1.0 Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants hereinoriginal defendants to quash and set aside the impugned judgment and decree passed by the learned trial Court learned Joint Civil Judge, Godhra dated 5.12.1989 passed in Regular Civil Suit No.480 of 1986 as well as impugned judgment and order passed by the learned Appellate Court learned Joint District Judge, Godhra in Regular Civil Appeal No. 1 of 1990 dated 5.5.1990 by which the learned Appellate Court has partly allowed said appeal, however confirmed the judgment and decree passed by the learned trial Court quashing and setting aside the order passed by the reviewing authority dismissing the plaintiff from service and restoring the order passed by the disciplinary authority reverting the plaintiff to minimum pay scale.
2.0 That the respondent hereinoriginal plaintiff was serving as a Conductor. A departmental inquiry came to be initiated against him on the ground of misappropriation i.e. not issuing the tickets to the passengers though the fare was collected. That in the departmental inquiry the charge and misconduct i.e. not issuing the tickets though the fare was collected came to be proved. However, the disciplinary authority imposed the punishment of putting the plaintiff to minimum of the pay scale. That the order passed by the disciplinary authority was taken under the review by the reviewing authority and considering the seriousness of the misconduct / charge of misappropriation proved, the reviewing authority reviewed the order of punishment imposed by the disciplinary authority and passed an order to remove / dismiss the plaintiff from service, after following due procedure as required. That being aggrieved and dissatisfied with the order passed by the reviewing authority, the respondent hereinoriginal plaintiff instituted Regular Civil Suit No. 480 of 1986 in the Court of learned Civil Judge (J.D.), Godhra on the ground that order passed by the reviewing authority was in breach of principles of natural justice. It was also contended on behalf of the plaintiff that order passed by the reviewing authority to remove / dismiss the plaintiff from service is too harsh and disproportionate to the misconduct. That the suit was resisted by the defendants by filing written statement submitting that reviewing authority has passed the order after following due procedure as required and even considering the gravity and seriousness of the misconduct committed by the plaintiff. That the learned trial Court framed the issues and considering the evidence on record by judgment and decree dated 5.12.1989 decreed the suit by observing that order passed by the reviewing authority is in breach of principles of natural justice as no adequate opportunity was given to the plaintiff and also on the ground that punishment imposed by the reviewing authority removing / dismissing the plaintiff from service is disproportionate to the misconduct committed by the plaintiff. Consequently the learned trial Court quashed and set aside the order passed by the reviewing authority dated 29.4.1986 removing/ dismissing the plaintiff from service and declared that the plaintiff is in continuous service from 29.4.1986 and entitled to all the consequential benefits available inclusive of backwages etc.
2.1. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Courtlearned Joint Civil Judge, Godhra dated 5.12.1989 passed in Regular Civil Suit No.480 of 1986, the appellants herein original defendants preferred Regular Civil Appeal No. 1 of 1990 before the learned Appellate Court and the learned Appellate Court learned Joint District Judge, Godhra by impugned judgment and order dated 5.5.1990 has partly allowed the said appeal by quashing and setting aside the judgment and decree passed by the learned trial Court to the extent of granting declaration that the plaintiff is entitled to full backwages and other benefits from the date of 29.4.1986 and the learned Appellate Court has modified the said judgment and decree by ordering that the plaintiff is entitled for the suspension allowance as if he was under suspension, admissible under the relevant rules for the period from 29.4.1986 till reinstatement. However, learned Appellate Court confirmed the judgment and decree passed by the learned trial Court declaring the order passed by the reviewing authority dated 29.4.1986 removing the plaintiff from service as illegal, unjust, oppressive and against the principles of natural justice and granting declaration that the plaintiff is continued in service since 1986.
2.2. Feeling aggrieved and dissatisfied by the impugned judgment and order passed by learned Appellate Court passed in Regular Civil Appeal No. 1 of 1990 dated 5.5.1990, appellants herein original defendants have preferred present Second Appeal under Section 100 of the Code of Civil Procedure.
3.0 Shri Pranav Desai, learned advocate for the appellants has vehemently submitted that both the Courts below have materially erred in quashing and setting aside the order passed by the reviewing authority. It is submitted that once the misconduct of misappropriation of amount came to be proved in the departmental inquiry and when thereafter having satisfied that the order passed by the disciplinary authority in putting the plaintiff to the minimum of the pay scale was not sufficient and / or adequate and therefore, when the reviewing authority passed an order to dismiss the plaintiff, the same was not required to be interfered with by the learned trial Court.
