Gujarat State Road Transport Corporation vs Harjibhai Dhanjibhai Gameti

H.K. Rathod, J.—Heard learned advocate Mr.A.M.Dagli for the petitioner.

In the present petition, the petitioner has challenged the award passed by the Labour Court, Himmatnagar in Reference No. 1 of 2001 dated

19.3.2004 whereby the Labour Court has set aside the order of dismissal dated 18.12.1997 and granted the reinstatement with continuity of

service and consequential benefits but, without back wages of interim period.

Learned advocate Mr.Dagli submitted that the respondent was working as Conductor at Talod Depot in Himmatnagar Division, committed

misconduct on 12.8.1995 when he was on route from Bhiloda to Una, vaya Gondal. That his bus was checked by checking staff, at that occasion,

because of the doubt checking staff checked tray bag of conductor and it was found that one empty way bill bearing No. 457938 as well as old

way bills were found from the possession of the conductor. The charge sheet was served and after completion of departmental inquiry, the

competent authority has imposed the punishment of stoppage of 4 increments with cumulative effect by order dated 31.7.1996. Thereafter, case of

respondent was reviewed by the reviewing authority on 15.10.1996 and punishment was reviewed from stoppage of 4 increments with cumulative

effect to dismissal by order dated 18.12.1997. The conductor has not replied to the charge sheet and also not replied to show cause notice but, he

personally remained present during the hearing of show cause notice. He also submitted that the Labour Court has committed gross error in

granting the reinstatement to the respondent workman. He further submitted that reviewing authority has power to enhance the punishment and

accordingly, the reviewing authority has enhanced the punishment. He submitted that the Labour Court has committed gross error in coming to

conclusion that reviewing authority has no power to enhance the punishment. Therefore, the award passed by the Labour Court is required

interference by this Court.

I have considered the submissions made by learned advocate Mr.Dagli and have also perused the award passed by the Labour Court,

Himmatnagar. Before the Labour Court, statement of claim was filed by the workman and written statement was also filed by the petitioner

Corporation. Thereafter, the documents were produced by both the parties and workman has not challenged the legality and validity of the

departmental inquiry but, has challenged the finding given by the competent authority. The workman was examined vide Exh.27 and no witness

was examined by the petitioner. Thereafter, the Labour Court has heard both the learned advocates and considered the merits of the matter. The

Labour Court has considered that allegations which have been made against the conductor that old way bills as well as empty way bill were found

and on 12.8.1995 as per arrangement made on the basis of duty list, 2.15 Bornala to Chhatidara night, was mentioned. Accordingly, workman

was prepared to report at schedule but another conductor was not available, he was sent on route from Bhiloda - Una Express Bus. Therefore, he

was not sent on regular route but, as the conductor of Bhiloda - Una was not available, he was sent on that route. Therefore, the workman was not

aware that his duty was in crew change and he was first time going to Bhiloda - Una route. Therefore, he was not able to take up double way bill

and no information was given to the workman and way bill was prepared upto Bhiloa - Gondal by the conductor and at Gondal when crew change

conductor was demanding way bill from the workman, meanwhile he was filling up the way bill by noting down numbers of the tickets which have

been issued, one checking inspector having doubt, therefore, report was made against the conductor. Ultimately, the statement which was made by

workman in departmental inquiry was not disputed or challenged by reporter. However, the competent authority has not believed the statement of

the workman and come to different conclusion to the effect that workman has misappropriated Rs. 88/-. The reporter was an important witness to

prove the charge against the conductor, was not examined by the competent authority. Therefore, the Labour Court has relied upon the decision of

the Allhabad High Court reported in 1991 FLR 268. The Labour Court has also considered that in absence of examination of the reporter, charge

levelled against the workman cannot be found to be proved. However, the competent authority has imposed the punishment by order dated

31.7.1996, four years increments with cumulative effect. Against which departmental appeal was filed by the respondent workman. During that

pendency of appeal, the decision of review was taken by the reviewing authority issuing review show cause notice which was replied by the

workman on 20.10.1997 and pointed out that all the defences were taken before the competent authority. However, that part has been ignored

and he was dismissed from service on 18.12.1997. The Labour Court has also considered that reviewing authority has not given any reason while

deferring with the finding in respect to the punishment imposed by competent authority. The Labour Court has also considered that during the

pendency of appeal, decision of review is also contrary to the Rules and principles of natural justice. The reviewing authority is also not justified in

reviewing the punishment of dismissal and also considered the additional evidence which was not considered by the competent authority. The past

record was not produced before the competent authority but, it was relied upon by the reviewing authority. Therefore, the reviewing authority has

committed gross error in imposing the punishment of dismissal and has set aside the dismissal order. The Labour Court has denied the back wages

of interim period considering the evidence of the workman. The gainful employment was not proved by the petitioner before the Labour Court.

