hear the appeal. By this provision situation
contemplated are different and include hearing of appeal by higher
officer or by another authority. Further, these are the inherent
powers which may be used in exceptional situation. We are,
therefore, not able to accept the contention that Clause 20 can be
and has to be resorted to in such a situation.
14. It was also contended that Clause 14 has to be resorted to in the
event the Appellate Authority finds that the punishment is
inadequate and the matter should be remanded to the competent
authority. We are unable to accept this contention either. Clause14
runs as under :
"The authority, to whom an appeal lies under these provisions, shall
decide it himself and shall pass such orders on the appeal as he
thinks fit, after verifying whether the prescribed procedure has been
followed by the Enquiry Officer and whether there was any material
irregularity likely to vitiate the decision of the Competent Authority
(or the 1st Appellate Authority in case of a second appeal). In case
the Appellate Authority feels that there has been such an irregularity,
it may direct the Competent Authority (or the 1st Appellate Authority
in case of a second appeal) to make up the irregularity and to submit
the case to the Appellate Authority".
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14.1 This clause, if read, makes two provisions. The first being that
the Appellate Authority has to decide the appeal himself and pass
such orders on the appeal as it thinks fit. This would mean that the
Appellate Authority cannot delegate its powers to anybody-else.
14.2 Clause 14 also envisages that the Appellate Authority has to
examine the question whether Inquiry Officer has committed any
material irregularity in conduct of the inquiry, which is likely to vitiate
the decision of the competent authority, and if such material
irregularity is found, the Appellate Authority may direct the
competent authority to make up or cure the irregularity and then
submit the case to the Appellate Authority. The contention,
therefore, that the Appellate Authority, under Clause 14 in case of
inadequate punishment, has to send back the papers to the
competent authority, cannot be accepted, because ultimately, the
papers are required to be sent back to the Appellate Authority for
consideration. The remand of the case is only for the limited purpose
of curing a material irregularity, which may have been found by the
Appellate Authority and, which, in its opinion, is likely to vitiate the
decision of the competent authority.
15. Ordinarily, powers of review are contemplated in respect of the
same authority who passes the order. But, here, these powers are
vested in the Appellate Authority and have to be considered as
revisional powers rather than review powers.
16. In view of what is discussed above, we hold that Clause 9
empowers the Appellate Authority to call for the papers of any case
for review. Obviously, these powers would include the powers to
enhance the punishment in case it is found to be inadequate. We
may hasten to add that, for doing so, the Appellate Authority, as it is
expected, should give an opportunity to the delinquent for putting
forward his case on adequacy or inadequacy of punishment. The
powers can be exercised even in case where the delinquent is held to
be not guilty of and is discharged of the charges against him by the
competent authority."
25. As an upshot of foregoing discussion and for above mentioned
reasons and in light of the above mentioned decisions by Hon'ble
Division Bench, the award cannot be sustained on both counts i.e. (a)
the learned Tribunal interfered with penalty which is short of / other
than dismissal or discharge and that too even after holding that
inquiry is legal and fair and charge is proved; and (b) proceeding on
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the premise that review authority cannot enhance the penalty
determined by disciplinary authority / appellate authority and
deserves to be set aside and that, therefore, the award is, hereby,
set aside. The petition is allowed. Rule is made absolute to the
aforesaid extent."
9.2 In the case of Divisional Controller Vs. C.S.Parmar, 2016
LabIC 2900, this Court has held and observed in paragraphs
14,19,20 as under:
"14. Merely because any passenger and/or any witness to the
accident was not examined, it will not render the findings of the
Inquiry Officer perverse. Moreover, the learned Tribunal has
considered it appropriate to impose penalty (though reduced from
what departmental authority imposed).
19. The Hon'ble Division Bench of this Court has held in case of
Gujarat State Road Transport Corporation v. Prabhashanker K.
Acharya, reported in 1992 (2) G.L.H. 354 that in reference cases
where the departmental inquiry is conducted in legal and fair manner
and the charge of misconduct is proved, the learned Labour Court or
learned Tribunal does not have jurisdiction to interfere with the
quantum of penalty which is short of/less than penalty of dismissal or
discharge.