3.1. It is further submitted by Shri Desai, learned advocate for the appellants that both the Courts below have materially erred in holding that the departmental inquiry as well as order passed by the reviewing authority are in breach of principles of natural justice. It is submitted that even the original plaintiff did not challenge the finding given by the Inquiry Officer holding that the charge of misconduct against the plaintiff has been proved. It is submitted that in the reply to the notice against the proposed punishment and even before the First Appellate Authority the plaintiff specifically submitted that he is not challenging the finding given by the Inquiry Officer, however, he requested to consider imposition of punishment liberally. Therefore, it is submitted that both the Courts below have materially erred in holding that departmental inquiry and even the order passed by the reviewing authority is in breach of principles of natural justice. It is submitted that even otherwise adequate opportunity was given to the plaintiff during the departmental inquiry and even by the reviewing authority also.
3.2. It is further submitted by Shri Desai, learned advocate for the appellants that both the Courts below have materially erred in quashing and setting aside the order passed by the reviewing authority on the ground that no reasons have been assigned while imposing the order of dismissal. It is submitted that once it was found that the plaintiff has committed the misconduct of misappropriation of amount and when after giving an opportunity order of dismissal has been passed by the reviewing authority no further reasons were required to be assigned. It is submitted that as such it is for the disciplinary authority and / or reviewing authority to consider what punishment to be imposed. It is further submitted that both the Courts below have materially erred in holding that order of dismissal is too harsh and / or inadequate and thereby have materially erred in interfering with the order of punishment imposed by the disciplinary authority. It is submitted that as such Civil Court has no jurisdiction to interfere with the order of punishment imposed by the disciplinary authority and / or to consider the proportionality and inadequacy of the punishment imposed by the disciplinary authority and / or to consider the adequacy of the punishment imposed by the disciplinary authority. It is submitted that those powers are vested only with the Labour Court and / or Industrial Tribunal under Section 11 A of the Industrial Disputes Act and no such powers are vested with the Civil Court.
3.3. By making above submissions, it is requested to allow the present Second Appeal.
4.0 Shri Mukesh Rathod, learned advocate for the original plaintiff has tried to oppose the present Second Appeal by submitting that as such no illegality has been committed by the Courts below in quashing and setting aside the order of dismissal passed by the reviewing authority with a liberty in favour of the appellants to consider /impose any other punishment. By making above submissions, it is requested to dismiss the present Second Appeal. No other submissions have been made.
5.0 Heard the learned advocates for the respective parties at length and considered the impugned judgment and order passed by the Courts below as well as relevant evidence from the Record and Proceedings received from the learned trial Court/ learned Appellate Court.
6.0 At the outset, it is required to be noted that the original plaintiff was departmentally prosecuted for the misconduct of misappropriation of amount i.e. on the ground that though he collected the fare from the passengers but did not issue the tickets. In the departmental inquiry the charge and misconduct of misappropriation of the amount has been proved. Even the plaintiff has accepted the same. It is required to be noted at this stage that in reply to the show cause notice against the proposed punishment and even before the First Appellate Authority the plaintiff specifically admitted that he accepts the finding given by the Inquiry Officer, however requested to take liberal view while imposing the punishment. Under the circumstances, as such Courts below were not required to go into the legality and validity of the departmental inquiry and / or finding given by the Inquiry Officer holding the plaintiff guilty for the misconduct of misappropriation of the amount. It is to be noted that the disciplinary authority despite the fact that the charge and misconduct of misappropriation of amount by the plaintiff came to be proved, still the Disciplinary Authority imposed the punishment of putting him into the minimum of the pay scale. That the reviewing authority was of the opinion that in case of misappropriation of amount by the Conductor and looking to his earlier misconduct he cannot be continued in service and he ought to have been dismissed from the service, the reviewing authority after following due procedure as required and giving an opportunity to the plaintiff has passed an order dismissing the plaintiff from service. It appears that Courts below have interfered with the said order of punishment imposed by the reviewing authority on the ground that looking to the misconduct committed, the punishment of order of dismissal is too harsh and dis proportionality to the misconduct committed and the learned trial Court passed an order to set aside the order passed by reviewing authority dismissing the plaintiff from service and directed the appellants to reinstate him in service with full backwages which is modified by the learned Appellate Court to the extent of awarding full backwages for the interregnum period and treating him under suspension, however has confirmed the judgment and decree passed by the learned trial Court quashing and setting aside the order of dismissal. As such Civil Court has no jurisdiction to interfere with the order of punishment imposed by the disciplinary authority and / or to consider the proportionality of the punishment imposed by the disciplinary authority. The Civil Court has no such jurisdiction to consider the proportionality of the punishment, which powers vest with the Labour Court and / or Industrial Tribunal under Section 11 A of the Industrial Disputes Act. Unless and until, it is found that the order passed disciplinary authority is in breach of principles of natural justice and / or without jurisdiction the Civil Court can not interfere with the order passed by the disciplinary authority. Under the circumstances, the judgment and decree passed by the learned trial Court confirmed by the learned Appellate Court interfering with the order passed by the reviewing authority dismissing the plaintiff from service is absolutely illegal and without jurisdiction.
