By way of the present petition, the petitioner-Gujarat State Road Transport Corporation ('the petitioner-Corporation' for short) has challenged the legality and validity of the judgment and award passed by Presiding Officer, Labour Court, Ahmedabad in Reference (LCA) No.1889 of 1998 dated 12.01.2000 whereby the Labour Court partly allowed the reference and directed the petitioner-Corporation to pay the wages from the date of termination i.e. from 11.07.1979 to 22.11.1982, the date on which the respondent-workman came to be reinstated. It was further ordered that as the respondent-workman reached at the age of superannuation on 31.05.1999 there is no question of reinstating the respondent-workman. However, considering the judgment and award, the difference of pay as well as all other benefits, including promotion, should be calculated and imposed punishment of deduction of one year's increment without future effect and accorded such benefits to the respondent-workman.
The facts which can be carved out from the record of the petitioner are summarized as under:
That the respondent-workman was appointed as a helper in the Central Workshop at Naroda on 28.10.1960. It is a matter of record that the respondent-workman was thereafter appointed as driver in the year 1968. It bornes out from the record that on 07.07.1977 the respondent-workman was on duty in S.T. bus bearing No.GTH 5496 on the route from Ahmedabad to Virpur. That while reversing the bus, in rash and negligent manner at Modasa depot, an accident took place wherein the conductor of that bus suffered severe injuries and ultimately he succumbed to such injuries in the hospital. It reveals from the record that for the aforesaid incident, the petitioner-Corporation issued a charge-sheet dated 10.08.1977 to the respondent-workman, to which the respondent-workman filed a reply. That as the said reply was not found satisfactorily and the charges leveled against the respondent-workman were found to be grave. That the petitioner-Corporation therefore issued a show cause notice to the respondent-workman and inquiry officer was appointed and inquiry was held against the respondent-workman. That the respondent-workman was also offered personal hearing and after following due process, the respondent-workman came to be dismissed from service on 11.07.1979. Being aggrieved by the order of dismissal, the respondent-workman filed a departmental appeal, which came to be dismissed vide order dated 30.07.1979. That the respondent-workman availed the further remedy and filed second appeal before the appellate authority wherein on 01.03.1982 the appellate authority, passed an order of reinstatement and accordingly the respondent-workman came to be reinstated w.e.f. 01.03.1982. However, as there is difference of pay between the date of dismissal i.e. 11.07.1979 and 01.03.1982, the date on which the respondent-workman came to be reinstated by way of order passed in the second appeal, the respondent-workman raised a dispute, which came to be referred to the Labour Court and the same was registered as Reference (LCA) No.303 of 1979. The said reference was dismissed. It is further matter of record that being aggrieved by the said judgment and award, the respondent-workman preferred a writ petition being Special Civil Application No.3635 of 1983 wherein by judgment and order dated 13.08.1996 this Court (Coram: S.K.Keshote, J) (as he then was) dismissed the said petition with costs. That the said judgment and order was challenged by the respondent-workman by filing Letters Patent Appeal No.1361 of 1996, which also came to be dismissed by Division Bench of this Court (Coram: C.K.Thakkar & S.D.Pandit, JJ) (as they then were) vide judgment and order dated 28.08.1997.
It further transpires from the record that thereafter the respondent-workman again on the same issue raised a dispute i.e. present Reference (LCA) No.1889 of 1998 wherein Presiding Officer, Labour Court, Ahmedabad by judgment and award dated 12.01.2000 allowed the said reference partly, as stated above. Being aggrieved by the impugned judgment and award, the petitioner-Corporation has preferred the present petition.
Heard Mr.Dipen Desai, learned advocate for the petitioner-Corporation, and Mr.M.T.Saiyad, learned advocate appearing for respondent-workman.
