J.M. Panchal, J.
1. In this appeal which is filed under Clause 15 of the Letters Patent, the appellant has challenged legality of judgment dated July 13, 2001 rendered by the learned single Judge in Special Civil Application No. 6536 of 1988 by which the award dated October 13, 1987 passed by the Industrial Tribunal, Rajkot in Reference (IT) No. 539/84 substituting punishment of withholding of five increments with cumulative effect imposed by the Disciplinary Authority to withholding of two increments without any cumulative effect, is upheld.
2. The respondent was employed as Conductor. On May 20, 1982, he was on duty on Kodinar-Veraval Route. When the bus reached Kodinar, it was checked by D.T.O. Shri Gohil and his men. During check, some irregularities such as non-issuance of tickets etc. were found. Therefore, the respondent was served with a chargesheet dated June 22, 1982 and a departmental inquiry was conducted against him. At the conclusion of inquiry, the Disciplinary Authority vide order dated February 19, 1983 concluded that there was no mala fide intention on the part of the respondent, nor the respondent had made any attempt to misappropriate the funds belonging to the appellant Corporation. However the Disciplinary Authority held that negligence in performance of duty was established. Therefore, the Disciplinary Authority imposed punishment of withholding of five increments with cumulative effect. The order imposing punishment was challenged by the appellant before the Departmental Appellate Authority. The appellant was dismissed by the appellate authority. Therefore, the respondent raised dispute regarding legality of order imposing punishment of withholding of five increments with cumulative effect. On failure of conciliation proceedings, the dispute was referred to Industrial Tribunal, Rajkot for adjudication where it was numbered as Reference (IT) No. 539/84. A Statement of claim was submitted by the respondent to which the appellant had filed written statement. Initially, the respondent had challenged legality of the departmental inquiry conducted against him, but when the matter reached for hearing before the Court, his learned counsel submitted a Purshis at Exhibit 25 and gave up challenge to the legality of departmental inquiry. Further no oral evidence was led on behalf of the respondent. It appears that because of understanding between the parties, the learned counsel for the appellant also submitted a Purshis at Exhibit 26 and declared before the Tribunal that no oral evidence was to be adduced on behalf of the appellant. On appreciation of documents produced during the course of departmental inquiry, the Labour Court held that the charge of negligence in duty was established against the respondent. Thereafter the Tribunal proceeded to consider the question whether the punishment imposed on the respondent was harsh or not. Having regard to the circumstances of the case, the Tribunal deduced that the punishment of withholding of five increments with cumulative effective imposed on the respondent was not only harsh but was also disproportionate to the charge established and that interest of justice would be served, if the punishment was substituted to that of withholding of two increments without any cumulative effect. In view of said conclusion, the Industrial Tribunal, by award dated October 13, 1987, substituted punishment imposed on the respondent by the Disciplinary Authority by punishment of withholding of two increments without cumulative effect. Feeling aggrieved by the said award, the appellant preferred Special Civil Application No. 6536 of 1988. The learned single Judge has dismissed the same by judgment dated July 13, 2001, giving rise to the present appeal.
3. The learned counsel for the appellant submitted that as the charge of collecting fare from the passengers and not issuing tickets to them was proved, lenient view taken by the Disciplinary Authority of imposing punishment of withholding of five increments with cumulative effect should not have been interfered with by the Labour Court in exercise of powers under Section 11-A of the Industrial Disputes Act, and therefore, the petition ought to have accepted by the learned single Judge. What was claimed was that the punishment of withholding of five increments with cumulative effect was imposed in view of serious misconduct on the part of the respondent and the Labour Court having illegally exercised discretion under Section 11-A of the Industrial Disputes Act, the petition filed by the appellant ought to have been allowed by the learned single Judge. It was stressed that the view taken by the learned single Judge is not in consonance with the principles laid down by the Supreme Court in several reported decisions on the point, and therefore, the appeal should be entertained. In support of his submissions, the learned counsel placed reliance on the decisions in (1) State of Punjab and Ors. v. Ramsing, Ex-Constable, AIR 1992 SC 2188 : 1992 (4) SCC 54 : 1993-I-LLJ-218; (2) Karnataka State Road Transport Corporation v. B. S. Hullikatti, 2001 (2) SCC 574 : 2001-I-LLJ-725; and (3) Janatha Bazaar v. Secretary, Sahakari Noukarara Sangh, AIR 2000 SC 3129 : 2000 (7) SCC 517 : 2000- II-LLJ-1895.
4. We have heard the learned counsel for the appellant and taken into consideration documents forming part of the petition. From the record of the case, it is evident that though the charge against the respondent was that he had misappropriated the funds of the appellant Corporation, the Disciplinary Authority was of the opinion that there was no mala fide intention on part of the respondent and that no attempt was made by him to misappropriate the funds belonging to the appellant Corporation. According to the Disciplinary Authority, there was negligence on part of the respondent in performance of his duty, and therefore, having regard to the circumstances of the case, the Disciplinary Authority was of the view that punishment of withholding of five increments with cumulative effect should be imposed on him. We may state that the case of the respondent before the Disciplinary Authority was that on date of incident, he was physically not well and though his wife was ill, he was not permitted to attend her and was asked to perform duty as a result of which, some lapses had taken place in discharge of duties. There is no manner of doubt that before the Labour Court, there was consensus between two learned counsel appearing for the parties, and therefore, the learned counsel for the respondent had given up challenge to the legality of Departmental inquiry, and no evidence was led on behalf of the respondent in support of his claim before the Labour Court, whereas the learned counsel for the appellant Corporation had submitted a Purshis at Exhibit 26 declaring its intention that no oral evidence was to be led in support of what was pleaded in the written statement. Having regard to facts and circumstances of the case and in view of the reasons which are indicated in Para 8 of the Award of the Industrial Tribunal, the Tribunal was of the opinion that the punishment of withholding of five increments with cumulative effect imposed on the respondent, was harsh as well as disproportionate. Under the circumstances, the Tribunal exercised powers under Section 11-A of the Act and substituted punishment to that of withholding of two increments without any future effect. The learned single Judge has taken into consideration all the relevant circumstances and held that no just and proper ground was made out by the appellant to interfere with the order of the Tribunal after lapse of period of 19 years from the date of incident which took place in the year 1982. In our view, having regard to the finding recorded by the Disciplinary Authority, the principle laid down by the Supreme Court in the decisions which are cited by the learned counsel for the appellant are not applicable to the facts of the present case, and therefore, we have not discussed those decisions in detail. On overall view of the matter, we are satisfied that the learned single Judge has not committed any error in upholding the award passed by the Industrial Tribunal so as to warrant our interference in the present appeal. Net result of the above discussion is that we do not find any substance in the appeal and the appeal is liable to be dismissed.
5. For the foregoing reasons, the appeal fails and is summarily dismissed.