AHMEDABAD MUNICIAPAL TRANSPOR TSERVICE Vs. CHANCHALBEN SHAMALBHAI PARMAR

JUDGEMENT

(1.) HEARD learned advocate Mr. H. S. Munshaw for the petitioner and learned advocate Mr. Hardik C. Raval for respondents.

(2.) IN the present petition, the petitioner has challenged the award passed by Labour Court, Ahmedabad in Reference No. 725 of 1995 dated 13. 1. 2006 whereby the Labour Court has partly allowed the reference and granted the continuity of service in favour of respondent workman and also directed to pay all retirement benefits and from date of dismissal till the date of retirement, 20% back wages was granted in favour of respondent workman.

(3.) THE matter is at admission stage. Learned advocate Mr. Munshaw submitted that the respondent herein was an employee of petitioner transport service and he is working as conductor, was on the duty on 21. 1. 1991 on a Bus bearing Route No. 152/1, in second shift, about 10. 10. p. m. , reached to Gantral Stand where driver and conductor both have taken up tea and meanwhile the driver of that bus has permitted one private person to drive the bus of AMTS and due to that, serious accident had occurred. The driver and conductor both have not informed the petitioner transport service about the said accident either orally or in writing. Not only that, according to petitioner transport service, when unauthorized person has driven the bus, at that occasion, both driver and conductor were on duty and, therefore, the misconduct which has been committed by the driver and the conductor has been considered / treated as a joined misconduct by both. It is not the case of petitioner transport service that when unauthorized person driven the bus, at that occasion the driver and conductor both were sitting in the bus. But, according to petitioner transport service, the driver has permitted the private person at that occasion the conductor was also on duty. Thereafter, the accident occurred but conductor has not informed to the petitioner transport service either orally or by giving written communication. Therefore, aforesaid misconduct is considered to be a negligence as per Standing Order, Section 25 (H) and for that, charge-sheet was served to the respondent on 20. 2. 1991 vide Exh. 14. The reply was submitted by respondent vide Exh. 15 dated 2. 8. 1991. Thereafter, departmental inquiry was initiated against the respondent and the Inquiry Officer gave his finding vide Exh. 16. Before the Labour Court, the respondent has not challenged the legality and validity of departmental inquiry but has challenged the finding given by the Inquiry Officer. According to transport service, there was a damage to the bus to the tune of more than Rs. 2 lacs. The respondent was examined before the Labour Court vide Exh. 11. According to his evidence, one Karansinh, who was unauthorized person, was entered into the bus and driven the bus without any permission from the conductor. Thereafter, bus met with an accident and unauthorized person has left the place of accident. The only allegation against the respondent is that he has not informed at the relevant point of time immediately to the transport service by telephonic message or by written communication and, therefore, he was considered to be a co-delinquent of misconduct committed by the driver. The driver is also dismissed from service by the transport service. The respondent was dismissed from service on 26. 3. 1992. The industrial dispute was raised by respondent which referred for adjudication in the year 1995. Vide Exh. 8 the respondent has submitted specific purshis before the Labour Court that respondent is challenging only dis-proportionate punishment looking to the gravity of misconduct and relying upon the aforesaid purshis, the Labour Court has framed the issue in Para. 5, whether the finding given by Inquiry Officer is baseless and perverse or not and whether the punishment imposed by the department is dis-proportionate or not. These two issues have been decided by the Labour Court after considering the evidence on record. The Labour Court has considered the charge sheet dated 20. 2. 1991; reply dated 2. 8. 1991 and finding vide Exh. 16 and ultimately, details of accident narrated in Para. 6 by the Labour Court. The explanation has been given by the respondent that in the winter season as there was too much cold season at night and due to that, respondent was not able to give a written communication or phone call to the transport service. Even at second day also, the respondent has not informed to the petitioner - transport service. The Labour Court has considered that whether conductor is liable for the accident and unauthorized driving by Mr. Karansinh or not and whether the bus was in charge of driver or conductor and who is responsible for misconduct. The bus must be in charge of driver and not in charge of conductor. If driver illegally wants to drive the vehicle even ignoring the direction of conductor, he can and the conductor cannot stop the driver because the bus is in charge of driver. Therefore, the driver should not allow to unauthorized person. When driver has allowed to unauthorized person then conductor has no place to say no or he cannot object it because he was not in charge of the bus. According to logbook and log-sheet, the charge of the bus was handed over to the driver from the work-shop and it was not handed over to the conductor. The driver has to maintain the bus and custody of the bus is also with the driver. Even though the petitioner transport service has initiated inquiry against the present respondent, who was conductor at the relevant time. No doubt, as an employee he was duty bound to inform the transport service about the accident. For that part, he was negligent and accordingly, that charge was proved against the present respondent. For that, the Labour Court has also believed by giving a reasoning that charge of negligence is proved against the respondent but question was examined by Labour Court that whether looking to the gravity of misconduct of remaining negligence and not to inform immediately or subsequently to the transport service about the accident, punishment of dismissal is justified or not. On 10. 