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1995 Supreme(Guj) 83
Gujarat High Court
Judgename :R.BALIA
CHANDUJI SENDHAJI KHANT - Appellant
Versus
GUJARAT STATE ROAD TRANSPORT CORPORATION - Respondent
C.A. 270 of 1994
Decided On : 02/06/1995
Headnote:Industrial Disputes Act, 1947 - Sec. 11-A - Industrial Tribunal - Jurisdiction - Constitution of India, 1950 - Arts. 226 and 227 - Judicial review of discretionary power exercised by Tribunal under Sec. 11-A - Misconduct of respondent-workman proved - Earlier also found guilty of misconduct - Even though Tribunal substituted the punishment of dismissal with reinstatement - Held, exercise of power is perverse - Reinstatement quashed.
Under the facts and circumstances of the present case, exercise of discretion by the Tribunal cannot be sustained. It has nowhere recorded its satisfaction about the fact that punishment imposed upon the petitioner workman was disproportionate to the guilt proved which is condition precedent for exercising discretion under Sec. 11 A of the Act. In this case, the Tribunal has found inquiry to be fair and in accordance with law, and found misconduct proved which is of carrying passengers without tickets implying dishonest conduct on the part of the conductor to retain with him the amount collected by carrying passengers without tickets affecting revenue of a body of a public nature, which cannot be equated with pretty theft once committed in momentary weakness on account of socio-economic condition of the concerned workman, but is serious misconduct on account of nature of criminal breach of trust. It has also come on record that there is history of past 77 misconduct behind the workman. Therefore, the impugned order neither records satisfaction about the punishment being not justified being disproportionate to the misconduct proved nor does it give any relevant reasons for substituting lesser punishment. Exercise of discretion under the circumstances cannot be sustained even on limited scrutiny permissible under law and conclusion to that extent arrived at by the Tribunal must be held to be perverse.
[Para 9]
Service Law - Dismissal on the ground of proved misconduct - Reinstatement of Tribunal - Plea of Socio-economic conditions of delinquent workman - Held, to be dealt vis-a-vis the gravity of offence committed by workman.
The socio-economic condition which may weigh for imposing lesser penalty must necessarily have connection with socio-economic condition of delinquent who is to be dealt with under Sec.11 A of the Act vis-a-vis offence committed and its general fall out on public interest.
[Para 15]
( 1 ) CIVIL Application came up for orders for relief in terms of Sec. 17b of the Industrial Disputes Act. As the matter relates to reinstatement and payment of wages, main petition, i. e. , Spl. Civil Application No. 9739 of 1993 itself is heard on merits today.
( 2 ) THE short issue raised in this case is whether discretion exercised by the labour Court in substituting lesser penalty for dismissal imposed upon by the employer-petitioner can be sustained.
( 3 ) RESPONDENT workmen Chanduji Sendhaji Khant was dismissed from services on the charge that at the time of inspection, he was found to have carried passengers in the bus without issuing tickets. Punishment was imposed after holding inquiry into alleged misconduct. On the complaint having been lodged under Sec. 33a of the Industrial Disputes Act, 1947 on the ground that the order of punishment has been passed in violation of Sec. 33 of the Act, the matter was adjudicated as if industrial dispute has been referred to the Industrial Tribunal. The Tribunal finding that misconduct has been proved, it also found that as per material before the Tribunal about the conduct of employee, there are series of record of past conduct counted as many as 77. With this finding, the Tribunal ordered reinstatement of workman on the same post as Conductor on the minimum pay-scale. No back wages were awarded.
( 4 ) THE contention of the learned Counsel for the petitioner is that on the face of finding recorded by the Labour Court, substitution of punishment of dismissal with lesser punishment in the present case, the Labour Court had not exercised its discretionary powers under Sec. 11a of the Act with proper approach to the problem judiciously. Exercise of discretion in the facts and circumstances of the present case, amounts to perversity. He further contended that the Industrial Tribunal has not even satisfied itself which is pre-condition that the punishment awarded by management was not commensurating with the guilt of the workman.
( 5 ) THE learned Counsel for the respondent-workman urged that discretion vested in the Industrial Tribunal in respect of exercise of powers under Sec. 11a of the act, is of very wide amplitude and once the Industrial Tribunal is satisfied and has come to the conclusion that extreme penalty of dismissal was not justified in the present case, this Court under Arts. 226 and 227 of the Constitution of India cannot interfere in exercise of discretion. His contention was that socio-economic background of the delinquent in which misconduct has been conducted is the relevent factor while considering the question of punishment comensurating with the gravity of guilt and by taking socio-economic background of the workman, if Tribunal has ordered reinstatement with some other penalty by cancelling penalty of dismissal, no exception can be taken thereto. He relies on the Division Bench decisions of this Court in the case of Gujarat State Road Transport Corporation v. Danaji Sukhaji kodiyar, reported in 1993 (1) GCD 892 : [1994 (1) GLR 87], Gujarat State Road transport Corporation v. Jamnadas Becharbhai, reported in [1982 (2)] XXIII (2) glr 557 and judgment of this Court in the case of Gujarat State Road Transport corporation v. Babulal J. Kharva, rendered in Spl. Civil Application No. 5581 of 1993 delivered on 11-6-1993. The learned Counsel strenuously urged that at best matter may be remanded to the Industrial Tribunal for the purpose of reinstating the workman on a different post than the one on which he has been reinstated by the Industrial Tribunal in view of the decision in the case of Jamnadas Becharbhai (supra ).
( 6 ) I have carefully considered rival contentions raised before me and given thoughtful consideration to the facts recorded by the Tribunal which are not in dispute before me. It is no doubt true that jurisdiction under Sec. 11a of the Act conferred on the Tribunal is of wide amplitude and where Tribunal is satisfied that the punishment
