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GUJARAT STATE ROAD TRANSPORT CORPORATION V/S PREMGAR KASHIGAR, decided on Tuesday, April 4, 2017.
[ In the High Court of Gujarat at Ahmedabad, Special Civil Application No. 3229 of 2007. ] 04/04/2017
Judge(s) : SONIA GOKANI
Advocate(s) : Falguni D. Patel. Tushar L. Sheth.
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  "2017 (2) LLJ 643"  ==   "2017 (3) CLR 158"  ==   ""  







    Oral:1. Petitioner Gujarat State Road Transport Corporation which is a statutory Corporation set up under the Road Transport Act 1950 is before this Court seeking to challenge the award passed in the Reference (IT) No.35 of 1998 dated 24.8.2006 by the Industrial Tribunal Rajkot in the following factual background.2. The respondent is an employee of the petitioner Corporation working as a Conductor in Amreli Division at Dhari Depo having Base NO.15098. The respondent according to the averments set out in the memo of petition was a habitual defaulter and is negligent in discharge of his duties and earlier on number of occasions charges were framed and he was found negligent. In the matter on hand Charge sheet No. 45 of 1989 dated 4.3.1989 has been served upon the respondent. It was alleged that on 26.1.1989 while he was on his duty on the route from Una to Mahuva the bus of the respondent was checked by the checking squad of the Corporation and it was found that respondent had not issued the tickets to five passengers of one group who were travelling from Dungar to Mota Asarna the respondent had also not issued tickets to other three passengers of one group who were travelling from Rajula to Mota Asrna. It is alleged that though he had collected fare in contravention of Rules 7A 11 12B and 27 of the Discipline and Appeal Rules for the Employees of Gujarat State Road Transport Corporation it is the case of the petitioner that due opportunity was granted and eventually punitive order was passed placing the respondent in his original basic payscale.3. Aggrieved respondent had moved the appellate authority by preferring First Appeal which was rejected and thereafter he also chose second appeal before the authority prescribed under the law. As the second appeal too was rejected the respondent preferred the Reference before the Industrial Tribunal which was resisted by the petitioner Corporation by preferring written statement and on adducing necessary documents after availing due opportunities to both the sides the Tribunal allowed the Reference. Aggrieved petitioner Corporation is before this Court raising various grounds in this petition and also seeking following reliefs:7. The petitioner has no other alternative efficacious remedy but to approach this Hon'ble Court by way of this petition under Articles 226 & 227 of the Constitution of India. On the facts and circumstances mentioned herein above the petitioner therefore prays to this Hon'ble Court that:(A) YOUR LORDSHIP may be pleased to admit this petition.(B) YOUR LORDSHIP may be pleased to issue a writ of mandamus or any other appropriate writ order or direction to set aside the impugned order passed by Industrial Tribunal no.2 Rajkot in reference IT No.35/9 at Exh25 dated 24/8/06.(C) Pending admission and final disposal of this petition be pleased to stay the implementation execution and operation of the impugned order passed by Industrial Tribunal no.2 Rajkot in reference IT No.35/98 at Exh25 dated 24/8/06.(D) Be pleased to allow this petition with cost.(E) Your Lordship may be pleased to pass order and further relieves in favour of the petitioner which may be deemed fit just and proper in the facts and circumstances of the case4. This Court has heard learned advocate Ms.Falguni Patel for the petitioner and learned advocate Mr.Tushar Sheth for the respondent at length. Learned advocate Mr.Tushar Sheth has relied on the following authorities :1. M/s. Essen Deinki v. Rajiv Kumar 2002(8) SCC 400.2. Sayed Yakoob v. K.S. Radhakrishnan and others AIR 1964 SC 477.3. Gujarat State Road Transport Corporation Nadiad v. Maganlal Bhikhabhai Raval 2003(4) GLR 3575.5. In the case of M/s. Essen Deinki (supra) the Apex Court held that under Article 227 of the Constitution of India the jurisdiction to be exercised by the Court is revisional and not appellate. It is not vested with unlimited authority or prerogative to correct all orders or even wrong decisions made within the limits of the jurisdiction of the Courts below. Only errors of law patently on record warrant correction under Article 227 of the Constitution of India. It further held that unless the finding of fact is perverse or not based on material whatsoever and cause manifest injustice interference of the finding of fact is also not permissible under Article 227 of the Constitution of India.3. The observations above however find affirmance in the decision of this Court in Nibaran Chandra Bag v. Mahendra Nath Ghughu (AIR 1963 SC 1895). In Nibaran Chandra Bag v. Mahendra Nath Ghughu (supra) this Court has been rather categorical in recording that the jurisdiction so conferred is by no means appellate in nature for correcting errors in the decision of the subordinate Courts or Tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority. More recently in Mani Nariman Daruwala and Bharucha (deceased) through LRs & Ors. v. Phiroz N. Bhatena & Ors. (AIR 1991 SC 1494) this Court in the similar vein stated :In the exercise of this jurisdiction the High Court can set aside or ignore the findings of fact of an inferior Court or tribunal if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the Court or tribunal who has come or in other words it is a finding which was perverse in law. Except to the limited extent indicated above the High Court has no jurisdiction to interfere with the findings of fact.4. Needless to record that there is total unanimity of judicial precedents on the score that error must be that of law and patently on record committed by the inferior Tribunal so as to warrant intervention it ought not to act as a Court of appeal and there is no dissention or even a contra note being sounded at any point of time till date. Incidentally the illegality if there be any in an order of an inferior Tribunal it would however be a plain exercise of jurisdiction under the Article to correct the same as otherwise the law Courts would fail to subserve the needs of the society since illegality cannot even be countenanced under any circumstances.5. In this context reference may also be made to a still later decision of this Court in the case of Savita Chemicals (P) Ltd. v. Dyes & Chemical Workers' Union & Anr. (1999 (2) SCC 143) wherein this Court in paragraph 19 of the Report observed:Under Article 227 of the Constitution of India the High Court could not have set aside any finding reached by the lower authorities where two views were possible and unless those findings were found to be patently bad and suffering from clear errors of law.6. In the case of the Sayed Yakoob (supra) the Apex Court was considering the scope of writ of certiorari and has held that the same can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals where the orders