8. 1999, when workman was examined vide Exh. 11, at that occasion, he was aged about 52 years and thereafter, the matter was decided on 13. 1. 2006. Meanwhile, the respondent reached the age of superannuation and therefore, the Labour Court has not granted reinstatement in favour of respondent workman. The Labour Court has come to conclusion while exercising the power under Section-11a of the I. D. Act,1947 which gives power to Labour Court while adjudicating the dispute where the dismissal is challenged for adjudication and in the course of adjudication proceedings, the Labour Court is satisfied that the order of discharge or dismissal was not justified. The Labour Court may by its award set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions if any as it thinks fit or give such other relief to the workman including the award of any lessor punishment in lieu of discharge or dismissal as the circumstances of the case may require. Therefore, the Labour Court is having very wide power and jurisdiction to pass appropriate orders as it thinks fit looking to the circumstances of the case and also to consider to impose any lessor punishment in lieu of discharge or dismissal as the circumstances of the case may require. The Labour Court has exercised this power while examining the legality and validity of dismissal order dated 26. 3. 1992 vide Exh. 20. The Labour Court has considered that looking to the negligence of not informing to the transport service about the accident and that the bus was driven by unauthorized person, the punishment of dismissal is unjustified. The transport service has not proved gainful employment of the respondent workman by leading proper evidence. The evidence of the workman was that he remained unemployed during the interim period. According to evidence of the respondent workman vide Exh. 11, as he was dismissed by transport service, the study of his children has been left without further progress. Therefore, according to conclusion of the Labour Court that present respondent is not connected in any manner with the main misconduct which was committed by the driver of the bus, who had permitted to unauthorized person to drive the bus, is a correct finding in respect to the issue which has been examined by the Labour Court. If the respondent is not connected in any manner with the misconduct committed by the driver then, only considering the negligence on the part of the conductor in not informing the transport service by telephonic message or written communication, the punishment of dismissal is apparently harsh and unjustified in light of the fact that conductor was appointed in the year 1975. The Labour Court has not granted the full relief to the respondent workman. The date of dismissal is 26. 3. 1992 and vide Exh. 11 when evidence was recorded of the respondent workman on 10. 8. 1999, at that time, respondent was aged about 52 years old. Considering the normal age of retirement as 58 years, the respondent may be retired in the year 2005. He died during the pending reference proceedings on 13. 11. 2003. Therefore, the Labour Court has not granted the reinstatement in favour of respondent workman and now only question has been considered by the Labour Court that from date of dismissal " 26. 3. 1992 to 13. 11. 2003 when gainful employment is not proved by transport service, how much amount of back wages the respondent is entitled. Considering the fact that negligence is proved against the respondent and also considering the fact that in all interim period is of 11 years, therefore, the Labour Court has denied 80% back wages for the interim period to the respondent workman and only granted 20% back wages of interim period. Learned advocate Mr. Munshaw raised objection that the Labour Court should not have to grant the retirement benefits to the respondent workman. The direction which has been issued by the Labour Court granting the retirement benefits to the respondent workman or legal representatives is merely a normal and consequential direction. Even without issuing such direction, a moment dismissal order is set aside by the Labour Court the transport service must have to pay all the retirement benefits. The petitioner transport service is the under legal obligation, if the dismissal is set aside then in that case, the consequential benefits must have to be paid to the concerned employee. Therefore, merely some additional direction is issued by the Labour Court, which is not necessary, that part cannot be taken into account by the transport service being an additional benefits which has been awarded by the Labour Court.