IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1403 of 2003 For Approval and Signature:
HONOURABLE MR.JUSTICE C.L. SONI ========================================= 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 ?
Whether this case involves a substantial question of law as 4 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 ?
========================================= GUJARAT STATE ROAD TRANSPORT CORPORATION -
Petitioner(s) Versus PRAVINSINH H ZALA - Respondent(s) ========================================= Appearance :
MR ASHISH M DAGLI for Petitioner(s) : 1, MR KR KOSHTI for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE C.L. SONI
Date : 11/05/2012
ORAL JUDGMENT
1. The petitioner-Gujarat State Road Transport Corporation has challenged the award dated 25th July, 2002 passed by the Labour Court, Surendranagar in Reference (LCS) No.147 of 1996 whereby the Labour Court has partly allowed the Reference and ordered reinstatement of the respondent-workman on his original post with continuity of service but without backwages.
2. Brief facts as can be noticed from the record of the case are to the effect that the respondent-workman was working as Driver with the petitioner-Corporation and while he was on duty, on 07th June, 1989 his bus dashed with one scooterist near Vejalpur between Dwarka – Shreenathji. As a result, pillion-rider of the scooter sustained injuries and ultimately succumbed to the injuries. A criminal complaint came to be lodged against the respondent-workman and on completion of the prosecution, respondent-workman came to be convicted by the learned Judicial Magistrate First Class and was sentenced to undergo four months rigorous imprisonment with fine for the offence under Section 279 of the Indian Penal Code, and sentence of one year rigorous imprisonment for offence under Section 304(A) of the Indian Penal Code. Both the sentences were ordered to run concurrently, meaning thereby the respondent-workman had to undergo maximum one year rigorous imprisonment. The said order of conviction and sentence imposed by the learned Judicial Magistrate First Class was confirmed by this Hon'ble Court and appeal stated to be pending before Hon'ble the Supreme Court.
3. A show cause notice dated 29th June, 2005 was issued to the respondent-workman stating that respondent was convicted by the competent Court of criminal jurisdiction and therefore, to show cause as to why his services should not be terminated. The respondent addressed a letter dated 03rd July, 1995 stating that his Appeal before the Supreme Court was pending and since he was in jail, it would not be possible for him to reply. The petitioner- Corporation thereafter dismissed the respondent from service vide dismissal order dated 19th July, 1995 by exercising power under Regulation 81 of the Gujarat State Road Transport Service Regulations.
4. The respondent-workman therefore raised industrial dispute which was registered as Reference (LCS) No.147 of 1996 before the Labour Court, Surendranagar to consider as to whether the respondent-workman should be reinstated in service with continuity of service and backwages or not. Before the Labour Court, the respondent in his statement of demand stated that he was already convicted and suffered sentence and considering his past record, he was required to be reinstated in service. It was stated that the petitioner- Corporation had no power to terminate the services of the respondent-workman without issuing any notice. On behalf of the petitioner-Corporation, evidence as regards service of notice, order of conviction passed by the competent Criminal Court and copy of Regulation was placed before the Labour Court and it was contended that since the respondent was convicted for criminal offence, the petitioner-Corporation was empowered to terminate the services of the respondent under Regulation 81 of the Regulations. It was contended before the Labour Court that service of workman, who was convicted by the Criminal Court, could be terminated under the said regulation without even issuing any notice. The Labour Court, however, came to the conclusion that the punishment of dismissal imposed upon the respondent-workman was excessive and disproportionate. The Labour Court therefore partly allowed the Reference and set aside the order of dismissal dated 10th July, 1995 and directed the petitioner- Corporation to reinstate the respondent- workman with continuity of service but without back-wages. This order of the Labour Court is challenged by filing the present petition.
5. It appears that the learned Single Judge of this Court earlier disposed of this petition vide order dated 23rd October, 2005 and confirmed the award passed by the Labour Court. However, the petitioner-Corporation moved Miscellaneous Civil Application No.787 of 2006 and pointed out that relying on Regulation 81 of the Regulations, Hon'ble Division Bench of this Court has taken a view that if employee of the petitioner-Corporation was convicted for criminal offence, such employee could be terminated from service without any further procedure. On the basis of the decision of the Division Bench, review of the order dated 23rd October, 2005 passed by the learned Single Judge was sought and ultimately the learned Single Judge by order dated 07th July, 2006 allowed the said application and recalled the order dated 23rd October, 2005. This is how this petition is now before this Court for deciding afresh.
6. Learned advocate Ms. Meghna A. Patel for learned Advocate Mr. Ashish Dagli for the petitioner submitted that the respondent was convicted and sentenced by the competent court of criminal jurisdiction for causing accident, and, therefore, as per regulation 81 of the Gujarat State Road Transport Service Regulations, the services of the respondent were liable to be terminated without any notice. She submitted that the Corporation had served notice to the workman before terminating his services under regulation 81 of the regulations and the workman had also acknowledged receipt of the notice by addressing communication stating that his appeal against the order of conviction was pending before the Hon'ble Supreme Court. In view of this, under regulation 81, since no other procedure was required to be followed, the petitioner Corporation was within its rights to terminate the services of the respondent workman.
7. She further submitted that regulation 81 clearly provides for one and the only punishment of termination of service of workman who is either convicted for offence by the competent court of criminal jurisdiction or is declared insolvent by the competent court. She therefore submitted that there was no scope for the labour court to interfere with the punishment imposed by the petitioner corporation. Additionally, she submitted that regulation 81 holds good as on today and under regulation 81, the petitioner corporation is not having any other option but to terminate the service of the workman convicted by criminal court, and therefore, it cannot be said that the action taken by the petitioner corporation was in any way illegal and once the action taken by the corporation was found to be in accordance with regulation 81, the labour court had no jurisdiction to interfere with the punishment imposed by the petitioner corporation in purported exercise of its powers under section 11-A of the Industrial Disputes Act on the ground that the punishment was disproportionate to the guilt established
against the respondent. In support of her arguments,she has also placed reliance on the decision of this Court in case of Gujarat State Road Transport Corporation versus Chaudhary Popatbhai Revabhai reported in 2005
(3) GLH 30. Relying on this decision, she submitted that the Hon'ble Division Bench of this Court has held that once conviction attains finality, there is no scope for even the Corporation to show any clemency and there was no question of the labour court exercising powers under section 11-A of the I.D. Act. Taking this Court through paragraph 12 of the said judgment, she submitted that the Hon'ble Division Bench has examined the contention as regards powers of the labour court under section 11-A of the I.D. Act and still has upheld the action of the respondent Corporation of terminating the services of the workman based on his conviction by exercising the powers under regulation 81 of the Regulations.
8. As against the above arguments advanced by the learned advocate for the petitioner, Mr. Koshti learned advocate for the respondent workman has submitted that regulation 81 should not be read in a manner to the effect that in every case where there was conviction, the workman is always to be dismissed or terminated from service. He submitted that the purpose of framing regulation 81 is not to send every workman home without considering gravity of offence for which such workman is convicted. Mr. Koshti further contended that the Industrial Disputes Act being Central Act, it would override the provisions of regulation 81 of the Regulations framed by the petitioner corporation and, therefore, if the labour court finds in a particular case that the punishment is disproportionate then, it has got powers to interfere with the punishment imposed by the petitioner corporation. He, therefore, submitted that by passing the impugned award, the labour court cannot be said to have exceeded in its jurisdiction.
9. Learned advocate Mr. Koshti has further submitted that if the powers exercised by the labour court seen vis-a-viz powers available with the petitioner corporation under regulation 81 powers of the corporation can not be unfattered so as to defeat the very purpose and intent of the legislation in conferring discretionary powers under section 11-A of the Act to interfere with the punishment imposed by the employer like the petitioner corporation. He therefore submitted that regulation 81 is ultra vires the provisions of section 11-A of the I.D.Act and, therefore, when the labour court has exercised its powers on reasonable grounds and interfered with the punishment imposed by the petitioner corporation, this court may not interfere with the award passed by the labour court, otherwise, it would defeat the very purpose of conferring the powers on the labour court under section 11-A of the I.D. Act to interfere with the punishment imposed by the employer.
