1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner – Gujarat State Road Transport Corporation (hereinafter referred to as 'Corporation') has challneged the legality and validity of the judgment and award passed by the Presiding Officer, Labour Court, Nadiad in Reference (LCA) No. 349 of 1997 dated 24.9.1999.
2. The facts which can be culled out from the record of the petition are as under:
3. That respondent workman was working as Booking Clerk in Mahudha Depot under Nadiad Division of the petitioner Corporation. It is the case of the petitioner Corporation that during the period from 1.7.1982 to 17.1.1983 the respondent workman while working as Booking Clerk had misappropriated the funds of the petitioner Corporation with the help of one conductor Mr. R.G.Sodha Parmar. It is the case of the petitioner Corporation that the respondent in his capacity as Booking Clerk issued 19 blocks of Re.1/- ticket which had been booked in nine column register as outward for the Conductor. However, the same was not shown in C.W. Way Bill nor in the Way Bill Register. It is the case of the petitioner Corporation that by doing so, the respondent workman working as Booking Clerk in connivance with the Conductor sold away the tickets and thereby defrauded the petitioner Corporation to the tune of Rs.2,100/-.
4. It is the case of the petitioner Corporation that the checking was conducted and the office of Assistant Traffic Superintendent of Mahudha Depot had investigated, interrogated and as per evidence on record, he made detailed report dated 1.2.1983. It is the matter of record that on the basis of the said report dated 1.2.1983 the petitioner Corporation issued chargesheet No. 18 of 1983 to the respondent workman stating all charges. It is the matter of record that personal hearing was afforded to the respondent workman, however, the respondent workman preferred not to remain present even though all the required documents were supplied to the respondent workman by the petitioner Corporation. It is the case of the petitioner Corporation that on 10.3.1983, 15.3.1983, 18.3.1983 and 25.3.1983 the respondent was again called for personal hearing, however, the
respondent workman did not cooperate and hence the inquiry could not take place. It is the case of the petitioner that the inquiry was held and on the basis of which, report was submitted. It is the case of the and the respondent workman was found to have misappropriated the amount of Rs.2,100/- as observed hereinabove. After considering the evidence on record further Show Cause Notice was issued on 30.7.1983 upon the respondent workman and on examination of the evidence on record the respondent workman was found guilty.
5. The petitioner Corporation thereafter filed application for approval to the order of dismissal and the respondent workman was afforded ample opportunity to defend his case and after following due process and after observance of principles of natural justice, by order dated 12.11.1983 the petitioner Corporation dismissed the respondent workman from service.
6. Being aggrieved by order of dismissal the respondent workman raised dispute before the Competent Authority i.e. Labour Court, Nadiad and as the conciliation failed the said dispute was referred to the Presiding Officer of the Labour Court, Nadiad which came to be registered as Reference (LCN) No.
349 of 1987.
7. The Labour Court after considering the evidence on record was pleased to partly allow the said Reference directing the petitioner Corporation to reinstate the petitioner from the date of raising dispute i.e. 5.5.1987 with 50% backwages from the said date by impugned award dated 24.9.1999. Being aggrieved by the said judgment and award, the present petition is filed by the petitioner Corporation.
8. Heard Mr. Dipen Desai, learned Counsel for the petitioner Corporation and Mr. Rathod, learned Counsel for the respondent workman.
9. Mr. Desai has taken this Court through impugned award as well as factual matrix and other documentary evidence which are part of the record of the petition. Mr. Desai pointed out that the impugned judgment and award is perverse and even though the respondent workman has played active role for misappropriation the Labour Court has travelled beyond the scope of its jurisdiction by entertaining the present Reference. Mr. Desai submitted that the petitioner Corporation has been able to establish that the charge of misappropriation against the respondent workman is proved beyond the doubt and there was strong evidence which establishes the guilt of the respondent workman. The Labour Court has misread the evidence and has committed an error apparent on the face of the record by allowing the Reference partly by impugned judgment and award. Mr. Desai pointed out that the post of Booking Clerk is a responsible post and only because the respondent workman has been acquitted by competent Criminal Court the same cannot be made basis for coming to the conclusion that the charges levelled against the respondent workman are not proved. Mr. Desai therefore submitted that the Labour Court has committed an error apparent on the face of the record. Mr. Desai further relied upon the judgment of the Apex Court in the case of Janatha Bazar (South Kanara Central Cooperative Wholesale Stores Ltd.) and others Vs. Secretary, Sahakari Noukarar & Others, reported in (2000) 7 SCC 517 and pointed out that in case when the charge of misappropriation is proved may be small or large amount, the Labour Court cannot show any sympathy and exercise its compassionate jurisdiction which is not otherwise required to be exercised. Mr.
Desai submitted that the petitioner Corporation as an employer has lost confidence in the respondent workman and therefore the Labour Court ought not to have interfered with the order of dismissal. Mr. Desai therefore submitted that the petition deserves to be allowed. Mr. Rathod further submitted that the Labour Court after careful examination of the report has come to the conclusion that the petitioner Corporation has not been able to prove any misconduct.
