RAJABHAI R GADHAVI Vs. DIVISIONAL CONTROLLER

JUDGEMENT

(1.) Heard learned Advocate Mr. A.V. Nair for learned Advocate Mr. H.P. Dave for petitioner. Petitioner-Conductor has challenged award passed by Labour Court, Ahmedabad in Reference No. 752 of 2007 dated 31st July, 2009 Exh 10. Labour Court, Ahmedabad has dismissed the reference.

(2.) I have considered submissions made by learned advocate Mr. Nair for petitioner. I have also perused award passed by, Labour Court. Looking to the facts as emerging from record, as per charge-sheet issued to petitioner, it was alleged that while the petitioner was on duty on 3.11.2002 on route from Ahmedabad to Jhalod, his bus was checked near Kathlal Cross Roads wherein it was found that from one group of four passengers travelling from Ahmedabad to Balasinor, an amount of Rs. 150.00 was recovered by him from said group instead of Rs. 140.00 at the rate of Rs. 35 00 per ticket and tickets were not issued upto checking point and unpunched tickets were seized and an amount of Rs. 10.00 was refunded back to passengers. In connection with the said serious misconduct, he was served with charge-sheet on 4.12.2002 and departmental inquiry was conducted against him in accordance with the principles of natural justice and at the end of inquiry, misconduct was proved against him and therefore, petitioner was served with show-cause notice along with findings on 28.1.2004 and as the explanation given by petitioner to said show-cause notice f; was not found satisfactory, he was ordered to be dismissed by order dated 27.4.2004. Both departmental appeals preferred by petitioner were dismissed and, thereafter, dispute was raised by petitioner which was referred to Labour Court for adjudication wherein Labour Court rejected reference by passing impugned award which is under challenge in this petition before this Court.

(3.) Labour Court has considered statement of claim Exh. 4 and written statement filed by Corporation at Exh. 6. Documents were produced by Corporation vide list Exh. 7 and papers of departmental inquiry have been produced on record. It is necessary to note that before Labour Court, vide Exh. 8, purshis was filed by advocate for petitioner wherein advocate for petitioner has admitted legality and validity of departmental inquiry but raised contention in respect to findings which are perverse. In light of this purshis, whatever contentions raised by learned advocate Mr. Nair for petitioner before this Court challenging legality and validity of departmental inquiry and role of inquiry officer as prosecutor and Judge etc. cannot be entertained by this Court because before Labour Court, by filing purshis Exh.8, challenge as regards legality and validity of departmental inquiry was given up by petitioner and not challenged before Labour Court. The petitioner is not entitled to raise such contention for they first time before this Court. Thereafter, Labour Court has considered finding given by inquiry officer and also considered, reply given by petitioner against 'show cause notice and thereafter, Labour Court has examined the matter on the basis of decision which has been relied upon by petitioner's advocate before Labour Court. Labour Court has given detailed reasons in support of its conclusion. Labour Court has also considered that such misconduct of recovering fare and not to issue ticket being dishonesty and misappropriation of revenue of corporation by petitioner conductor and therefore, corporation has lost confidence in petitioner conductor, which is a serious misconduct. Labour Court has also considered default card where previously petitioner was punished by corporation. Therefore, considering all these facts, Labour Court has come to conclusion that this is not a case in which Labour Court can exercise discretionary powers in favour of petitioner who has lost confidence of corporation. Labour Court has also considered that looking to gravity of misconduct and default card of petitioner, punishment which has been imposed upon petitioner cannot be considered to be disproportionate or unjust looking to the serious misconduct which has been proved against the petitioner. Labour Court has considered decision of Apex Court in case of Karnataka State Road Transport Corporation v. B.S. Hullikutti, 2001 88 FLR 912, where following observations have been made by Apex Court: