Gujarat High Court Case Information System Print SCA/4011/2010 8/ 14 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4011 of 2010 [ENTITY] - Petitioner(s) Versus [ENTITY] - Respondent(s) Appearance : MR [ENTITY] for Petitioner(s) : 1, None for Respondent(s) : 1, CORAM : HONOURABLE MR.JUSTICE [ENTITY] Date : 01/04/2010 ORAL ORDER
Heard learned Advocate Mr. [ENTITY] for petitioner. Petitioner has challenged award passed by Labour Court, Amreli in [CASE NUMBER] decided on 17th January, 2009 wherein Labour Court has rejected reference.
Learned Advocate Mr.[ENTITY] for petitioner has raised contention that petitioner was appointed as conductor on 22nd November, 1993. He submitted that on 16th January, 1995, six tickets of Rs.48.00 were mistakenly taken out from bunch and immediately, having realized said mistake, same was put back in same bunch without punching the same. On very same day, checking squad had come. However, on explaining what has happened and confirming that the tickets were not punched but kept back, said answer was considered as satisfactory and no action was taken. Same six tickets remained in bunch over night and on the next day morning, on return journey, again checking squad had come and at that time, they did not accept same explanation which was given on a day before. Since return journey was from Ahmedabad to Savarkundla and bus has just reached Bavla, said six tickets were still remaining unutilized. Petitioner also explained situation that he had already explained to the squad who checked last evening and they were satisfied, even though checking squad people not accepted explanation given by petitioner conductor and started procedure to register default and thereafter petitioner was served with charge sheet and after completion of inquiry, petitioner was dismissed from service on 1st December, 1995. Learned Advocate Mr. [ENTITY] submited that before labour court, dispute was raised against dismissal which was referred to for adjudication and statement of claim was filed by workman and written statement was filed by ST Corporation vide Exh.11 and total 12 documents produced on record. Workman was examined vide Exh. 8. Workman has filed purshis vide Exh. 43 admitting legality, validity and propriety of departmental inquiry and prayer was made before labour court to grant benefit under [SECTION] of [ACT]. Thereafter, vide Exh. 47, oral evidence of petitioner workman was closed and vide Exh. 48, corporation has produced default card of workman and thereafter, issues have been framed by labour court in paragraph 6 and reasons are given vide paragraph 7 onward by labour court. He submitted that Labour Court has committed gross error in not interfering with punishment which is found to be apparently disproportionate while exercising powers under [SECTION] of [ACT] of purshis Exh. 43, labour court has not examined legality and validity of inquiry and also not examined question of finding whether it is legal and valid or not because purshis Exh.43 suggests that finding of guilt has been accepted by petitioner and, therefore, only question to be considered by labour court was whether looking to gravity of misconduct punishment of dismissal is disproportionate or not. After considering submissions made by both learned Advocates and also after considering explanation given by workman and also considering default card within the span of service of fifteen months, in all, six misconducts were committed by workman and, therefore, labour court has relied upon decision of this court in case of [PRECEDENT] where it is held that whatever amount is involved in misappropriation case, it is not much relevant but it should have tobe considered serious misconduct committed by employee. If such misconduct of dishonesty and misappropriation is proved, then, one is enough for dismissal. In such cases, any interference is amounting to misplaced sympathy. Second decision which has been considered by labour court is [PRECEDENT] in case of [PRECEDENT] wherein it was held by this court that in case of misappropriation of any amount, amount involved is not of much relevance but if misconduct of dishonesty and misappropriation is proved, it has to be considered as serious misconduct and such employee should not be given encouragement to commit in future such misconduct and in such case, punishment of dismissal cannot be considered to be harsh and disproportionate and, therefore, no interference has been made by labour court under [SECTION] of [ACT]. Labour Court is having discretionary power to interfere with punishment in case if labour court is satisfied that looking to gravity of misconduct and past record, punishment of dismissal is harsh or not but if labour court is satisfied that looking to misconduct committed by workman found to be proved being serious misconduct, then, no discretionary power can be exercised by labour court under [SECTION] of [ACT]. This aspect has been recently examined by this court on 9.3.2010 in [CASE NUMBER] in case of [PRECEDENT]. Relevant discussion made by this Court from page 4 to page 7 and then from page 8 to page 11 in said judgment is reproduced as under:
The reasoning have been given by Labour Court in Para 10 after considering submissions made by both learned advocates. The Labour Court has appreciated allegations made against workman, where, amount has been misappropriated by workman not issuing tickets to two passengers as well as not giving complete luggage ticket though amount of passenger fare and luggage ticket comes to Rs.246/-, but, only 144/- was recovered with understanding to recover subsequently. The tickets which were not sold even though it has been shown in way bill as if that tickets were sold to passengers. The legality and validity of departmental inquiry was not challenged but question of finding has been challenged which has been examined by Labour Court while considering allegations made against workman as well as also considering statement made by certain passengers those who have been obtained by checking staff and also keeping in mind the fact that in departmental inquiry though reporter was examined in presence of workman but he was not cross-examined by workman. The Labour Court has considered statement of passenger of [ENTITY] which bares signature of workman. The conductor has made an endorsement on the statement of passenger. The statement of passenger was also recorded by checking staff, where, such defence about luggage ticket not taken that weight of luggage has been wrongly disclosed by passenger, therefore, such defence has been raised afterthought by workman. One another passenger [ENTITY]'s statement which was obtained by checking staff also bares signature of workman without any objection and there is no explanation given by workman that out of 33 passengers, why these aforesaid passengers were found without tickets and why entry has been made in way bill which was found to be incorrect on record. It is also considered by Labour Court that after receiving chargesheet by workman, no reply was submitted by workman. The statement of reporter Shri [ENTITY] was taken in presence of workman before inquiry officer and one employee [ENTITY] was also remained present, but, no cross-examination has been made by workman and no reply was given to show-cause notice. Therefore, Labour Court has come to conclusion that on the basis of evidence recorded before inquiry officer and in absence of reply of chargesheet and show-cause notice and not cross-examined reporter and statement of passenger obtained by checking staff endorsed by workman without any objection, on that basis, finding which has been given by inquiry officer cannot consider to be baseless or perverse and vitiated for any other reason. Therefore, Labour Court has come to conclusion that finding given by inquiry officer is correct and valid. Thereafter, Labour Court has examined question of penalty whether it is proportionate or disproportionate looking to misconduct which is found to be proved against workman. The Labour Court has also considered the post of conductor being a post of trust which has been breached by conductor while recovering the amount of fare not issued tickets to passengers. Such dishonest conductor cannot be reinstated in service, because, it is a post of confidence. The Labour Court has considered three decisions; [PRECEDENT], [PRECEDENT] and Uttaranchal Transport Corporation v. Sanjaykumar Notiyal reported in 2008 LLR
673. The Labour Court has also considered question of penalty while exercising the powers under [SECTION] of the [ACT] and come to conclusion that looking to finding given by inquiry officer where charge of dishonesty has been proved and on that basis, dismissal order is passed which cannot consider to be harsh or unjust looking to gravity of misconduct, therefore, no interference has been made by Labour Court in favour of workman.
Recently, Apex Court has considered a case of bus conductor found to be carrying passengers without tickets and inquiry held to be fair, the Apex Court has come to conclusion that in such cases of dishonesty, where collecting fare and not issuing tickets to passengers, punishment of dismissal is found to be proper which cannot be interfered by Labour Court. The relevant discussion is made by Apex Court in case of [PRECEDENT]. The relevant is Para 11 which is quoted as under :
The question with regard to imposition of appropriate punishment upon a conductor of a bus belonging to a corporation constituted under the [ACT] came up for consideration before this Court in Karnataka State Road Transport Corporation vs. B.S. [ENTITY] [(2001) 2 SCC 574], wherein it was held:
On the facts as found by the Labour Court and the High Court, it is evident that there was a short-charging of the fare by the respondent from as many as 35 passengers. We are informed that the respondent had been in service as a Conductor for nearly 22 years. It is difficult to believe that he did not know what was the correct fare which was to be charged. Furthermore, the appellant had during the disciplinary proceedings taken into account the fact that the respondent had been found guilty for as many as 36 times on different dates. Be that as it may, the principle of res ipsa loquitur, namely, the facts speak for themselves, is clearly applicable in the instant case. Charging 50 paise per ticket less from as many as 35 passengers could only be to get financial benefit by the Conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a Conductor because such action or inaction of his is bound to result in financial loss to the appellant-Corporation.
It is misplaced sympathy by the Labour Courts in such cases when on checking it is found that the Bus Conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower denomination knowing fully well the correct fare to be charged. It is the responsibility of the Bus Conductors to collect the correct fare from the passengers and deposit the same with the Company. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare."
A three judge Bench of this Court in [PRECEDENT], reiterated the said principle, stating:
This Court in Karnataka SRTC v. B.S. [ENTITY] has held that in such cases where the bus conductors carry passengers without ticket or issue tickets at a less rate than the proper rate, the said acts would inter alia amount to either being a case of dishonesty or of gross negligence and such conductors were not fit to be retained in service because such inaction or action on the part of the conductors results in financial loss to the Road Transport Corporation. This Court was firmly of the opinion that in cases like the present, orders of dismissal should not be set aside. 5. Furthermore, we agree with the observations of the Single Judge in the present case that the Labour Court was not justified in interfering with the punishment of dismissal. Though under [SECTION] the Labour Court has jurisdiction and powers to interfere with the quantum of punishment, however the discretion has to be used judiciously. When the main duty or function of the conductor is to issue tickets and collect fare and then deposit the same with the Road Transport Corporation and when a conductor fails to do so, then it will be misplaced sympathy to order his reinstatement instead of dismissal."
Recently in [PRECEDENT], [ENTITY] (supra) has been followed.
