IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 17.11.2009 Coram The Honourable Mr.Justice K.K.SASIDHARAN W.PNo.14346 of 2000 K.Rajendran ...Petitioner -vs- 1. The Presiding Officer Labour Court Vellore. 2. The Management of Annai Satya Transport Corporation Ltd., (Now renamed as Tamil Nadu State Transport Corporation (Salem, Division-II) Ltd., by its Managing Director Bharathipuram, Dharmapuri. ...Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records relating to the award dated 2.2.1996 passed by the first respondent in I.D.No.368 of 1994, quash the same and consequently direct the second respondent to reinstate the petitioner with continuity of service, backwages and other other attendant benefits. For Petitioner : Mr.S.Krishnasamy for Mr.V.Ajoy Khose For respondents: R-1 Court Mr.C.Kanagaraj for R2 --------- ORDER This writ petition is directed against the award of the Labour Court dated 2 February, 1996 dismissing the Industrial Dispute raised by the petitioner. THE FACTS:- 2. The petitioner was employed as a Conductor in the second respondent Corporation. On 20 June, 1991 he was on duty in the bus https://hcservices.ecourts.gov.in/hcservices/ bearing registration No.TN-29-0153 plying between Dharmpuri and Hosur. The bus was checked by the checking officials employed by the second respondent at a place called Royakottai. There were twenty passengers in the bus. The checking officials physically verified the ticket with each of the passengers. Though eighteen passengers showed the tickets two of the passengers were not in a position to produce their tickets. The checking officials also found that a sum of Rs.62/- was in excess of the accounted collection. The petitioner was questioned and he gave a statement in writing admitting the guilt. The driver of the bus also counter signed the statement given by the petitioner. The passengers who were travelling without ticket were identified as one Raja and his wife. 3. A copy of the check report was also given to the petitioner. Subsequently a charge sheet was issued to the petitioner and since his explanation was found to be not satisfactory, departmental enquiry was ordered. The petitioner participated in the enquiry and ultimately the enquiry officer submitted his report wherein it was stated that the charge framed against the petitioner was proved. The enquiry report was considered by the second respondent and a second show cause notice was issued to him. The explanation submitted by the petitioner was not accepted by the second respondent and accordingly he was imposed with the punishment of dismissal. 4. The order of dismissal passed by the second respondent was raised as an industrial dispute and it was registered as I.D.No.368 of 1994 on the file of the Labour Court, Vellore. Before the Labour Court no oral evidence was adduced by the parties. On the side of the management Exs.M.1 to M.14 were marked. Though the petitioner initially raised a contention that the enquiry was not proper and there was violation of the principles of natural justice, the said contention was not pressed. The Labour Court found that the misconduct was clearly proved and accordingly the Industrial Dispute was dismissed. It is the said award which is challenged in this writ petition. SUBMISSIONS:- 5. The learned counsel for the petitioner contended that there was no finding that the enquiry was fair and proper and as such the very award is liable to be set aside. According to the learned counsel, the second respondent has not examined the passengers and as such the plea that the petitioner failed to issue tickets to those two passengers were not proved. Similarly there was no attempt made by the Labour Court to arrive at a conclusion that the punishment was proportionate to the charges framed against the petitioner. The Labour Court has not exercised the jurisdiction under Section 11-A of the Industrial Disputes Act. The Labour Court also considered the earlier misconduct which was not the subject matter of charge sheet https://hcservices.ecourts.gov.in/hcservices/ issued to the petitioner and as such the very award is non est in law. 6. The learned counsel for the second respondent justified the award passed by the Labour Court. According to the learned counsel, the petitioner was not in a position to account for the excess amount found in the bag and as such the Labour Court was perfectly correct in its finding that the misconduct was proved. ANALYSIS:- 7. The petitioner was on duty as Conductor in the bus owned by the second respondent Corporation. The bus was proceeding from Dharmapuri to Hosur. The petitioner collected a sum of Rs.13.40 from two passengers. However tickets were not issued to those passengers. Subsequently checking inspectors entered the bus and physically verified the tickets issued by the petitioner. It was found that two passengers were not in possession of tickets. They boarded the bus at Palacode and were proceeding to Hosur. The checking was made at a place near Royakottai. 