Mr.Desai, learned advocate for the petitioner, has taken this Court through the impugned judgment and award as well as factual matrix of the matter. It was vehemently submitted that from the statement of claim it is clear that the issue which was raised by the respondent-workman before this Court in Special Civil Application No.3635 of 1983 decided by this Court against the respondent-workman, as confirmed by Division Bench of this Court in Letters Patent Appeal No.1361 of 1996 is similar to the present case. It was therefore submitted that the Labour Court has committed an error apparent on face of record in entertaining the reference. It was therefore submitted that even though the said fact was brought to the notice of the Labour Court, only on the ground that the copies of the orders passed in Special Civil Application No.3635 of 1983 and Letters Patent Appeal No.1361 of 1996 were not placed on record, the Labour Court has decided the reference on its own and has thereby committed an error apparent on face of record. It was further submitted that only taking into consideration that the respondent-workman was acquitted from the criminal proceedings the Labour Court has come to an erroneous finding that the respondent-workman is entitled to the salary from the date of dismissal i.e. from 11.07.1979 till the date of reinstatement i.e. 22.11.1982. It was therefore submitted that the impugned judgment and award is erroneous and the same deserves to be quashed and set aside and the petition deserves to be allowed.
Per contra Mr.Saiyad, learned advocate appearing for the respondent-workman, submitted that the respondent-workman has not suppressed the fact that the aforesaid writ petition and the Letters Patent Appeal filed by the respondent-workman were dismissed. Relying upon the findings arrived at by the Labour Court it was submitted that the Labour Court has rightly appreciated the evidence on record and has awarded the pay for the interregnum period from the date of dismissal till the date of reinstatement. It was submitted that the petition is devoid of any merits and the same deserves to be dismissed.
Considering the submissions made by the learned counsel for the parties, on perusing the impugned award, as well as the judgment and order dated 13.08.1996 of this Court passed in Special Civil Application No.3635/1983, which was confirmed by the judgment and order dated 28.08.1997 by the Division Bench of this Court in Letters Patent Appeal No.1361 of 1996 it clearly transpires that the same issue was urged in the earlier writ petition filed by the respondent-workman. As noted hereinabove, the respondent-workman came to be reinstated w.e.f. 22.11.1982 and has retired on reaching at the age of superannuation on 31.05.1999. This Court in Special Civil Application No.3635 of 1983 observed thus:
"5. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. It is not in dispute that the petitioner has been acquitted in the criminal case which has been registered against him in connection with the causing of death of the conductor of the bus by his negligent driving. The learned counsel for the petitioner though cited many of the decisions of the Supreme Court and of this Court, but I do not find in any of the case where the court has held that in no case the department should have proceeded against a delinquent departmentally in connection with somewhat identical charges which was the subject matter of the trial in a criminal case. In the case of Corporation City of Nagpur vs. Ramchandra (supra) the Supreme Court has held that the question whether or not the departmental inquiry pending against the employee involved in a criminal case should be continued even after his acquittal in the criminal case is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where accused is acquitted honourably and completely exonerated of the charges, it is not expedient to continue the departmental inquiry on the very same charges or grounds or the evidence. However merely because accused in acquitted power of the authority concerned to continue departmental inquiry is not taken away nor its discretion in any manner fettered. So there is nothing to be read in this decision as the counsel for the petitioner contended that no inquiry could have been proceeded against the petitioner. On the reading of this decision of the Supreme Court on the other hand, it is clearly borne out that it is permissible to the departmental authorities to proceed departmentally on the very same charges after the acquittal of the petitioner. The Supreme Court has clearly given out that merely on acquittal of the delinquent employee in the criminal case, the power of authority concerned to continue departmental inquiry is not taken away nor its discretion in any manner fettered.
6. In the case of Nelson Motis vs. Union of India (supra) the Supreme Court has considered the case where the disciplinary proceedings could have been continued after the acquittal of the delinquent in the criminal case. The Supreme Court held that "whether the disciplinary proceeding could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and the scope of a criminal case are very different from those of a disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding."