Recently, in case of [PRECEDENT], Division Bench of Madras High Court considered question of proportionality of punishment. Respondent conductor of bus had issued tickets to all passengers but charged for failure to enter two tickets in invoice. It was stated by the delinquent that due to diminishing light in bus, at time of issuing tickets, he could not make said two tickets. Relevant discussion made by Division Bench of Madras High Court in para 11, 13 and 14 of said judgment is reproduced as under:
Learned counsel for the appellant mainly contended that while the Industrial Tribunal, Coimbatore, passed the order, dated 09.11.1992 in [CASE NUMBER], setting aside the order passed by the appellant and directed the appellant to reinstate the first respondent without backwages, on that ground that the punishment imposed was disproportionate, the Industrial Tribunal, Chennai in [CASE NUMBER], dated 29.05.1991, while dismissing the Petition filed by the appellant, held that the first charge framed against the first respondent by the appellant, that he had failed to enter the issuance of two tickets for the value one for Rs.1.25/- and another for Re.1.00/- in the invoice, has been proved and held that the same could not be construed as serious misconduct, warranting dismissal of the employee from service and in the said order, in paragraph number 4, the Tribunal expressed its view that the appellant could have imposed a lesser punishment like suspension or fine. While answering for point number 2, whether the punishment is excessive against the first respondent, the Tribunal has given its finding in favour of the first respondent, holding that the punishment of dismissal is unwarranted, as disproportionate and that the punishment has been disapproved by the Tribunal. Therefore, according to the learned counsel for the appellant, directing the appellant to pay full back wages from the date of dismissal is contrary to law and not sustainable. In support of his contention, the learned counsel for the appellant cited the following decisions of the Hon'ble Apex Court :
1. [PRECEDENT]
2. [PRECEDENT]
12. xxx
13. In the decision, [PRECEDENT] cited by the learned counsel for the appellant, the Hon'ble Apex Court has held that the order of termination of service passed against a conductor could be justified, for not issuing tickets to 20 passengers, though fare was collected from them and entries were not made in the way bill for 23 passengers out of 48, holding that the said illegality committed by the conductor cannot be legalized. The Hon'ble Supreme Court in the decision referred supra has further ruled as follows :
"7 The material on record also shows that the checking staff with a view to regularise the entries and regularising the travel of the passengers had directed issuance of tickets to those 20 passengers to whom respondent 1 had not issued tickets. This is evident from the fact that the Tribunal had categorically noted that 20 passengers were issued tickets by the checking staff and respondent 1 was directed to make entries in the way bill. Issuance of tickets on the basis of the instructions of the checking staff cannot legalise the illegality committed by respondent 1 employee "
14. In the decision, [PRECEDENT], the Hon'ble Supreme Court has held that there is no place for generosity or misplaced sympathy on the part of the judicial forums, while interfering with quantum of punishment. In that case, the conductor had not even issued tickets to 28 passengers, who were travelling in a bus belonging to Uttar Pradesh State Road Transport Corporation, though he collected the fare from the passengers.
Therefore, in view of observations by apex court in decisions referred to above and also in view of decision of Division Bench of Madras High Court referred to above and also considering facts of present case where allegation made against petitioner workman to re-issue six tickets of denomination of Rs.48.00 has been proved in departmental inquiry, finding has been recorded by inquiry officer against petitioner workman and workman conductor has accepted legality and validity of departmental inquiry vide Exh. 43 purshis before labour court and also accepted finding recorded by inquiry officer wherein charge of re-issuance of tickets is found tob e proved which is relating to dishonesty and misappropriation of fund of ST Corporation, the only question which was required to be considered by labour court in view of prayer made by workman to exercise power under [SECTION] of [ACT], was in light of such fact and finding recorded by inquiry officer against workman, whether charge of re-issuance of tickets found tob e proved, punishment of dismissal can be interfered by labour court in exercise of powers under [SECTION] of [ACT] or not. For not exercising powers under [SECTION] of [ACT], labour court has given reasons. Post of conductor held by petitioner is a post of confidence having responsibility to recover fare from passengers and same is required to be deposited with ST Corporation, so, moment revenue of ST Corporation is misappropriated by conductor, then, it is very difficult for ST Corporation to retain such conductor in service because he is losing confidence and also causing damage to revenue of ST Corporation. Labour Court has given detailed reasons relying upon two decisions of this court as referred to above and has also come to conclusion that the punishment of dismissal in such case of misappropriation of finds of corporation cannot be considered to be harsh, unjust or disproportionate. Therefore, labour court has not interfered with such punishment of dismissal while exercising powers under [SECTION] of [ACT], therefore, according to my opinion, labour court has not committed any error in not exercising powers under [SECTION] of [ACT]. Labour Court has passed reasoned order with proper application of mind after considering facts of case, therefore, contentions which are raised by learned Advocate Mr.[ENTITY] cannot be accepted in light of fact finding recorded by inquiry officer which has been accepted by workman vide purshis Exh. 43, therefore, no interference is required by this court in exercise of powers under [SECTION] of [ACT] since finding recorded by labour court are not perverse or contrary to evidence on record. Hence, there is no substance in this petition and same is required to be dismissed.
In result, for reasons recorded above, this petition is dismissed.
(H.K. Rathod,J.) [ENTITY]