10. In reply to the contention raised by the learned advocate for the petitioner on the basis of the judgment of the Hon'ble Division Bench of this Court in case of Gujarat State Road Transport Corporation versus Chaudhary Popatbhai Revabhai (supra), he submitted that the issue as regards regulation 81 being ultra virus to section 11-A of the I.D. Act, was not before the Hon'ble Division Bench of this Court and, therefore, no reliance can be placed on the above said ruling of the Hon'ble Division Bench of this Court by the learned advocate for the petitioner while challenging the award passed by the labour court.
11. Having heard the learned advocates for the parties and having gone through the record of the case, I am of the opinion that since the issue involved in the present petition is no longer res-integra and is concluded even as regards the powers of the labour court under section 11-A of the I.D. Act, the award cannot be sustained.
12. There is no dispute that the respondent workman was a driver who caused accident as a result of which pillion rider on scooter sustained injuries and succumbed to injuries. The respondent was prosecuted and convicted for the offence under Sections 279, 304(A) of the Indian Penal Code and Sections 112 and 116 of the Motor Vehicles Act and was ordered to undergo sentence of rigorous imprisonment of one year. This conviction and sentence of the respondent workman has been confirmed by this Court. Regulation 81 of the Gujarat State Road Transport Service Regulations reads as under:
“81: Notwithstanding the provisions of Regulation 61, the services of an employee, if he has been convicted in a criminal court or has been declared insolvent by a Competent Court, shall be liable to be terminated without notice by the Appointing Authority. “
13. Thus, regulation 81 of the Regulations clearly provides for terminating services of a workman who is convicted in a criminal court or has been declared insolvent by a Competent Court without notice. Still, the petitioner corporation served notice to the respondent workman stating that the respondent workman was convicted and sentenced by the criminal court and his services may be put an end to. The petitioner Corporation then terminated services of the respondent workman by exercising powers under regulation 81. Punishment of dismissal is imposed under regulation 81 as there is no other punishment provided therein. The intention and purpose behind framing of regulation 81 appears to be that whenever there is conviction of a workman by the criminal court, services of such workman is to be put an end to meaning thereby, there is no discretion or option left with the petitioner to adopt any clemency or leniency in case of a workman who has been convicted by the competent court of criminal jurisdiction.
Before the labour court, there was no dispute about the conviction of the workman by the criminal court. Notice served to the respondent workman was also produced at Exh.11 and the reply of the workman was produced at Exh. 13. Dismissal order under regulation 81 was produced before the labour court and it was pointed out that in view of regulation 81, corporation had powers to put an end to service even without issuing notice. However, the labour court was of the opinion that the act of accident of the respondent workman was an act of negligence and for such act on the part of the respondent workman, major punishment of dismissal could not have been imposed. The labour court also was of the opinion that since the respondent was already convicted and suffered one punishment, it is not proper to impose harsh punishment of dismissal against the respondent workman. The labour court, thus, on such grounds, interfered with the punishment of dismissal imposed by the petitioner corporation.
