SCA/6083/1991 of G S R T C Vs JIMA KALA DANGAR on 28 November 2001

1. Special Civil Application No. 6083 of 1991 MR PRANAV G DESAI for Petitioner No. 1 NOTICE SERVED for Respondent No. 1

-------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH

Date of decision: 28/11/2001

ORAL JUDGEMENT

In this petition under Article 227 of the Constitution, the Gujarat State Road Transport Corporation has challenged the judgment and award dated 2.1.1991 passed by the Labour Court, Rajkot in Reference (LCR) No. 96 of 1989 by which the Labour Court set aside the dismissal order dated 29.4.1988 and directed the Corporation to reinstate the respondent in service on the original post of conductor with 50% backwages from the date of dismissal till the date of reinstatement.

2. The respondent had put in about 16 years of service as a conductor when, on 3.8.1986, the respondent was serving as a conductor and the checking party found that the respondent had not issued tickets to certain passengers in the bus. The defence of the respondent was that after the bus left the regular bus-stop of Kevasrs, there was a request stop where five passengers boarded and before he could issue tickets to them, the checking party came. On the basis of the said charge, the Corporation dismissed the respondent from service by order dated 29.4.1988. The respondent raised an industrial dispute and the Labour Court held that though the inquiry was not illegal, the penalty of dismissal was disproportionate and unduly harsh as the respondent had put in more than 16 years of service and at the highest the workman was negligent in not issuing tickets to the passengers who had boarded from Kevadra which was a very short distance from the place where the checking party intercepted the bus. The Labour Court, therefore, passed an award for reinstatement with 50% backwages. The Corporation challenged the said award in this petition which was filed in the year 1991.

3. Initially, this Court granted ad-interim stay of the award in so far as the backwages were concerned. However, subsequently by order dated 14.10.1992 in Civil Application No. 556 of 1992 the Court permitted the respondent to withdraw an amount of Rs.7500/-.

4. Heard Mr Pranav G Desai, learned counsel for the petitioner-Corporation. Though served, none appears for the respondent.

5. At the hearing of the petition, the learned counsel for the petitioner-Corporation submitted that when the Labour Court's attention was drawn to ten defaults committed by the respondent in the past, the penalty of dismissal was not disproportionate or unduly harsh.

5. The Labour Court has considered the fact that earlier there were ten defaults attributed to the respondent in the past, but the Labour Court has rightly given a finding of fact that the workman had not issued tickets to the passengers who had boarded from a very short distance from the place where the checking party had intercepted the bus and that at the most there was negligence on the part of the respondent in discharging his duties. In view of the said finding, no fault can be found with the award of the Labour Court in holding that the penalty of dismissal was unduly harsh and disproportionate. At the same time, there is some justification in the contention of the learned counsel for the petitioner that the respondent ought not to have been awarded 50% backwages once the Labour Court has held that the misconduct alleged against the respondent was proved especially when the respondent did not remain present at the time of inquiry nor did he produce any evidence in support of his subsequent case that he did not attend the inquiry because of his illness. In the facts and circumstances of the case, it appears to the Court that the penalty of backwages to the respondent, except the amount of Rs.7500/- already permitted to be withdrawn by the respondent, would be sufficient penalty for the misconduct alleged and proved against the respondent.

7. In view of the above discussion, while the petitioner-Corporation's challenge to the direction given by the Labour Court for reinstatement of the respondent-workman is negatived, the direction given by the Labour Court for payment of 50% backwages to the respondent is modified to the effect that the amount of Rs.7500/- already paid by the petitioner-Corporation to the respondent shall be treated as the amount of backwages payable to the respondent and the rest of the amount of backwages for the period from the date of dismissal till the date of reinstatement shall be treated as penalty imposed on the respondent for the misconduct in question. It is, however, clarified that the respondent shall be entitled to get continuity of service from the date of dismissal till the date of reinstatement and the respondent shall be entitled to get all other benefits on that basis except the arrears of salary in excess of the sum of Rs.7500/- for the intervening period. The award of the Labour Court shall stand modified accordingly.

8. Rule is made absolute to the aforesaid extent only with no order as to costs.

�����(M.S. Shah, J.)

sundar/-