Heard learned advocate Mr. HC Rawal on behalf of petitioner, learned advocate Mr. TR Mishra appearing for respondent.
In the present petition, petitioner has challenged the order passed by Industrial Tribunal, Ahmedabad in Approval Application no. 339/2005 dated 25/9/2007, where Approval application is rejected by Industrial Tribunal, Ahmedabad.
Learned advocate Mr. Rawal appearing for petitioner submitted that Industrial Tribunal has committed gross error in rejecting Approval application. He submitted that Tribunal is having limited jurisdiction under section 33(2)(b) not having jurisdiction to examine finding and merits of matter and he has to only see prima facie case whether notice pay was paid to workman or not, Approval application was filed in time or not and inquiry conducted by Employer is in accordance with principle of natural justice or not.
He submitted that notice pay was paid to workman, Approval application was also made in time and departmental inquiry was conducted in accordance with principle of natural justice. For that, there was no challenge by respondent before Tribunal.
He also raised contention that approval authority has no jurisdiction to examine legality and validity of finding given by Inquiry Officer. The Tribunal has examined merits and come to conclusion that finding given by Inquiry Officer is baseless and perverse, therefore, such decision is erroneous and contrary to settle law.
He relied upon the recent two decisions of Apex Court to that extent that in reference, under section 10 of I. D. Act, 1947, Labour Court has no jurisdiction to examine legality and validity of finding, if, once, departmental inquiry is held to be legal and valid (i) in case of U. P. State Road Transport Corporation Vs. Vinod Kumar and Another reported in JT 2007 (13) SC 404 and (ii) in case of Employers in relation to the Management to West Bokaro Colliery of M/s TISCO Ltd., Vs. The Concern Workman, Ram Pravesh Singh reported in JT 2008 (2) SC 272.
Learned advocate Mr. Mishra appearing for respondent submitted that Industrial Tribunal has jurisdiction to examine finding while considering Approval application under section 33(2)(b) of the I. D. Act 1947.
He relied upon one decision of this Court in case of Ahmedabad Municipal Transport Service Vs. Budbhabhai Atmaram reported in 2008(2) GLR page 1341 where this Court has examined question that whether Industrial Tribunal has jurisdiction to decide legality and validity of finding or not.
He also relied upon the decision of Apex Court in case of Central Bank of India., New Delhi Vs. Prakash Chand Jain reported in 1969 II LLJ 377 as well as recent decisions of Apex Court in case of
(i) Mavji C. Lakum Vs. Central Bank of India reported in 2008 (7) SCALE 32, (ii) Usha Breco Majdoor Sangh vs. Management of M/s Usha Breco Ltd. & Another reported in 2008 (3) Supreme Today 217, (iii) Management, Essorpe Mills Ltd Vs. Presiding Officer, Labour Court & Others.
He submitted that in recent decision of Apex Court, when departmental inquiry is held to be legal and valid, even though, Industrial Tribunal or Labour Court has jurisdiction to decide finding whether it is valid or not or it is based upon the legal evidence or not or baseless and perverse or not.
I have considered submissions made by both learned advocates and I have perused order in question passed by Industrial Tribunal. Looking to the facts on record, charge sheet no. 487/2004 dated 5/11/2004 was served to respondent workman by petitioner. Thereafter, departmental inquiry was conducted against workman and show cause notice dated 30/6/2005 was issued to workman, which was replied by him on 9/7/2005. Ultimately, he was dismissed from service on 29/7/2005. Because of the general dispute pending before Industrial Tribunal being no. 37/2000 where workman is concerned workman then approval is necessary and application under section 33(2)(b) was filed by petitioner.
The allegation against workman was that one passenger was found without ticket at relevant time, when bus was checked by Checking Staff. According to report made against workman on 13/8/2004, in all 24 passengers were traveling and one passenger was found without ticket but according to workman there was no passenger found without ticket and all passengers were found with tickets. Actually, there were thirty two + four passengers means thirty six passengers were traveling in bus at the relevant time, when bus was checked by checking staff, which was recorded in way bill of concerned workman. Therefore, according to workman, report was wrong and contrary to way bill.
