Divisional Controller vs Dilavarsinh R Zala

S.R. Brahmbhatt, J.—Rule. Mr. Priyank P. Jhaveri wavies service of Rule on behalf of respondent.

Heard learned advocates for the parties. Rule is fixed forthwith with the consent of both the counsel as the matter is taken up for final disposal.

The petitioner, G.S.R.T.C, has approached this Court under Article 227 of the Constitution of India challenging the award and order passed by the Presiding Officer, Labour Court, Rajkot dated 4.6.2008 in Reference(LCR) No. 54 of 2004 whereunder the Court has awarded continuity of service, retiral benefits and Rs. 100,000/- in lieu of backwages to the respondent-workman quashing and setting aside the original order of dismissal.

The facts in short, deserve to be set out as under:

4.1 The respondent-workman was serving as driver in the petitioner-Corporation on 24th May, 2000. He was on duty in the bus coming en route from Porbandar to Rajkot. At about 14:15 hrs. when the bus was going from Jetput to Virpur, near the bus-stop of Virpur, the bus collided with one Maruti car which resulted into death of three passengers in the Maruti Car. The chargesheet was issued on 4th August, 2000 imputing the cause of accident upon the driver of the bus, which resulted death of passengers and in the Maruti car and damage to the bus. The respondent-driver was booked in criminal offence, which came to be registered as CR. No. I- No. 83 of 2000 for offences punishable under Sections 270, 337, 338, 304A of the Indian Penal Code and Sections 177 and 184 of the M.V. Act. The workman was acquitted of all the charges. The inquiry culminated into the order of punishment after recording of guilt on the part of the workman. The punishment was that of reduction to original scale which came to be enhanced during appeal issuing notice to the workman concerned and taking his statement thereon. The final penalty that of dismissal came to be imposed which was disputed by the workman and, hence, dispute was referred to the competent Court, wherein it was marked as Reference (LCR)No.54 of 2004. The Court recorded the fact that validity and/or propriety of the inquiry had not been challenged as the workman passed on purshis that he did not challenge the validity and propriety of the inquiry, keeping the challenge to the findings open. The Labour Court set aside the order of dismissal and awarded continuity of service with retiral dues and Rs. 100,000/- towards compensation in lieu of backwages vide its order dated 4.6.2008, which is impugned in the present petition.

Ms. Kiran D. Pandey, learned advocate appearing for the Corporation contended that even on a cursory glance at the chargesheet and his past conduct clearly reveal that there was negligence on the part of the workman on the day of the accident and in the past also he had remained negligent and, therefore, few accidents have been recorded. The Labour Court after recording findings that the inquiry was just and proper,ought not to have exercised its discretion u/s 11A of the Industrial Disputes Act,1947 for substituting the penalty.

Shri Priyank Zavari, learned advocate appearing for the workman contended that the chargesheet was that for accident and negligent driving. The criminal offence registered against the workman was pertaining to the offence punishable for rash and negligent driving causing death, wherein he was acquitted by the competent Court of the State. Therefore, in this backdrop, the discretion exercised by the Court in quashing and setting aside the order of dismissal needs no interference under Article 227 of the Constitution of India. Shri Zaveri under the instructions of his client submitted that the Court may modify the order as he is ready and willing to accept the retiral dues without any backwages as previously the Labour Court had ordered Rs. 100,000/- in lieu of backwages. Shri Jhaveri has submitted that the order may suitably be modified as the respondent is prepared to accept modification of award by deducting the amount of Rs. 100,000/- ordered in lieu of backwages but may not dispute the award so far as continuity of service with all retirement and terminal benefits are concerned.

Ms. Pandey, at this stage, submitted that as per the prevalent rules the workman is, otherwise also, in such a case, even on dismissal,entitled to receive terminal dues.

Be that as it may, this Court is of the view that the award needs modification for the following reasons:

(1) The Labour Court, while accepting the fact that the accident has occurred and the inquiry proceedings have not been challenged, recorded that the appellate authority has not given any justifiable reasons for altering the punishment into that of dismissal. However, the Labour Court has exercised its discretion u/s 11A of the Industrial Disputes Act, 1947 and held that punishment is absolutely disproportionate. The order of the Labour Court is required to be interfered only qua the aspect of award of Rs. 100,000/- in lieu of backwages. The justification for awarding Rs. 100,000/- in lieu of backwages should have been based upon the appropriate findings that whether the workman was gainfully employed or not in the interregnum period. The award is conspicuously silent on this aspect and, therefore, according to this Court the award of Rs. 100,000/- which is ordered to be paid by way of lumpsum in lieu of backwages needs to be modified in view of the concession recorded of Shri Zaveri, appearing on behalf of the respondent. He is ready and willing to have the award modified accordingly. So far as the rest of the award is concerned, this Court is of the view that the same need not be modified as the findings are otherwise in accordance with law. It is required to be noted that the Court has not accepted the findings of guilt on the part of the workman concerned and, therefore, the Court has awarded continuity of service and as the workman had attained the age of 57 years in the interregnum period and ordered payment of retiral dues with continuity of service which, in my view, needs no interference as the chargesheet is conspicuously silent with regard to the past conduct of such nature and the chargesheet pertains to the damage sustained by S.T. Corporation which is quantified at Rs. 500/- only. Though fact could not be lost sight of that three human lives have been lost but, at the same time, the competent Court of the State has acquitted the workman of the charge of negligence and rash driving which resulted into the death of human beings.

In view of this, in the interest of justice, this Court is of the view that the award needs to be modified and the workman shall not be entitled to any backwages but he will be entitled to receive all his retiral dues till the date of the award and accordingly the award dated 4.6.2008 passed in Reference(LCR) No. 54 of 2004 stands modified. The petition, therefore is partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.