20. In this view of the matter, order passed by the learned Tribunal is
passed by exercising jurisdiction conferred under Section 11(A) of
the Act in contrary manner and the impugned award suffers from
error of law and jurisdiction inasmuch as the learned Tribunal has
transgressed the jurisdiction and authority conferred on and
available to the Court under the Act"
9.3 In the case of Deputy Commissioner, Kendriya Vidyalaya
Sangthan and Others Vs. J. Hussain, 2013 (10) SCC 106, the
Hon'ble Supreme Court has held and observed in paragraphs 7
to 14 as under:
"7. When the charge proved, as happened in the instance case, it
is the disciplinary authority with whom lies the discretion to decide
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as to what kind of punishment is to be imposed. Of course, this
discretion has to be examined objectively keeping in mind the nature
and gravity of charge. The Disciplinary Authority is to decide a
particular penalty specified in the relevant Rules. Host of factors go
into the decision making while exercising such a discretion which
include, apart from the nature and gravity of misconduct, past
conduct, nature of duties assigned to the delinquent, responsibility of
duties assigned to the delinquent, previous penalty, if any, and the
discipline required to be maintained in department or establishment
where he works, as well as extenuating circumstances, if any exist.
8. The order of the Appellate Authority while having a re-look of
the case would, obviously, examine as to whether the punishment
imposed by the Disciplinary Authority is reasonable or not. If the
Appellate Authority is of the opinion that the case warrants lesser
penalty, it can reduce the penalty so imposed by the Disciplinary
Authority. Such a power which vests with the Appellate Authority
departmentally is ordinarily not available to the Court or a Tribunal.
The Court while undertaking judicial review of the matter is not
supposed to substitute its own opinion on reappraisal of facts.(See:
Union Territory of Dadra & Nagar Haveli V/s. Gulabhia M.Lad (2010) 5
SCC 775) In exercise of power of judicial review, however, the Court
can interfere with the punishment imposed when it is found to be
totally irrational or is outrageous in defiance of logic. This limited
scope of judicial review is permissible and interference is available
only when punishment is shockingly disproportionate, suggesting
lack of good faith. Otherwise, merely - because in the opinion of the
Court lesser punishment would have been more appropriate, cannot
be a ground to interfere with the discretion of the departmental
authorities.
9. When the punishment is found to be outrageously
disproportionate to the nature of charge, principle of proportionality
comes into play. It is, however, to be borne in mind that this principle
would be attracted, which is in tune with doctrine of Wednesbury
Rule of reasonableness, only when in the facts and circumstances of
the case, penalty imposed is so disproportionate to the nature of
charge that it shocks the conscience of the Court and the Court is
forced to believe that it is totally unreasonable and arbitrary. This
principle of proportionality was propounded by Lord Diplock in
Council of Civil Service Unions V/s. Minister for Civil Service in the
following words:
"Judicial review has I think developed to a stage today when, without
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reiterating any analysis of the steps by which the development has
come about, one can conveniently classify under three heads of the
grounds on which administrative action is subject to control by
judicial review. The first ground I would call "illegality", the second
"irrationality" and the third "procedural impropriety". This is not to
say that further development on a case by case basis may not in
course of time add further grounds. I have in mind particularly the
possible adoption in the future of the principle of proportionality."
10. Imprimatur to the aforesaid principle was accorded by this
Court as well, in Ranjit Thakur V/s. Union of India (1987) 4 SCC 611.
Speaking for the Court, Justice Venkatachaliah (as he then was)
emphasizing that "all powers have legal limits" invokes the aforesaid
doctrine in the following words:
"The question of the choice and quantum of punishment is within the
jurisdiction and discretion of the court-martial. But the sentence has
to suit the offence and the offender. It should not be vindictive or
unduly harsh. It should not be so disproportionate to the offence as
to shock the conscience and amount in itself to conclusive evidence
of bias. The doctrine of proportionality as part of the concept of
judicial review, would ensure that even on an aspect which is,
otherwise within the exclusive province of the court-martial, if the
decision of the court even as to sentence is an outrageous defiance
of logic, then the sentence would not be immune from correction.
