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1986 Supreme(Bom) 175
IN THE HIGH COURT OF BOMBAY
[NAGPUR BENCH]
H.W. Dhabe, J.
Maharashtra State Road Transport Corporation.... Petitioner.
Versus
R.D. Toplewar, Ex-Conductor another.... Respondents.
Writ Petition No. 572 of 1982, decided on 26-6-1986.
Advocates appeared :
S.C. Mehadia, for petitioner.
B.M. Khan, for respondent No. 1.
Headnote:BOMBAY STATE TRANSPORT EMPLOYEES SERVICE REGULATIONS
Regulation 80 and Discipline and Appeal Procedure for the Maharashtra State Road Transport Corporation Employees Rules Clause 9 - Power to review -Reviewing Authority should have acted only on the basis of material on record.
Since no appeal is provided to the department, a power of review to the appellate authority is provided under Clause 9. But it would not follow from the same that the power of review can be equated to the power of appeal. A proper reading of Clause 9 would show that although the word review is used, In fact, it is the power to the nature of a revision as normally understand in law which has a different scope from the appellate power.
The power conferred under Clause 9 of the Discipline and Appeal Procedure cannot be equated with the power in appeal under the said Discipline and Appeal Procedure. The jurisdiction of the reviewing authority under Clause 9 of the Discipline and Appeal procedure is limited and cannot be equated with the appellate jurisdiction.
The reviewing authority should have acted only on the basis of the material on record which the available in the instant case. The very language of clause 9 shows that appellate authority can call for the enquiry papers and review the decision as it may deem fit. It was not, therefore, open to the reviewing authority to record the statement of the respondent-conductor, which would show that it was done only to get some admission from him although he had said that he had nothing else to say except what he had already stated. No case for reopening the enquiry was made out by the reviewing authority because even assuming that it is open for the reviewing authority to reopen the case, it can be done only in exceptional circumstances upon certain substantial considerations. Further, if the case were to be reopend, it would be necessary to afford due opportunity to cross-examine the departmental witnesses and to lead additional evidence to establish his innocence. The procedure followed by the reviewing authority was, therefore, contrary to the principles of natural justice and on this ground also the order passed by the reviewing authority is illegal and is liable to be set aside.
Maharashtra State Road Transport Corporation v. R. D. Toplewar, ExConductor, Pusad, 1987 Mah LJ 85 (90,91,93).
Section 44 and Constitution of India Article 14-Power of Superintendence -Exercise of is discretionary-Absence of any limitation for exercise of jurisdiction-Neither arbitrary nor violative of Article 14.
Section 44 does not in terms provide for a remedy of revision against the Order passed by the Labour Court, as the expression revision is known and understood in law. Although the proceedings under Section 44 of the Act are described as revisional proceedings, a perusal of Section 44 would show that a power of Superintendence is conferred upon the Industrial Court over all the Labour Courts, The exercise of power of superintendence is always discretionary and since it is an equitable power conferred upon the Court, it has to be exercised upon equitable considerations. It is, therefore, necessary that when a power of superintendence of the Industrial Court is invoked, the party invoking such a power must act diligently and expeditiously, and it would be open to the Industrial Court to dismiss the applications filed under Section 44 of the Act in its discretionary jurisdiction if it finds that there is an inordinate delay in filing the said applications. Even after entertaining the said application under Section 44 of the Act, it is open to the Industrial Court to modulate the relief in such a manner so as to avoid any hardship or injustice being caused to the opposite party by reason of the delay in invoking its jurisdiction. The nature of the proceedings under Section 44 of the Act, it can be seen that the very apprehension entertained by the petitioner that hardship and injustice would be caused because of the inordinate delay, would lose its basis, because although there may not be a period of limitation prescribed for entertaining the proceedings under Section 44 of the Act, it is open to the Industrial Court not to entertain a proceeding thereunder on the ground of inordinate delay. The counsel for the petitioner. Corporation has also not been able to show to me that prescribing a period of limitation is obligatory upon the statute-making authority when a remedy is provided under a Statute. The above contention on behalf of the petitioner that the provisions of Section 44 of the Act should be struck down because they are arbitrary and unjust and, are, therefore, violative of Article 14 of the Constitution of India, is rejected.
2. At the spot, the checking party recorded the statement of the conductor and the two passengers who were travelling without tickets in the bus. A charge sheet was thereafter issued to the respondent-conductor and a domestic enquiry was held against him by the Depot Manager initially and after his transfer by the Divisional Traffic Superintendent (for short 'the D.T.S.'). The D.T.S. who is the competent authority to impose punishment upon the conductor, came to the conclusion that the petitioner-corporation in the departmental enquiry did not clarify the lacuna that according to the conductor 30 tickets were issued to the passengers during the trip in question before it was checked, whereas the case of the Department was that at the time the bus was checked there were 27 passengers with tickets and three without tickets. However, inspite of this lacuna, the D.T.S. held that there were three passengers, without tickets in the bus. He, therefore, held that no serious action can be taken against the conductor by way of his dismissal in view of the lacuna in the evidence produced by the Department. Accordingly, he imposed the punishment of stoppage of increment for six months for the irregularity in overwriting the personal amount in the way bill, without cumulative effect.
3. It may be seen that as per Schedule 'C' to the Discipline and Appeal Procedure applicable to the Maharashtra State Road Transport Corporation Employees and which governs the departmental action to be taken against the conductor-respondent No. 1 in the instant case, the Divisional Controller is the appellate authority against the order passed by the D.T.S. It may also be seen that the Divisional Controller is also the appointing authority in so far as the post of conductor is concerned. The Divisional Controller, after recording the reasons, issued a show cause notice to the respondent-conductor intimidating him that the punishment of stoppage of increment was inadequate in the facts and circumstances of his case and that the only punishment which could be imposed upon him was the punishment of dismissal from service. For the reasons recorded by him, he took up the matter in review, which is a power conferred upon the appellate authority under Clause 9 of the Discipline and Appeal Procedure. In the said review proceedings, apart from giving show cause notice, the Divisional Controller examined the conductor again and thereafter, by his order dated 10-11-1975 held that the mis-conduct for which the respondent-conductor was charge -sheeted was proved and that he was liable to be dismissed from service for the said mis-conduct. Accordingly the respondent-conductor was dismissed from service with effect from 11-11-1975.
4. Being aggrieved the respondent-conductor challenged the order of his dismissal from