In light of the basic fact whether one passenger was found without ticket or not, Tribunal has considered spot statement obtained by checking staff from concerned passenger, where statement was made by passenger that he was having a ticket issued by Conductor and accordingly he has paid fare to Conductor. This statement of passenger supported the defence of workman, which has been considered by Inquiry Officer in a manner that such statement may be wrong or mistaken as given by passengers. Therefore same was not relied upon by Inquiry Officer.
The workman has made it clear in reply to show cause notice that his spot statement was obtained by checking staff while adopting coercive method against workman. These two facts are on record.
The discussion by Inquiry Officers was different and come to conclusion on the basis of presumption, which has been find out by Tribunal that finding given by Inquiry Officers is not based upon legal evidence and it is based on presumption and assumption, even though, there is no legal evidence available on record to support such presumption or assumption.
The misconduct is not proved at all after looking to the evidence on record, before Inquiry Officer and when workman given explanation in departmental inquiry was not cross examined by Corporation in departmental inquiry. The traffic cash of workman was not checked by Checking staff and it was not found that some excess amount is lying with workman.
Therefore, ultimately, Tribunal has come to conclusion that finding given by Inquiry Officer is baseless and perverse. Looking to the evidence on record, there is no supported legal evidence to conclusion of inquiry officer.
The Industrial Tribunal has relied upon decisions of Apex Court in case of (i) Lalaram, Vs. Management of D. C. M. Chemical Workers Ltd., reported in AIR 1978 SC 1004 (ii) in case of G. K. Sen Gupta Vs. Hindustan Construction Co. Ltd., reported in 1994 LLR 550 and in case of Ram Lakhan Vs. Presiding Officer at page 829 and in case of Tamilnadu State Transport Corporation Vs. Nithi Vilangan at page 830 of the Industrial Tribunal Act Volume as well as in case of Delhi Transport Corporation Vs. Shayamlal reported in 2004 (3) LLJ 532 SC.
The spot statement given by passenger was supporting to defence of workman can not considered to be statement given by passenger just to help the Conductor or with malafide intention, without examining concerned passenger in departmental inquiry, the Inquiry Officer has found that such statement is wrong or bonafide mistaken of the passenger concerned. Therefore, slightest change, which was made in statement of passenger and then not to consider as it is without examining passenger in departmental inquiry. Then such finding is certainly baseless and perverse.
Therefore, the Industrial Tribunal has rightly come to conclusion that finding is baseless and perverse, for that Industrial Tribunal has not committed any error which would require interference by this Court.
In the departmental inquiry, statement was made by Conductor that he has not recovered fare from passenger, which fact has not been challenged by Corporation in departmental inquiry, then not to rely upon statement of Conductor and come to different conclusion is contrary to the record, that has been held to be baseless finding given by Inquiry Officer. For that, according to my opinion, Tribunal has not committed any error which would require interference by this Court.
Recently, this Court has examined same issue after considering submissions made by learned advocate Mr. Rawal in SCA no. 8717/2008 in case of G. S. R. T. C. through Divisional Controller Vs. Ambaram M. Chaudhari dated 30/6/2008. From the said decision, para no. 17 is relevant, therefore, quoted as under:
ýS17. Therefore, in light of aforesaid subsequent decisions of Apex Court, the decisions relied upon and cited by learned advocate Mr.Rawal cannot be relied and accepted by this Court in view of the recent decisions of Apex Court on the subject as considered by this Court. Therefore, while deciding approval application, the Tribunal has power and jurisdiction to examine the legality and validity of finding even though legality and validity of departmental inquiry is not challenged by the workman. Therefore, contentions raised by learned advocate Mr. Rawal is rejected.ýý In view of the above observations made by this Court while deciding case as referred above and considering the recent decisions on the subject decided by Apex Court, the Tribunal has jurisdiction to examine legality and validity of finding while deciding approval application.
Therefore, contentions raised by learned advocate Mr. Rawal can not accepted and same are rejected. According to my opinion, when Tribunal has not committed any error while rejecting approval application, no interference would require by this Court while exercising the power under Art 227 of the Constitution of India.
Hence, there is no substance in the present petition. Accordingly, present petition is dismissed.
(H.K.RATHOD, J) asma