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 impugned judgment and decree passed by the learned 3rd Joint Civil Judge (S.D.), Rajkot passed in Regular Civil Suit No. 859 of 1992 dated 30.9.1993, by which, the learned trial Court has decreed the suit partly and has quashed and set aside the order of dismissal and directing the appellants original defendants to reinstate the plaintiff and rehear the plaintiff on the question of punishment.
1.1. The appellants hereinoriginal defendants have also prayed to quash and set aside the impugned judgment and order passed by the learned Appellate Court learned Additional District Judge and Presiding Officer, Fast Track Court No.5, Rajkot dated 14.8.2007 passed in Regular Civil Appeal No. 7 of 1994, by which the learned Appellate Court has dismissed the said appeal preferred by the appellants hereinoriginal defendants and has confirmed the judgment and decree passed by the learned trial Court.
2.0. That the respondent hereinoriginal plaintiff was serving as Conductor with the appellantsoriginal defendantsGujarat State Road Transport Corporation (GSRTC). The departmental inquiry was initiated against him for the misconduct committed by him of not issuing the tickets though the fare was collected. That in the departmental inquiry the charge levelled against the plaintiff and the misconduct of not issuing the tickets though the fare was collected came to be proved and thereafter after giving an opportunity to him he came to be removed/ dismissed from the service. That being aggrieved and dissatisfied with the order of dismissal, the respondent hereinoriginal plaintiff instituted Regular Civil Suit No.859 of 1992 submitting that departmental inquiry was illegal and was in breach of principles of natural justice. It was also submitted that even the order of punishment of dismissal was disproportionate to the misconduct alleged / proved.
2.1. That the suit was resisted by the defendants by filing written statement at Exh.9. It was submitted that the Civil Court has no jurisdiction to entertain the suit challenging the order of dismissal. It was also further submitted that as such against the order of dismissal a departmental appeal has been provided, which has not been availed by the plaintiffs. It was submitted that the departmental inquiry has been conducted after giving fullest opportunity to the plaintiffs and the same was neither in breach of principles of natural justice as alleged. It was further submitted that as charge and misconduct of not issuing the tickets though the fare was collected has been proved and therefore, it was submitted not to protect such dishonest employee. It was also submitted that as such in the past the plaintiff had committed similar 19 misconducts. Therefore, it was requested to dismiss the suit.
2.2. That the learned trial Court framed the issues inclusive of jurisdiction of the Civil Court to entertain the suit. On appreciation of evidence the learned trial Court held that departmental inquiry is just, proper and legal and the same is not in breach of principles of natural justice. However, the learned trial Court considered the punishment of dismissal imposed by the disciplinary authority as harsh and disproportionate to the misconduct proved and only on that ground quashed and set aside the order of dismissal and directed the defendants to reinstate the plaintiff and issue fresh notice and hear the plaintiff on punishment and consequently learned trial Court partly decreed the suit.
2.3. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court passed in Regular Civil Suit No. 859 of 1992 in partly decreeing the suit and quashing and setting aside the order of dismissal passed by the disciplinary authority and directing the defendants to reinstate the plaintiff on his original post and to issue fresh notice with respect to the punishment and to hear the plaintiff on the aspect of the punishment, the appellants hereinoriginal defendants preferred Regular Civil Appeal No. 7 of 1994 before the learned District Court Rajkotand the learned Appellate Court learned Additional District Judge and Presiding Officer, Fast Track Court No.5, Rajkot by impugned judgment and order dated 14.8.2007 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court.
2.4. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below, the appellants hereinoriginal defendants have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3.0. Ms. Mandavia, learned advocate for the appellants original defendants has vehemently submitted that the learned trial Court has materially erred in holding that the Civil Court has jurisdiction to entertain the suit and grant the relief prayed in the suit. Relying upon the decision of the Hon'ble Supreme Court in the case of The Rajasthan State Road Transport Corporation & Anr.
vs. Krishna Kanteto reported in 1995(2) GLH 116 as well as another decision of this Court in the case of Chandrakant Tukaram Nikam vs. Municipal Corporation of the City of Ahmedabad reported in 1993 (1) GLR 684, it is submitted that both the Courts below have materially erred in holding that Civil Court would have jurisdiction to entertain the suit challenging the order of dismissal passed by the disciplinary authority.
3.1. It is further submitted that assuming that the learned trial Court had jurisdiction to entertain the suit against the order of dismissal, the learned Civil Court has no jurisdiction to consider the proportionality of the punishment imposed by the disciplinary authority. It is submitted that the trial Court/ Civil Court has no such jurisdiction as available to the Labour Court/ Industrial Court under Section 11 A of the Industrial Disputes Act, 1947. It is submitted that once the misconduct of not issuing the tickets though the fare was collector came to be proved and the departmental inquiry came to be held legal, just and proper, the Civil Court has no further jurisdiction to consider the proportionality of the punishment imposed by the disciplinary authority as it is ultimately for the disciplinary authority to impose the appropriate punishment considering the misconduct proved. It is submitted that even otherwise considering the fact that charge and misconduct of dishonesty i.e. not issuing tickets though fare was collected came to be proved in the departmental inquiry which is held to be legal and when the disciplinary authority dismissed the plaintiff from service thereafter it was not open for the learned trial Court to interfere with the order passed by the disciplinary authority and to direct the reinstatement. It is submitted that even the learned trial Court has not properly considered the fact that in the past the plaintiff had committed similar 19 misconducts. Therefore, it is submitted that in the aforesaid facts and circumstances of the case, the learned trial Court has exercised the jurisdiction not vested in it i.e. to consider proportionality of the punishment imposed by the disciplinary authority and consequently has materially erred in decreeing the suit and quashing and setting aside the order of dismissal and directing to reinstate the plaintiff. It is submitted that the learned Appellate Court has also committed a serious error in dismissing the appeal and confirming the judgment and decree passed by the learned trial Court. By making above submissions and relying upon the above decisions, it is requested to allow the present Second Appeal.