4.1 The respondent workman raised various contentions against the review proceedings including there is no power to enhance the punishment.

The question of enhancement of punishment is decided by the Division Bench of this Court in Reference No. 1 of 2007. Therefore, rest of the

contentions of the respondent raised before the Court / Tribunal is examined by this Court as matter is old and to avoid the decision on technical

ground. There are basic error in review proceedings which is considered by this Court.

Hearing of review was taken on 20.10.1997 where explanation was given by conductor with all the details in departmental inquiry which may be

taken into account. On the date of incident, his duty was on route from Bhiloda - Una but, conductor of the said route was not available and

therefore, the he was all of sudden asked to change the duty and to send at the route from Bhiloa - Una. For that, he was not aware to obtain way

bill and therefore, he went on duty while obtaining one way bill in normal course and there was no bad intention on his part. After personal hearing

of the workman, no further finding is given and straightway, dismissal order was passed by the reviewing authority on 18.12.1997. Therefore, the

Labour Court has considered the matter on merits and set aside the punishment of dismissal on the ground that reviewing authority has no power to

enhance the punishment. The Labour Court has examined the merits and ultimately, come to the conclusion that punishment of dismissal is harsh

and unjustified and finding given by the competent authority in absence of examination of the reporter is baseless and perverse. Therefore, the

contention raised by learned advocate Mr.Dagli cannot be accepted and same are rejected.

The law on the subject has been examined in identical situation where the inquiry officer exonerated the delinquent and disciplinary authority is

not agree with such finding then, finding of disagreement must have to be communicated to the concerned delinquent. The reasons for disagreement

provided for the first time with the order of punishment which has been held to be violative of principles of natural justice and settled canons of law.

In this case also, the punishment imposed by competent authority for which reviewing authority is not agree and the reviewing authority wanted

to enhance the punishment during the pendency of appeal filed by workman. The decision of review cannot be taken during the pendency of

appeal. When the reviewing authority is not agree with punishment imposed by the competent authority and the reviewing authority is deferring with

the decision of competent authority then the reviewing authority should have to give reasons that how the competent authority is wrong in imposing

the punishment to the workman. No such reasons are given by reviewing authority. Along with the review show cause notice, no finding is given by

reviewing authority to the workman. The punishment imposed by the competent authority is found inadequate but on what basis and without

disclosing the reason, explanation was called for from the workman. After reply of the review show cause notice and personal hearing of the

workman, no further finding was given and straightway, punishment was enhanced by the reviewing authority. Even the reviewing authority has not

given reason along with the punishment order. Therefore, the order passed by reviewing authority is basically contrary to the principles of natural

justice and also settled law laid down by the Apex Court. The view taken by the Division Bench of the Bombay High Court in case of Food

Corporation of India Employees Association, West Zone and Anr. v. Food Corporation of India and Ors. reported in 2007 III LLJ 385. Relevant

observations made in Para.9 which are quoted as under:

The learned Counsel appearing for the petitioners has relied upon the judgments of the Supreme Court in the cases (i) Punjab National Bank

and Others Vs. Sh. Kunj Behari Misra, and (ii) Yoginath D. Bagde Vs. State of Maharashtra and Another, in support of his contention that the

entire departmental proceedings would stand vitiated on this ground. In the case of Punjab National Bank and Ors. v. Kunj Behari Mishra (supra),

the Court held as under 1998 II LLJ 809 :

In Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., the question arose whether after the 42nd Amendment of the Constitution,

when the enquiry officer was other than a disciplinary authority, was the delinquent employee entitled to a copy of the enquiry report of the enquiry

officer before the disciplinary authority takes decision on the question of guilt of the delinquent. It was sought to be contended that in that case that

as the right to show cause against the penalty proposed to be levied had been taken away by the 42nd Amendment, therefore, there was no

necessity to give to the delinquent a copy of the enquiry report before the disciplinary authority took the final decision as to whether to impose a

penalty or not. Explaining the effect of the 42nd Amendment the Constitution Bench observed that:

All that has happened after the Fortysecond Amendment of the Constitution is to advance the point of time at which the representation of the

employee against the enquiry officer''s report would be considered. Now, the disciplinary authority has to consider the representation of the

employee against the report before it arrives as its conclusion with regard to his guilt or innocence of the charges.

The Court explained that the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its

conclusion on the basis of the evidence, the enquiry officer''s report and the delinquent employee''s reply to it. The second stage begins when the

disciplinary authority decides to impose penalty on the basis of its conclusions. It is the second right which was taken away by the 42nd

Amendment but the right of the charged officer to receive the report of the enquiry officer was an essential part of the first stage itself. This was

expressed by the Court in the following words:

The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage

and also a principle of natural justice is that the findings recorded by the enquiry officer from an important material before the disciplinary authority

which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance to what extent the said

findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The

findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by its. If such

a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee

should have fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair

opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to

reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the

inquiry. It is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the

evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority

which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority,

that would not constitute an additional material before disciplinary authority of which the delinquent employee has no knowledge. However, when

the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are

contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the

disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice,

therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply

to the inquiry officer''s findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the

representation of the employee against it.

These observations are clearly in tune with the observations in State of Assam and Another Vs. Bimal Kumar Pandit, quoted earlier and would

be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse

finding to give a hearing to the delinquent officer. It if enquiry officer had given an adverse finding, as per Karunakar (supra) case, the first stage

require an opportunity to be given to an employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to

them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be over turned by the

disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has

recorded its finding. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must

give him a hearing. When the enquiry officer holds the charges to be proved, then that report has to be given to the delinquent officer, who can

make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the

present case, the enquiry report is in favour of the delinquent officer but if the disciplinary authority proposes to defer with such conclusions, then

that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned

unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.

Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the

inquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The

disciplinary proceedings stands concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose penalty

and not the enquiry officer. Where the disciplinary authority itself holds an inquiry, an opportunity of hearing has to be granted by him. When the

disciplinary authority defers from the view of the enquiry officer and proposed to come to a different conclusion, there is no reason as to why an

opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charge officer succeed before the enquiry officer,

they are deprived of representing to the disciplinary authority before that authority defers with the enquiry officer''s report and, while recording a

finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent

before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of

the first stage of inquiry as explained in Karunakar (supra).

The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof,

whenever the disciplinary authority disagrees with the enquiry authority or any article of charge, then before it records its own findings on such

charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its

findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to

persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already

observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of

misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.

The aforesaid conclusion which we have arrived at is also in consonance with the underlying principle enunciated by this Court in the case of

Institute of Chartered Accountants of India Vs. L.K. Ratna and Others, . While agreeing with the decision in Ram Kishan Vs. Union of India and

others, we are of the opinion that the contrary view expressed in State Bank of India v. S. S. Koshal and M.C. Saxena ( State of Rajasthan Vs.

M.C. Saxena, cases do not lay down the correct law.

The effect of non-application of mind and non-reasoned order passed by the administrative authority which has been discussed by the Apex

Court in case of Cyril Lasrado (dead) by Lrs. and Others Vs. Juliana Maria Lasrado and Another, . Relevant Para.11 and 12 are quoted as under:

Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief,

in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons

has rendered the High Court''s judgment not sustainable.

Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union observed : (All ER 1154) ""The giving of

reasons is one of the fundamentals of good administration."" In Alexander Machinery (Dudley) Ltd. v. Cabtree it was observed : ""Failure to give

seasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker tot he controversy in question and the decision

or conclusion arrived at."" Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the

inscrutable face of the sphinx"", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the

power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least

sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has

gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The

inscrutable face of the sphinx"" is ordinarily incongruous with a judicial or quasi-judicial performance.