Irrationality and perversity are recognized grounds of judicial
review."
11. To be fair to the High Court, we may mention that it was
conscious of the narrowed scope of the doctrine of proportionality as
a tool of judicial review and has stated so while giving lucid
description of this principle in the impugned judgment. However, we
are of the view that it is the application of this principle on the facts
of this case where the High Court has committed an error while
holding that the punishment was shocking and arbitrary. Moreover,
while interfering therewith, the High Court has itself prescribed the
punishment which, according to it, "would meet the ends of justice",
little realizing that the Court cannot act a disciplinary authority and
impose a particular penalty. Even in those cases where it is found
that the punishment is disproportionate to the nature of charge, the
Court can only refer the matter back to the Disciplinary Authority to
take appropriate view by imposing lesser punishment, rather than
directing itself the exact nature of penalty in a given case.
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12. Here in the given case, we find that the High Court has totally
downplayed the seriousness of misconduct. It was a case where the
respondent employee had gone to the place of work in a fully
drunken state. Going to the place of work under the influence of
alcohol during working hours (it was 11.30 a.m.) would itself be a
serious act of misconduct. What compounds the gravity of
delinquency is that the place of work is not any commercial
establishment but a school i.e. temple of learning. The High Court
has glossed over and trivialized the aforesaid aspect by simply
stating that the respondent was not a "habitual drunkard" and it is
not the case of the management that he used to come to the school
in a drunken state "regularly or quite often". Even a singular act of
this nature would have serious implications.
13. There is another pertinent aspect also which cannot be lost
sight of. The respondent had barged into the office of the Principal.
As per the respondent's explanation, he had gone to the market and
his friends offered him drinks which he consumed. It was a new
experience for him. Therefore, he felt drowsiness immediately after
consumption of alcohol and while returning home, he remembered
that he had left some articles in the school premises and therefore
he had gone to school premises to pick up those left out articles
belonging to him. If the respondent was feeling drowsiness as
claimed by him where was the occasion for him to go to the school in
that condition- Moreover, if he had left some articles in the school
premises and had visited the school only to pick up those articles,
what prompted him to enter the office of the Principal- There is no
explanation of this behavior on the part of the respondent in his
reply. It would, obviously, be a case of forcible entry as it is no where
pleaded that the Principal asked him to come to his room or he had
gone to the room of the Principal with his permission or for any
specific purpose.
14. Thus, in our view entering the school premises in working
hours i.e. 11.30 a.m. in an inebriated condition and thereafter
forcibly entering into the Principal's room would constitute a serious
misconduct. Penalty of removal for such a misconduct cannot be
treated as disproportionate. It does not seem to be unreasonable and
does not shock the conscience of the Court. Though it does not
appear to be excessive either, but even if it were to be so, merely
because the Court feels that penalty should have been lighter than
the one imposed, by itself is not a ground to interfere with the
discretion of the disciplinary authorities. The penalty should not only
be excessive but disproportionate as well, that too the extent that it
shocks the conscience of the Court and the Court is forced to find it
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as totally unreasonable and arbitrary thereby offending the provision
of Article 14 of the Constitution. It is stated at the cost of the
repetition that discretion lies with the disciplinary/appellate authority
to impose a particular penalty keeping in view the nature and gravity
of charge. Once, it is found that the penalty is not shockingly
disproportionate, merely because in the opinion of the Court lesser
punishment could have been more justified, cannot be a reason to
interfere with the said penalty."
10. In view of the aforesaid facts and in view of the aforesaid
decisions of the Hon'ble Supreme Court and this Court, the
petition requires to be dismissed. Hence, the petition is
dismissed. Notice is discharged. There shall be no order as to
costs.
(HEMANT M. PRACHCHHAK,J)
ANUSRI