4.0. Shri Kishor Paul, learned advocate has appeared on behalf of the respondent original plaintiff. On the aspect of jurisdiction of the Civil Court, Shri Paul, learned advocate for the respondent has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Rajasthan State Road Transport Corporation & Others vs. Deen Dayal Sharma reported in 2010 (2) GLH 540. It is submitted that now the issue with respect to the jurisdiction of the Civil Court to entertain the suit challenging the order of dismissal on the ground that the same is in breach of principles of natural justice is not resintegra. Therefore, it is submitted that both the Courts below have not committed any error and / or illegality in holding that the learned trial Court has jurisdiction to entertain the suit.
4.1. However, he is not in a position to satisfy the Court how the Civil Court would have jurisdiction to consider the proportionality of punishment imposed by the disciplinary authority more particularly, in the facts and circumstances of the case, when the departmental inquiry is held to be legal and in consonance with the principles of natural justice and when in the past the plaintiff had committed similar 19 such misconducts. However, has submitted that as such order passed by the learned trial Court confirmed by the learned Appellate Court was stayed and plaintiff was relieved / not in service pursuant to the judgment and decree passed by the learned trial Court and in the meantime the plaintiff has attained the age of superannuation and therefore, the question would be only with respect to back wages from the date of termination till judgment and decree passed by the learned trial Court and retirement benefits and therefore, it is requested not to interfere with the impugned order passed by both the Courts below.
5.0 Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that departmental inquiry was initiated against the plaintiff for misconduct of not issuing the tickets though the fare was collected. In the departmental inquiry, the said misconduct has been proved and thereafter after following due procedure as required, plaintiff came to be dismissed from service. The original plaintiff instituted suit challenging the order of dismissal on the ground that the departmental inquiry was in breach of principles of natural justice. Therefore, considering the decision of the Hon'ble Supreme Court in the case of Krishna Kanteto(supra) when the order of dismissal has been challenged on the ground that the same is in breach of principles of natural justice, the Civil Court would have jurisdiction to entertain the suit. Under the circumstances to that extent, it cannot be said that both the Courts below have committed any error and / or illegality in holding that the Civil Court/ trial Court had jurisdiction to entertain the suit challenging the order of dismissal on the ground that the same is in breach of principles of natural justice.
6.0 However, further question involved in the present appeal is assuming that the Civil Court/trial Court was having jurisdiction to entertain the suit challenging the order of dismissal / termination on the ground that the same is in breach of principles of natural justice, whether the Civil Court would have jurisdiction to consider the proportionality of punishment imposed by the disciplinary authority on conclusion of the departmental inquiry which is held to be legal and valid ? Whether the Civil Court has jurisdiction to interfere with the order of punishment imposed by the disciplinary authority and consider the proportionality of the same, the powers which are vested in the Labour Court / Industrial Court under Section 11 A of the Industrial Disputes Act ? Another question which is posed for the consideration of this Court is whether in the facts and circumstances of the case when the charge / misconduct of not issuing the tickets to the passengers though the fare was collected has been proved and when it has been found that in the past plaintiff has committed similar 19 misconducts, still the learned trial Court has justified in holding that the order of dismissal is disproportionate to the misconduct proved and was justified in quashing and setting aside the order of dismissal and passed order of reinstatement ?
7.0 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.
8.0 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.
9.0 In view of the above and for the reasons stated above, impugned judgment and decree passed by the learned trial Court interfering with the order of dismissal passed by the disciplinary authority and quashing and setting aside the order of dismissal passed by the disciplinary authority and directing to reinstate the plaintiff and to issue fresh notice with respect to punishment cannot be sustained and same deserves to be quashed and set aside and consequently impugned judgment and order passed by the learned Appellate Court dismissing the appeal preferred by the original defendant confirming the judgment and decree passed by the learned trial Court also cannot be sustained and same also deserves to be quashed and set aside.
10.0 In view of the above and for the reasons stated above, present appeal succeeds and the impugned judgment and decree passed by the learned 3rd Joint Civil Judge (S.D.), Rajkot passed in Regular Civil Suit No. 859 of 1992 dated 30.9.1993 as well as judgment and order passed by the learned Appellate Court learned Additional District Judge and Presiding Officer, Fast Track Court No.5, Rajkot dated 14.8.2007 passed in Regular Civil Appeal No. 7 of 1994 are hereby quashed and set aside. No costs.
“kaushik”
sd/ ( M. R. Shah, J. )