IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 12212 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ DIVISIONAL CONTROLLER Petitioner(s) Versus AMAD HASAM GUNGA Respondent(s) ================================================================ Appearance:
MR HARDIK C RAWAL, ADVOCATE for the Petitioner(s) No. 1 MR MUKESH H RATHOD, ADVOCATE for the Respondent(s) No. 1 MR GK RATHOD, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI Date : 26/12/2012 ORAL JUDGEMNT
1. Rule. Mr. Mukesh Rathod, learned advocate appearing for the respondent waives service of notice of Rule. With the consent of the parties matter is taken up for final hearing today. Heard learned Advocate Mr. Hardik Rawal for the petitioner and Mr. MH Rathod for the respondent workman.
2. By filing of this petition under Article 226/227 of the Constitution of India, the petitioner is challenging the award dated 24.05.2012 passed by the Industrial Tribunal, Rajkot in Reference I.T No. 60 of 2009 whereby the punishment order was quashed and set aside and the petitioner was directed to pay the arrears to the respondent.
3. According to the corporation, the respondent was an employee with the petitioner as a driver. The respondent, while on duty could not balance the bus and lost control of the bus as a result of which 17 passengers were injured and one expired. In respect of the said charge, departmental inquiry was held against the driver while following the principles of natural justice and punishment of bringing the respondent to his original pay scale was imposed.
3.1 Against the said order the employee preferred departmental first appeal which was partly allowed and the punishment was reduced to bringing the respondent 10 stages down on the pay scale of driver. The respondent employee challenged the same by way of filing second appeal which was rejected. The said order was challenged by the respondent workman before the Industrial Tribunal. The Tribunal after hearing the parties passed the aforesaid award.
4. Mr. Hardik Rawal, learned advocate appearing for the petitioner submitted that the Tribunal has erred in not appreciating the fact that already a lenient view was taken by the appellate authority. He submitted that looking to the gravity of offence where one passenger expired and 17 others sustained injuries, this Court may impose some punishment on the respondent workman instead of allowing him to go scott- free. He submitted that even the default card shows 6 defaults on the part of the respondent.
5. Mr. Rathod, learned advocate appearing for the respondent workman supported the award passed by the Tribunal. He submitted that the Tribunal is just and proper in passing the impugned award.
6. I have perused the materials placed on record. The appellate authority has come to the conclusion that the punishment imposed by the competent authority for the misconduct is disproportionate and on higher side and, therefore, eventually the punishment of bringing him to ten stages below the basic pay was imposed.
6.1 The Tribunal has gone into the details of the case and has come to the conclusion that the punishment was not in accordance with law. The Tribunal has found fault with the inquiry and considering the same has quashed the punishment imposed upon the respondent workman. It appears that the petitioner failed in providing necessary documentary evidence in support of its claim. The default card shows that there are 6 defaults committed by the respondent workman.
6.2 This court is of the view that considering the impact of the accident some punishment ought to have been imposed upon the employee so as to have a deterrent effect on the employee and similarly situated people. In that view of the matter, this court is of the opinion that the order of the Tribunal is required to be quashed and set aside. The order of the first appellate authority is modified by imposing punishment of stoppage of one increment with future effect.
7. In the premises aforesaid, petition is partly allowed. The punishment imposed by the first appellate authority is substituted with punishment of stoppage of one increment with future effect. The award of the Tribunal is quashed and set aside. The order of the first appellate authority is modified accordingly. Accordingly, the legal dues permissible and admissible to the respondent shall be paid by the petitioner within a period of six months from the date of receipt of the writ of the order of this Court. Rule is made absolute accordingly. Direct service is permitted.
divya (K.S.JHAVERI, J.)