8. The petitioner gave a voluntary statement to the checking staff admitting his guilt and it was counter signed by the driver of the bus. In the said statement the driver had admitted that when the Inspectors questioned the two passengers, they told that though ticket amount was given to the conductor, no tickets were issued to them. The factum of interrogation of the passengers were proved through the evidence of M.W.1-Munab, who conducted the inspection. The evidence of M.W.1 was supported by Ex.M.1, the check report which was prepared on the spot at the time of detection of misconduct. It is true that the petitioner has retracted from his statement as found in Ex.M.2. However the fact remains that it was written in his own hand-writing. 9. The statement was given on 20.6.1991. Subsequently the explanation was given by the petitioner on 1.7.1991. However till the submission of explanation, the petitioner has no case that he was made to sign the statement by coercion. Not even a single complaint was lodged by the petitioner against the checking staff till the submission of explanation. This clearly shows that the so called coercion and inducement were clearly after thought. It is also true that the driver has also retracted from his earlier statement. The driver had earlier signed the statement and it was quite natural that to save his colleague he has retracted from his earlier version. 10. The petitioner has examined a passenger by name Saradha, who is stated to be the wife of Raja, the person who has given the statement in Ex.M.4. The learned Judge examined the evidence of W.W.1 Saradha and arrived at a categorical conclusion that on the face of it, her evidence was highly artificial. In her evidence https://hcservices.ecourts.gov.in/hcservices/ W.W.1 has stated that her husband gave Rs.100/- and obtained two tickets for them for a sum of Rs.13.40 and the Conductor gave only a sum of Rs.20/- and promised to pay the balance later. However it was not their case during the time of detection of misappropriation. 11. Though the petitioner has taken up the contention that the enquiry was not fair and proper the said contention was subsequently given up. The award of the Labour Court clearly shows that the issue was dealt with in extenso and the evidence recorded before the Labour Court was considered in depth and a factual finding was arrived at to the effect that the charge framed against the petitioner was clearly proved. 12. The principle of Res ipsa loquitur applies to a case like this as the incident speaks for itself. The petitioner was found having excess cash in his bag and therefore it was for him to explain as to how such excess was found with him. The explanation submitted by the petitioner in the light of the evidence tendered on his side was not sufficient to discharge that burden. It is not possible in a case like this to examine the passengers for the purpose of deciding the charge framed against the conductor. The conductor acts in a fiduciary capacity and he was expected to safeguard the interest of the Corporation. Non examination of the passenger was not fatal in a case involving the misconduct of conductor. 13. The learned counsel for the petitioner also contended that no attempt was made by the Labour Court to decide as to whether the punishment was proportionate to the charges levelled against the petitioner. According to the learned counsel the earlier misconduct was taken as a ground to concur with the finding rendered by the disciplinary authority that the order of dismissal was the proper punishment. 14. It is found from the award that the Labour Court has also considered the proportionality of the punishment. While considering the said punishment the Labour Court has also considered the earlier punishment given as per Ex.M.13. It is true that there was no reference about the earlier punishment in the charge sheet issued to the petitioner. However that was immaterial in a case like this. The document in Ex.M.13 was marked as an exhibit on the side of the second respondent with consent. Therefore the petitioner was well aware of the earlier proceedings. He was not taken by surprise as the document was marked only in his presence. The said document was not the basis for arriving at a conclusion that the punishment was proportionate to the charge framed against the petitioner. Therefore there is no basis in the contention raised by the learned counsel for the petitioner to the effect that the earlier punishment was not the subject matter of enquiry in question. In fact the punishment imposed on the petitioner by the second respondent was not on