7. In the case of Kusheshwar Dubey Vs. Bharat Coking Coal & Anr. reported in 1988 (4) SC 319, the Supreme Court has held that "while there can be no bar for simultaneous proceedings being taken yet there may be cases where it would be appropriate to defer disciplinary proceedings awaiting the disposal of the criminal case. In the latter class of the cases it would be open to the delinquent employee to seek such an order of stay or injunction from the court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending the criminal trial. The court has further held that it is neither possible nor advisable to evolve a hard and fast, strait-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation." In that case before the Supreme Court, the criminal action and the disciplinary proceedings were accepted to be grounded upon the same set of facts, and as such, it is considered appropriate for staying of the disciplinary proceedings. Where the disciplinary proceedings and the criminal proceedings are grounded upon the same set of facts then in that case the disciplinary proceedings were advisable to be stayed, but there is no ratio that after the acquittal in the criminal case, those proceedings cannot be proceeded. In the aforesaid case, the Court has said that there are also authorities in support of the position that there is nothing wrong in parallel proceedings being taken - one by way of disciplinary proceedings and the other in the criminal court. A reference in this respect has been given to the earlier decision of the Apex court in the case of Jang Bahadur Singh v. Baij Nath Tiwari. The standard of proof in the criminal case and in the disciplinary proceedings differs. In the criminal case, the guilt of the delinquent employee has to be proved beyond reasonable doubt, but in the disciplinary proceedings that standard of proof is not required. The disciplinary proceeding is not a criminal trial, and as such, the standard of proof of the charges framed against the delinquent employee is that of preponderance and probability. A reference in this respect may have to the decision of the Supreme Court in the case of Union of India Vs. Sardar Bahadur reported in 1972(2) SCR 218. There are catena of authorities of the apex court that it is permissible to proceed simultaneously against the delinquent employee departmentally by way of departmental proceedings as well as in the criminal proceedings, and on acquittal of the delinquent employee in the criminal proceedings, there is no question of his total exoneration of the charges in the disciplinary proceedings.
8. The first contention raised by the learned counsel for the petitioner, in view of this fact and law as stand, is not acceptable. Now I may refer to the contention of the learned counsel for the petitioner that the penalty which has been given to the petitioner is harsh or excessive. In the case of State Bank of India vs. Samendrakishore (supra), the apex court has held that what appropriate penalty should be given to a delinquent for a proved misconduct is exclusively in the domain and area of consideration of the disciplinary authority and not for the court or the Tribunal. The court has held that in the matter of what penalty should be given for a proved misconduct this court has no judicial power of review. But in the case of B.C. Chaturvedi Vs. Union of India, the apex court has held that "a review of the legal position would establish that the disciplinary authority, and on appeal the appellate authority being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal while exercising the power of judicial review cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief either directing the disciplinary/appellate authority to reconsider the penalty imposed or to shorten the litigation it may itself in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." So in view of the decision of the Supreme Court in the case of B.C. Chaturvedi Vs. Union of India (supra) this court may go and apply of its judicial mind to the question of proportionality for the punishment of the penalty, but then while seized with this question as a High court interference is permissible only when the punishment or the penalty is shockingly disproportionate to the guilt. Judicial review as is known is not an appeal but a review of the manner in which the decision is made. So on the question of disproportionate or the punishment of the penalty, this Court will not sit as an appellate authority above the decision of the lower authorities. The arena of consideration is on the question whether the penalty is shockingly disproportionate or shocks the conscience of the court. Keeping in view this limitation, the contention made by the learned counsel for the petitioner has to be considered. The delinquent employee, petitioner herein, was chargesheeted with the serious charges of negligent driving resulting and causing death of the employee of the Corporation, the conductor of that very bus. The disciplinary authority has given the penalty of dismissal to the petitioner. The appellate authority has the appeal powers and it can sit as an appellate Court and and it has to sit as an appellate court above the decision of the disciplinary authority. The appellate authority in the present case has taken a lenient view in the matter of punishment of the penalty to be given to the petitioner for a proved mis conduct and the penalty of dismissal was substituted by the penalty of reduction in the pay scale. So present is a case where the appellate authority has gone into this question and the penalty has been reduced. The question is whether the penalty which has been given by the appellate authority is shockingly disproportionate to the guilt for which the petitioner was chargesheeted or shocks the judicial conscience of this Court, taking into consideration the fact that the negligence of the petitioner has been proved in driving of the vehicle, and as a result the conductor of the bus died, it cannot be said that the penalty given by the appellate authority is shockingly disproportionate or it shocks the judicial conscience of this court. It is not a case where any interference of this court is called for on the question of proportionality of the punishment.