10. Per contra, Mr. Rathod submitted that even before the Labour Court the petitioner Corporation was not able to place on record any papers relating to the inquiry on the ground that the file is not traceable. Mr. Rathod therefore submitted that the findings arrived at by the Labour Court are legal and proper. Mr. Rathod therefore submitted that the petition is devoid of any merit and the same deserves to be dismissed.
11. Having considered the submissions made by both the Counsels and on perusal of the award it transpires that the respondent workman has been acquitted by the competent Criminal Court i.e. JMFC, Nadiad in Criminal Case No. 627 of 1983. The Labour Court has examined each and every contentions raised by the respondent as well as the petitioner Corporation. It is noted by the Labour Court that the petitioner Corporation has not produced papers/documents relating to the departmental inquiry. It transpires that on the contrary, the respondent workman has produced copies of the relevant papers which were in his possession. It further transpires that the petitioner Corporation has not adduced any evidence to support the allegations made against the respondent workman and therefore the Labour Court has rightly come to the conclusion that the petitioner Corporation has not proved allegations levelled against the respondent workman. Considering the ratio laid down by the Hon'ble Apex Court in the case of Janatha Bazar (supra) in paragraph nos. 6 & 8 has observed thus :
“6. As stated above, the learned Single Judge and the Division Bench in writ appeals confirmed the findings given by the Labour Court that charges against the workmen for breach of trust and misappropriation of funds entrusted to them for the value mentioned in the charge-sheet had been established. After giving the said findings, in our view, the Labour Court materially erred in setting aside the order passed by the management removing the workmen from service and reinstating them with 25% backwages. Once an act of misappropriation is proved, maybe for a small or large amount, there is no question of showing uncalled-for sympathy and reinstating the employees in service. Law on this point is well settled. (Re : Municipal Committee, Bahadurgarh v. Krishnan Behari.) In U.P.
SRTC v. Basudeo Chaudhary this Court set aside the judgment passed by the High Court in a case where a conductor serving with U.P. State Road Transport Corporation was removed from service on the ground that the alleged misconduct of the conductor was an attempt to cause loss of Rs.65 to the Corporation by issuing tickets to 23 passengers for a sum of Rs.2.35 but recovering @ Rs.5.35 per head and also by making entry in the waybill as having received the amount of Rs.2.35, which figure was subsequently altered to Rs.2.85. The Court held that it was not possible to say that the Corporation removing the conductor from service has imposed a punishment which is disproportionate to his misconduct. Similarly in Punjab Dairy Development Corpon. Ltd. v. Kala Singh this Court considered the case of a workman who was working as a Dairy Helper-cum-Cleaner for collecting milk from various centres and was charged for the misconduct that he inflated the quantum of milk supplies in the milk centres and also inflated the quality of fat contents where there were less fat contents. The Court held (at SCC pp.161-62, para 4) that in view of the proof of misconduct a necessary consequence will be that the management had lost confidence that the workman would truthfully and faithfully carry on his duties and consequently the Labour Court rightly declined to exercise the power under Section 11-A of the ID Act to grant relief with minor penalty.
7. xxx xxx xxx xxx
8. In case of proved misappropriation, in our view, there is no question of considering past record. It is the discretion of the employer to consider the same in appropriate cases, but the Labour Court cannot substitute the penalty imposed by the employer in such cases.”
12. In the instant case, the act of alleged misappropriation of the respondent workman has not been proved and the allegations having not been proved merely on preponderance or presumption the respondent workman cannot be visited with the charge of misappropriation resulting into the major punishment of dismissal. Hence, the ratio laid down by the Hon'ble Apex Court in the case of Janatha Bazar (supra) is not applicable in the present case.
13. At this juncture it would be appropriate to refer to the judgment of the Hon'ble Apex Court in the case of Harjinder Singh Vs. Punjab State Warehousing Corporation, reported in (2010) 3 SCC Pg. 192, wherein in paragraph No. 21 the Hon'ble Court has observed thus :
“21. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty-bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43- A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J. opined that :
'10. The concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State' (State of Mysore v. Workers of Gold Mines, AIR p. 928, para 10.)”.
14. Considering the ratio laid down by Apex Court in the case of Harjinder Singh (supra) the fact situation arising in the present case, it transpires that the petitioner Corporation is not able to produce any documentary evidence on record to bring the guilt against the respondent workman. It is an admitted position that the petitioner Corporation has not produced any papers relating to the inquiry conducted against the respondent workman. The Labour Court has rightly not accepted the allegation against the respondent workman, only because during the inquiry the respondent workman was found to be guilty. Attempt on the part of the petitioner Corporation to submit that the acquittal in the criminal case was not clean acquittal but the Criminal Court gave benefit of doubt does not take the case for the petitioner Corporation any further. The record establishes that the petitioner Corporation has failed to prove the allegations against the respondent workman and the finding arrived at by the Labour Court cannot be termed as perverse or legal.
This Court finds that there is no error much less any error apparent on the face of the record which requires interference by this Court in its extraordinary jurisdiction under Article 226 and/or 227 of the Constitution of India, the petition is devoid of any merit and the same deserves to be dismissed. Rule discharged with no order as to costs.
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(R.M. Chhaya, J.) M.M.BHATT