the https://hcservices.ecourts.gov.in/hcservices/ basis of the earlier punishment. The charge framed against the petitioner for the misconduct in question was independently considered and the punishment of dismissal was accordingly imposed on the petitioner. Therefore it cannot be said that the Labour Court has not considered the issue of proportionality of punishment under Section 11 A of the Industrial Disputes Act. 15. The Supreme Court in Divisional Controller, N.E.K.R.T.C. v. H. Amaresh,(2006) 6 SCC 187, considered the case of a Conductor who had mis-appropriated a sum of Rs.360.95. While considering the punishment of dismissal awarded to the employee, the Supreme Court observed thus:- "18..........This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriating the Corporation’s funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. The judgment in Karnataka SRTC v. B.S. Hullikatti2 was also relied on in this judgment among others. Examination of the passengers of the vehicle from whom the said sum was collected was also not essential. In our view, possession of the said excess sum of money on the part of the respondent, a fact proved, is itself a misconduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such https://hcservices.ecourts.gov.in/hcservices/ action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantum. 16. In KSRTC (NWKRTC) v. A.T. Mane (2005(3) SCC 254), the Supreme Court considered the proportionality of punishment in a case of misappropriation involving the Conductor of the bus and in the said factual context observed thus:- “12. Coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating the corporation’s funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal.” 17. The jurisdiction of this court under Article 226 of the Constitution of India in a matter like this is very limited. It is not within the province of this court to re-appreciate the entire evidence and to come to a different conclusion. The Labour Court is the final court on facts and when the said court has arrived at a conclusion on the basis of evidence this Court is not expected to interfere in those findings unless the findings are perverse or material evidence were not taken into consideration. 18. The Supreme Court in Madurantakam Coop. Sugar Mills Ltd. v. S. Viswanathan,(2005) 3 SCC 193, examined the scope of interference of the award of the Labour Court in a proceeding under Article 226 of the Constitution of India and observed thus : "12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these types of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution can go into the question of https://hcservices.ecourts.gov.in/hcservices/ fact decided by the Labour Court or the Tribunal. But before going into such an exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon. 19. The second respondent has succeeded in proving that the petitioner has not issued tickets to the passengers though appropriate fare was collected from them. The enquiry further proved that the petitioner was having excess cash with him. Therefore the factum of such possession of excess cash coupled with the fact that two of the passengers were not in possession of tickets clearly proved the misconduct. The earliest version of the petitioner as found in the statement given by him in his own handwriting also goes against him. The said statement was counter signed by the driver and that was the earliest statement in the matter. The statement also contains the details of the interrogation of the two passengers by the checking inspector and all those evidence were taken into consideration by the enquiry officer for coming to a conclusion that the charge framed against the petitioner was proved. 20. The report of enquiry officer was again tested by the Labour Court. The Labour Court on such consideration of pleadings and evidence arrived at a factual finding that the report of the enquiry officer was based on legal evidence. The punishment imposed by the second respondent was also considered by the Labour Court and a finding was recorded that the punishment was proper. Therefore I do not find any reason to interfere in the said finding in a proceeding under Article 226 of the Constitution of India. 21. In the result, the writ petition is dismissed. No costs. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar Tr/ https://hcservices.ecourts.gov.in/hcservices/ To 1. The Presiding Officer Labour Court Vellore. 2. The Management of Annai Satya Transport Corporation Ltd., (Now renamed as Tamil Nadu State Transport Corporation (Salem, Division-II) Ltd., by its Managing Director Bharathipuram, Dharmapuri. +1 cc to Mr.V.Ajoy Khose, Advocate, SR.No.61805 +2 cc to Mr.C.Kanagaraj, Advocate, SR.No.61432 W.P.No.14346 OF 2000 NSM {CO} TP/25.11.2009. https://hcservices.ecourts.gov.in/hcservices/