9. In the result, this Special Civil Application fails and the same is dismissed. Rule discharged. The petitioner is directed to pay Rs.1000/- to the Corporation by way of costs of this writ petition. The Corporation is directed to recover the costs from the salary of the petitioner in the instalment of Rs.100/- per month."
Even the Division Bench of this Court in Letters Patent Appeal No.1361 of 1996 while dismissing the appeal in order dated 28.08.1997 has observed thus:
"3. The learned Single Judge was of the view that " The appellate authority in the present case had taken a lenient view in the matter of punishment of penalty to be given to the petitioner for a proved misconduct and the penalty of dismissal was substituted by the penalty of reduction in the pay scale.
4. xxx xxx xxx
5. In the facts and circumstances of the case and without making wider observations, we are of the opinion that the order passed by the learned Single Judge cannot be said said to be illegal, improper or unjustified. When a finding is recorded by the authorities that there was negligence on the part of the appellant due to which an accident took place wherein the conductor lost his life the learned single Judge was right in observing that the appellate authority was indeed liberal in granting reinstatement to the appellant.
6. It cannot be said that order of learned single Judge suffers from illegality or infirmity. We do not see any reason to interfere with the order passed by the learned single Judge. Hence the appeal deserves to be dismissed and it is accordingly dismissed. Notice discharged. No costs."
It appears from the record that after dismissal of Letters Patent Appeal No.1361 of 1996 on 28.08.1997 on the same issue a demand was raised by the respondent-workman and the Conciliation Officer referred the dispute to the Labour Court on 05.12.1998. The Labour Court was conscious of the fact that the judgment and order passed in the writ petition filed by the respondent-workman on the same issue was confirmed in the Letters Patent Appeal. In fact the respondent-workman had challenged the penalty imposed by the appellate committee by raising a dispute which came to be dismissed, which was the subject matter of the writ petition before this Court and it appears from the impugned award that the fact that earlier reference, writ petition and Letters Patent Appeal have been dismissed is admitted by the respondent-workman. Still, however, the Labour Court, only relying upon the oral evidence led by the respondent-workman, has passed the impugned award. It is also evident from the statement of claim that even though the respondent-workman himself has mentioned that the respondent has been reinstated w.e.f. 22.11.1982 and the interregnum period has been treated as leave without pay and has been placed in the original pay-scale as per the decision taken in the second appeal, against which the respondent-workman had raised a dispute which was referred as Reference No.303 of 1979 and has also stated that he has filed Complaint No.294 of 1997, which came to be dismissed, against which the respondent-workman had filed Special Civil Application No.3635 of 1983. The said facts have not been considered by the Labour Court. It is further pertinent to note that the fact that the said writ petition was dismissed has been stated by the respondent-workman himself in the statement of claim. However, on the ground that the copies of the judgment and orders passed by this Court in earlier writ petition and in the Letters Patent Appeal are not produced by the petitioner-Corporation, the Labour Court has come to an erroneous finding that the reference is maintainable. It is further pertinent to note that the statement of claim was dated 26.02.1999 and was filed on 06.04.1999 before the Labour Court wherein the fact that the order passed in Special Civil Application is confirmed in Letters Patent Appeal No.1361 of 1996 is suppressed by the respondent-workman.
Considering the aforesaid facts it is clear that the Labour Court has committed an error apparent on face of record and has not even taken care of examining the judgment of this Court and the fact that the respondent-workman, as stated in the statement of claim, has also not been considered by the Labour Court. The impugned judgment and award is therefore deserves to be quashed and set aside by allowing this petition.
Resultantly, the impugned judgment and award is hereby quashed and set aside. The petition is allowed. Rule is made absolute accordingly. There shall be no order as to costs.
Sd/-
[R.M.CHHAYA, J ] *** Bhavesh* Top