1. The present petition is filed by one Shri Naresh Babulal Dave challenging order dated 19.09.2003 passed by the Industrial Court, Ahmedabad (Annexure “A”), final award dated 31.12.2003 (Annexure “B”) passed in Reference (IT) No.303 of 2001 and last but not the least, order of dismissal dated 26.05.1999 (Annexure “C”).
2. Heard learned Advocate Mr.Viral M.Pandya for the petitioner.
3. The facts of the case are set out in para No.2 onwards in petition memo. The same are reproduced for ready perusal:-
“2. The petitioner was appointed and joined the service of the respondent-Corporation as a Store Clerk and was posted to work as such in L.G. Hospital under the administration and control of the respondent-Corporation.
3. A chargesheet was issued to the petitioner on 8.2.1994 that he had purchased plaster of paris on behalf of the respondent-Corporation not from the approved contractors under the rate contract, but from the outsider, which came to be of lower quality; that he purchased the aforesaid plaster of paris in a huge quantity not needed by the respondent-Corporation; that by such purchase, the petitioner misconducted himself and has caused monetary damage to the respondent-Corporation by purchasing alleged quality of plaster of paris, and, that he has played with the life of the patients in the hospital. The matter was taken for departmental enquiry and under the report of the Enquiry Officer dated 25.6.1998, all the charges levelled against the petitioner were held to be proved. Final show cause notice was, therefore, given by the respondent-Corporation on 6.11.1998. A reply to the second show cause notice was given by the petitioner on 20.11.1998, on which a hearing was given to the petitioner and by order dated 26.5.1999 the petitioner was removed from service.”
3.1 As similar question, as is raised in the case of the petitioner, arose in other matters, that fact is mentioned in para-4 of the petition memo and thereafter, further relevant facts are set out in para-5, which reads as under:-
“5. In all the four cases, the issue as to whether the departmental enquiry was in accordance with law and as to whether it is necessary to hold enquiry afresh before the Industrial Court was decided on 19.9.2003 against the petitioner. It may be stated that, along with the petitioner's case, three other cases were tried together and, therefore, one common order was passed by the learned Judge of the Industrial Court on 19.9.2003 holding that, in all the four cases, the enquiry was in accordance with law and that appropriate opportunity was given to the delinquents in all four cases. It was also held that appropriate opportunity was given to the delinquents in all four cases in departmental enquiry and, therefore, the findings given by the Enquiry Officer were held to be in accordance with law. A copy of the order dated 19.9.2003 was communicated by the Secretary of the Industrial Court, on 26.9.2003. A copy of the order dated 19.9.2003 passed by the Industrial Court, Ahmedabad, is annexed hereto and marked as Annexure “A”.
3.2 The present petitioner along with other similarly situated persons approached this Court by filing Special Civil Application Nos.15525 of 2003, 15528 of 2003, 15532 of 2003 and 15534 of 2003, which came to be disposed of by this Court by judgment and order dated 04.11.2003 on the ground that, 'final award is yet to be made and therefore, the petitions are not maintainable'. The relevant part of that judgment and order reads as under:-
“Apparently, the impugned judgment and order is in respect of limited issue regarding validity of the disciplinary proceeding and the finding of guilt recorded against each workman. The final award is yet to be made. The final award as and when made, if adverse to the concerned workman, can be challenged on all available grounds including the findings recorded under the impugned judgment and order dated 19th September, 2003.”
3.3 The matter of the petitioner along with other similarly situated persons were considered by the Industrial Court in References (IT) No.303 2001 and other cognate matters and they were dismissed by judgment and order dated 21.02.2004 which was received by the petitioner on 23.03.2004, which is annexed at Annexure-B to the petition and the order of dismissal dated 26.05.1999 is produced at Annexure-C to the petition.
4. Learned Advocate Mr.Viral M.Pandya for the petitioner initially read order dated 26.05.1999 and thereafter, the part relevant to the case of the petitioner of order dated 19.09.2003. Thereafter, learned Advocate for the petitioner invited attention of the Court to the relevant paras of the said judgment, as the said judgment and order is passed in four References being Reference (IT) Nos.303 of 2001, 304 of 2001, 305 of 2001 and 306 of 2001, of which Reference (IT) No.304 of 2004 is pertaining to the present petitioner. Learned Advocate for the petitioner invited attention of the Court to paras-16, 22, 27 and 29 and final order- operative part.
5. On careful consideration of the said judgment and order, it is noticed that the learned Member of the Industrial Tribunal has taken all pains to consider not only the facts of the case in detail but also each and every contention raised before him and has dealt with them in detail.