6.1. Even otherwise, on facts also both the Courts below have materially erred in interfering with the order of punishment imposed by the disciplinary authority/ reviewing authority. It is not in dispute that charge and misconduct of misappropriation of amount by the plaintiff who was the Conductor has been proved.
6.2. In the case of Uttar Pradesh State Road Transport Corporation vs. Nanhel Lal Kushwaha reported in (2009) 8 SCC 772 in the similar set of facts and circumstances of the case when charge against the Conductor for collecting fare and not issuing the tickets came to be proved in departmental inquiry and when the order of dismissal was passed and Labour Court in exercise of powers under Section 11 A of the Industrial Disputes Act interfered with the order of dismissal on the ground that it is disproportionate, the Hon'ble Supreme Court set aside the order passed by the Labour Court confirmed by the High Court and restored the order of punishment of order of dismissal imposed by the employer. It is to be noted that under Section 11 A of the Industrial Disputes Act, the Labour Court has jurisdiction to interfere with quantum of punishment awarded by the employer, still the Hon'ble Supreme Court has held that ordinarily, discretion exercised by employer should not be interfered with. It is to be noted that in the present case as stated above as such Civil Court is not vested with such a jurisdiction like Section 11 A of the Industrial Disputes Act vested in the Labour Court / Industrial Tribunal/ Court. Even in the said decision, thought it was submitted on behalf of the workman that in the meantime the employee has already retired and therefore, the Hon'ble Supreme Court may not be interfered with the judgment and order passed by the Labour Court / High Court, the same came to be negatived by the Hon'ble Supreme Court and the Hon'ble Supreme Court restored the order of dismissal.
6.3. Identical question came to be considered by this Court in the case of Gujarat State Road Transport Corporation vs. Khumarsinh Ramsinh Mahida reported in 2005(3) GLH 127 and in the similar set of facts and circumstances of the case and even considering the legality and validity of the order passed by the Labour Court exercising discretion under Section 11 A of the Industrial Disputes Act, 1947, this Court has held that the post of Conductor in the Corporation is that of trust and confidence where honesty and integrity are inbuilt requirements and therefore, in case of misconduct of misappropriation i.e. not issuing the tickets though the fare was collected, the Labour Court was not justified in substituting penalty imposed by the employer dismissing the employee which is the discretion of the employer. While holding so, this Court considered decisions of the Hon'ble Supreme Court in the case of Janta Bazar (South Kanra Central Cooperative Wholesale Stores Ltd) & others vs. Secretary, Sahakari Noukaraga Sangh and others reported in (2000)7 SCC 517 as well as in the case of Karnataka State Road Transport Corporation vs. B.S. Hullikatti reported in (2001) 2 SCC 574.
6.4. Now, so far as the contention on behalf of the original plaintiff that by now original plaintiff must have retired from the service and therefore, not to interfere with the impugned judgment and order passed by both the Courts below is concerned, the aforesaid cannot be accepted. Identical question came to be considered by the Hon'ble Supreme in the case of Court Janta Bazar (South Kanra Central Cooperative Wholesale Stores Ltd) (supra) and in the case of B.S. Hullikatti (supra) and despite the fact that employee retired on attaining the age of superannuation during the pendency of the proceedings, still the Hon'ble Supreme Court set aside the order passed by the Courts below by observing that even if the employee has retired, if the order passed by the Courts below deserves to be quashed and set aside the same are required to be quashed and set aside. Once it is held that the order passed by both the Courts below cannot be sustained, as such the same are required to be quashed and set aside.
7.0 In view of the above and for the reasons stated above, present Second Appeal succeeds and the impugned judgment and decree passed learned trial Court learned Joint Civil Judge, Godhra dated 5.12.1989 passed in Regular Civil Suit No.480 of 1986 as well as impugned judgment and order passed by the learned Appellate Court learned Joint District Judge, Godhra in Regular Civil Appeal No. 1 of 1990 dated 5.5.1990 are hereby quashed and set aside and the order passed by the reviewing authority dismissing the plaintiff from service is hereby restored. Present Second Appeal is allowed to the aforesaid extent. No costs.
“kaushik”
sd/ ( M. R. Shah, J. )