14. In my view, when the regulation 81 provides punishment of only termination or dismissal of a workman on being convicted by the criminal court, the labour court has got no discretion to interfere with the punishment imposed by the petitioner on any grounds whatsoever. In fact, the judgment cited on behalf of the workman in case of Letters Patent Appeal No. 1022 of 1995 was of no help to the workman and in fact, it lays down that the punishment imposed under regulation 81 cannot be interfered with by the labour court. The Hon'ble Division Bench of this court in the case of Gujarat State Road Transport Corporation versus Chaudhary Popatbhai Revabhai (supra) had an occasion to consider almost similar facts and identical issue and dealt with similar kind of contentions raised before it and held that the moment the conviction of a workman attains finality, then, there is no scope even for the the establishment – corporation to show any clemency in favour of the workman by not terminating his services. Hon'ble Division Bench further held that the power to interfere in the punishment is available to the tribunal or the labour court only when two points that is something minimum or something maximum and in between if in a given case any other punishment is to be considered, then, the tribunal or the labour court would have jurisdiction to interfere with the punishment but if there is no other punishment provided between two, if only one punishment is provided, then, the labour court or the tribunal will have no jurisdiction to interfere with such punishment. Powers of labour court under section 11A was considered and it was held that no relief under section 11-A of the I.D. Act can be given to the respondent workman when the powrs under regulation 81 is exercised by the establishment or employer. Following observations in paragraph 9 to 12 are material and relevant for our purpose:
“9. So far as the observations made by the learned Single Judge and the argument of the learned counsel for the respondent are concerned; that Regulation 81 of the Regulations in fact gives wide discretion to the employer is concerned, is now being taken up for consideration. The learned Single Judge has observed that the language suggests “services shall be liable to be terminated” and not “shall be terminated”. The learned Single Judge has observed that the word “liable” gives and confers discretionary powers on the Corporation to terminate or not to terminate the services of an employee. With due respect to the learned Single Judge in our considered opinion the interpretation put forth by the learned Single Judge is contrary to law. The words, “shall be liable to be terminated” would mean that a decision has been taken while the words, “shall be terminated” would mean an action to be taken. In view of the language used in Regulation 81 of the Regulations the words are to be read in their true perspective. The moment a final conviction is reported to the establishment then, they have to take an action and the services shall be terminated. The law of interpretation clearly says that the intention of the Legislature or makers of the rule should be gathered from the language employed in the legislation or the rule. In the present matter the intention of the makers of the Regulation was that once a man is convicted by a competent criminal court or he has been declared insolvent by a competent court, his services shall be terminated. The services “shall be liable to be terminated” or “shall be terminated” would not make much difference because the moment an employee is convicted then under the Service Regulations or Service Conditions a convict cannot be continued in service. In the present matter the moment conviction of the respondent attained finality then there was no scope even for the establishment/ appellant to show any clemency in favour of the employee by not terminating his services. We are unable to uphold the view of the learned Single Judge.
10. So far as the question relating to unblemished career of the respondent and 15 years of service rendered by him are concerned we can only say that for a wrong if a capital punishment can be awarded and if is rightly awarded then there would be no scope for any interference. The appellant/ establishment was certainly justified in taking action under Regulation 81 of the Regulations because they had every foundation and requirement available to them.
11. It was faintly argued by the learned counsel for the respondent/ workman that the present is a case where this Court should interfere under section 11-A of the Act.
12. Section 11-A of the Act relates to powers of the Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. In a given case the Labour Court can interfere in the matter where they find that the punishment inflicted upon or awarded to the workman is shockingly disproportionate. In a given case, if there is some scope for the Labour Court or High Court to interfere in a given matter, then the courts certainly can interfere, but interference on the question of punishment can only be made, if between the two limits punishment can be imposed or inflicted upon. There must be something minimum or something maximum. In a given case where one single punishment is provided for a lapse, wrong or misconduct, then no court would have any jurisdiction to interfere on the question of punishment. If in such a case the Court tends to interfere on the question of punishment then the said Court virtually would be re-writing the Regulation by interpreting that the word, “termination” should be read as 'may be terminated' or 'is likely to be terminated'. That not being the intention of law no relief under section 11-A of the Act also can be given to the respondent workman. The order passed by the learned Single Judge is set aside and the award made by the learned Labour Court is quashed. The Appeal is allowed. The reference is answered in negative.
15. In view of what has been held above by the Hon'ble Division Bench of this Court which I am bound to follow, it is not open to this Court to examine the contention of learned advocate Mr. Koshti that regulation 81 is ultra virus to section 11-A of the I.D. Act and it defeats the purpose for which section 11-A of the I.D. Act was introduced and to hold that the labour court has discretion and jurisdiction to interfere with the punishment imposed by the petitioner corporation.
16. In view of what is stated above, this petition is required to be allowed. Accordingly, it is allowed. Judgment and award passed by the Labour Court Surendranagar dated 25.7.2002 in Reference (LCS) No. 147 of 1996 is hereby quashed and set aside. Rule is made absolute. No order as to costs.
(C.L. Soni,J.) an vyas