6. Learned Advocate for the petitioner submitted that mainly the challenge to the order of dismissal and order of the Industrial Tribunal along with final order of Industrial Tribunal is on four grounds:-
(1) The petitioner is dismissed on the ground that 'plaster of paris', which was purchased by the petitioner was alleged to have been of not required quality. Learned Advocate for the petitioner submitted that the respondent- Corporation to bring home the said charge did not examine any expert.
(2) Learned Advocate for the petitioner next submitted that as the Presenting Officer was examined as a witness, the entire departmental proceedings stand vitiated, as a consequence, the report of the Inquiry Officer and all subsequent steps based thereon also stand vitiated and are required to be quashed and set aside.
(3) Learned Advocate for the petitioner next submitted that the petitioner was working with the respondent-Corporation only as 'Store Keeper', having no authority to place the order for particular quantity. In light of that, the allegation that he 'purchased' the goods (plaster of paris) is without any substance.
(4) Last but not the least, learned Advocate for the petitioner submitted that the present petition is required to be entertained atleast on the ground that penalty imposed is disproportionate to the guilt which is held to be proved against the petitioner.
7. In fact, learned Member of the Industrial Tribunal has taken care to consider all these aspects in detail. To start with, so far as establishing guilt about the inferior quality of plaster of paris is concerned, the learned Member of the Industrial Tribunal has recorded in para-27 that, 'the Corporation had examined Superintendent Dr.Nimesh Pandya, Full-time Processor–Orthopedic Surgeon Dr.Pankaj Divetiya and Dr.Manish Shah to bring home the guilt. Not only that, to counter evidences of the aforesaid witnesses, the petitioner himself examined Store Keeper of Shardaben Chimanlal Hospital (Ahmedabad Municipal Corporation) Shri Nitin Mehta, Shri Pravinbhai Pandya–Store Keeper of V.S.General Hospital (Ahmedabad Municipal Corporation) and one Shri C.M.Modi, who was officer In-charge of Central Medical Stores and the petitioner was allowed to cross-examine the witnesses at length'. Learned Member of the Industrial Tribunal has recorded that, 'the contents of the evidence of the aforesaid witnesses is referred to in detail by the Inquiry Officer and it is only after careful consideration of the evidence which came on record before the Inquiry Officer that the Inquiry Officer has recorded his findings'. In view of that the submission made by the learned Advocate for the petitioner is found without any substance and the same cannot be accepted.
7.1 Coming to the second contention that, 'Presenting Officer was examined as a witness which caused prejudice to the petitioner and vitiated the inquiry' is also dealt with by the learned Member of Industrial Tribunal in detail in para-18 at page No.62 (typed page 43 of the judgment and order under challenge). The learned Member of the Industrial Tribunal has recorded that, 'there is no provision which prohibits such a course of action being adopted'. Besides that, the learned Member of the Industrial Tribunal has recorded that, 'by examining the Presenting Officer as a witness has not changed the fact and situation of the case. By so examining, no prejudice is caused to the petitioner and therefore, the said submission /contention raised on behalf of the petitioner is rejected by the learned Member of the Industrial Tribunal'.
7.2 At this juncture, it will be appropriate to record that the learned Advocate Mr.Saurabh J.Mehta for the respondent-Corporation invited attention of the Court to the fact that no such contention was ever raised by the petitioner before the Inquiry Officer and therefore, this contention is required to be rejected on that short ground. The fact that this contention was raised before the learned Member of the Industrial Tribunal and the learned Member of the Industrial Tribunal has dealt with the same and this Court is in agreement with the learned Member of the Industrial Tribunal on the point, the contention is rejected.
7.3 Learned Advocate for the petitioner next submitted that the petitioner was not having the authority to place the order for a particular quantity. This particular part was never contended before the Inquiry Officer. Not only that, this point was not raised even before the Industrial Tribunal and therefore, as it involves disputed question of fact, this Court cannot go into the same. Therefore, this contention is rejected.
7.4 Coming to the last submission made by the learned Advocate for the petitioner that the punishment imposed is disproportionate, this aspect is considered in detail at the time of passing the final order, a copy of which is produced at Annexure-B. The learned Member of the Industrial Tribunal has taken care of the contention raised in this regard and has considered that the punishment awarded by the Corporation to the petitioner is not improper or unreasonable, taking into consideration the nature of the charge levelled against the petitioner and taking into consideration the discussion, while discussing Issue No.2. This Court finds no reason to interfere with the same.
8. In the result, the petition fails and the same is dismissed. Rule is discharged. No costs.
At the request of learned Advocate Mr.Viral M.Pandya, it is clarified that the Court has considered the submissions made by the learned Advocate in light of the facts of this particular case and dismissal of this petition will not prejudicially affect the petitioners of other petitions in raising all contentions which are available to them in their petitions.
*Shitole (Ravi R.Tripathi, J.)