are passed by inferior Courts or Tribunals without jurisdiction or is in excess of it or as a result of failure to exercise jurisdiction a writ of certiorari can be issued. A writ also can be issued wherein exercise of jurisdiction conferred on it the Court or Tribunal acts illegally or improperly as for instance it decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice.7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction or is in excess of it or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it the Court or Tribunal acts illegally or improperly as for instance it decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is however no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ but not an error of fact however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal a writ of certiorari can be issued if it is shown that in recording the said finding the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly if a finding of fact is based on no evidence that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases however we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque 19551 SCR 1104: (S) AIR 1955 SC 233) and Nagendra Nath v. Commr of Hills Division 1958 SCR 1240: (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh AIR 1960 SC 1168.8. It is of course not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision or sometimes in ignorance of it or may be even in disregard of it or is expressly founded on reasons which are wrong in law the said conclusion can be corrected by a writ of certiorari. In all these cases the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must on the whole be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record must always depend upon the facts and circumstances of each cases and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened.7. In the case of Gujarat State Road Transport Corporation Nadiad (supra) this Court has considered the aspect of quantum of punishment by holding that the Tribunal has power to act as authority to re appreciate the evidence led in departmental inquiry and to re appreciate the findings of the competent authority. The Tribunal has rightly re appreciated the findings given by the competent authority that no doubt the facts are undisputed before the authority but there was no bad intention on the part of the respondentworkman to recover the fare with purpose to misappropriate the amount of the petitioner Page Corporation. Here the gravity of the misconduct has been taken into account by the Tribunal and punishment has been also altered accordingly. Therefore in making alteration of punishment considering the finding recorded by the competent authority the Tribunal has not committed any error and there seems no jurisdictional error nor any procedural irregularity committed by the Tribunal.8. Bearing in mind the decisions discussed herein above a short question that needs to be addressed is as to whether there would be any requirement for the Court to interfere on account of award and judgment of the Tribunal.9. This Court noticed that the parties adduced both oral and documentary evidence for the incident of 26.1.1989 for which the petitioner Corporation had issued Charge sheet No.45 of 1989 on 4.3.1989.10. What was essentially alleged was that the respondent had not issued the tickets after collecting fare from a group of five passengers travelling from Dungar to Mota Asarna. Yet another Charge sheet filed against him is of not issuing tickets to another group who were travelling from Rajula to Mota Asrna and this was in contravention of Rule 7A 11 12B and 27 of the Discipline and Appeal Rules for the employees of Gujarat State Road Transport Corporation.11. The Tribunal dissected the facts and particularly noted the illhealth of the respondent. While he was on duty a bus needed to be stopped at the Primary Health Centre Dungar and he was treated by the Doctor and prescription also was written. It was severe headache and fever which had resulted into his miserable condition. The Medical Officer whose treatment had been taken also had given a certificate of his having examined and given the prescription for medicine. So as to ensure that passengers are not stranded and prestige of the institution on account of difficulties to the passengers is not jeopardized he pulled on with his physical incapacity and ailments. It was explained by the respondent that on account of his illhealth he was unable to issue the tickets. The passengers by way of deposition supported this and substantive documents form part of the Court's record. No cross-examination on this aspect was made of the respondent for and on behalf of the petitioner Corporation. In such facts and circumstances which had been established on record the Court deemed it fit not to allow harsh punishment which had been imposed by placing the respondent to his basic pay. Accordingly the Reference was partially allowed by interfering with the punishment accorded by the Management.12. As noted above this is not a case where this Court needs to exercise the writ of certiorari as no illegality is found in exercising its discretion. This Court in revisional jurisdiction finds no error which deserves any correction. It is unequivocally emerging on the record that the respondent was unwell on the date of incident and his explanation of nonissuance of the tickets to the group of five passengers and the group of three passengers is not completely condoned by the Tribunal but considering the mitigating circumstances it has reduced the harsh punishment.13. The Tribunal has rightly re appreciated the finding given by the competent authority by holding that no doubt the facts are undisputed before the authority but there was no bad intention on the part of the respondent workman to recover the fare with the purpose of misappropriation of the amount of the petitioner-Corporation. Therefore the alteration of punishment considering the finding recorded by the competent authority the Tribunal has not committed any error and there seems no jurisdictional error nor any procedural irregularity committed by the Tribunal. The past record of the workman also has no relevance unless the workman was given effective opportunity of hearing on that point the Tribunal has a right to ignore the past record. This Court in the case of Gujarat State Road Transport Corporation Nadiad (supra) held that the Tribunal can ignore such past record particularly when it is not a part of the departmental proceedings. It is permissible to consider the illegality and validity of the punishment by the Labour Authority. If the gravity of the misconduct is not justified and the Tribunal is satisfied to the effect that punishment is harsh and unjustified the Tribunal can certainly interfere and alter the punishment order.14. Here also in the given set of facts and circumstances the Tribunal deemed it fit to reduce the punishment and committed no error in such reduction basing the same on the mitigating circumstances clearly established on the record. The petition having no merit is dismissed. The interim relief if any stands vacated. Rule is discharged.Petition dismissed.