In view of the law as discussed above, the Labour Court has rightly examined the matter on merits and is perfectly justified while exercising the

power u/s 11A of the I.D.Act,1947 to set aside the dismissal order. The Labour Court has rightly not granted the back wages of interim period.

Therefore, the Labour Court has not committed any error while granting the relief in favour of respondent workman. Learned advocate Mr.Dagli is

not able to point out any infirmity in the award. This Court is having very limited jurisdiction to interfere with award while exercising the power

under Article 227 of the Constitution of India. The view taken by the Delhi High Court in case of Sushila Sharma v. Pawan Sharma reported in

2007 II LLJ 865. Relevant observations are made in Para.11 and 12 which are quoted as under:

The settled position of law in respect of interference by the writ courts under Article 226 of the Constitution of India in matters of this nature is

that a writ court exercises its powers of judicial review well within certain parameters. A series of judgments have been rendered by the Supreme

Court in this context, as mentioned below:

(i) Sadhu Ram v. Delhi Transport Corporation Learned AGP Mrs.Pathak requests for some time. Therefore, matter is adjourned to 3.12.2007.

Ad-interim relief granted earlier to continue till then. 1984 Learned advocate Mr...has filed leave note / sick note. Therefore, matter is adjourned to

24.7.2007. 1967.

(ii) Harbans Lal Vs. Jagmohan Saran,

(iii) Calcutta Port Shramik Union Vs. Calcutta River Transport Association and Others,

(iv) Ramniklal N. Bhutta and another Vs. State of Maharashtra and others, .

(v) Indian Overseas Bank v. I.O.B.Staff Canteen Workers Union and Anr.

(vi) Master Marine Services Pvt. Ltd. Vs. Metcalfe and Hodgkinson Pvt. Ltd. and Another,

All the above judgments, if read collectively, clearly indicate that the High Courts should not interfere with the awards of the Industrial Tribunal

or the Labour Court on mere technicalities. Interference is permissible only if the order of the Subordinate Court suffers from an error of

jurisdiction, breach of principles of natural justice or is vitiated by a manifest or apparent error of law. Reappraisal of evidence without sufficient

reason in law to arrive at a finding of fact contrary to those arrived at by the Subordinate Court is not the intent of exercising judicial review. It is

only in cases where overwhelming public interest requires interference and cases of the nature where there is an error of jurisdiction or law as

referred to hereinabove, should the court interfere, particularly in view of the fact that the object of enacting Industrial Disputes Act and of making

a provision therein to refer disputes to tribunals for settlement, is to bring about industrial peace and in all such cases, an attempt should be made

by the courts in exercise of their powers of judicial review, to sustain as far as possible, the awards made by the Industrial Tribunals and Labour

Courts, instead of picking holes in the awards on rival points and frustrating the entire adjudication process.

Recently, in Special Civil Application No. 888 of 2004 filed by GSRTC v. Maganbhai L. Makwana, decided by this Court on 14.12.2007

and in Special Civil Application No. 1648 of 2004 decided on 24.12.2007, similar question was examined by this Court after considering the

following decisions and after considering the decisions, said petition was dismissed by this Court. 2005 II CLR 449 Cal in case of Babban Ram v.

UCO Bank and Ors.2006 AIR SCW 2177 S. Goparam Vs. The Inspector General, Central Industrial Security Force, The Deputy Inspector

General, Central Industrial Security Force and The Commandant, CISF Unit, NLC, in case of S. Goparam v. Inspector General Central Industrial

Security Force, South West Sector Mumbai and Ors. 2006 SCC LS 1835, in case of Lav Nigam v. Chairman & MD ITI Ltd. and Anr. 2006

AIR SCW 6277 in case of Mathura Prasad v. Union of India and Ors. 2007 I CLR 880 in case of Suresh C. Shah v. Food Corporation of India

2005 (9) GHJ 659 in case of Canara Bank and Others Vs. Swapan Kumar Pani and Another, in case of State Bank of India and Others Vs. K.P.

Narayanan Kutty, in case of State Bank of India and Ors. v. K.P. Narayanan Kutty.

Therefore, considering the law as discussed by this Court in the aforesaid petition and also in view of the facts of the present case, there is no

substance in this petition and same is required to be dismissed. Accordingly, present petition is dismissed.