IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17 .02.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.6514 of 2003 and W.P.M.P.No.14376/2003 and 514/2007 Tamil Nadu State Transport Corporation (Madurai Division IV) Ltd., Rep. By its Managing Director, Bypass Road, Collectorate Post, Dindugal 624 004. ... Petitioner vs. 1.The Presiding Officer, Labour Court, Tiruchirappalli. 2.Karunakaran ....Respondents Writ Petition under Article 226 of The Constitution of India praying for the issuance of a writ of Certiorari to call for the records from the file of the first respondent in I.D.No.108 of 1999 on its file and quash its award dated 5.6.2002. For Petitioner : Mr.N.Yogesh For Respondents : Mr.R.Kannan for R2 R1-Court O R D E R The petitioner/Tamil Nadu State Transport Corporation, Dindigul has filed the writ of Certiorari in calling for the records from the file of the first respondent/Labour Court, Trichirappalli in I.D.No.108/99 and to quash the award passed on 05.06.2002. 2. The first respondent/Labour Court, Trichirappalli in its award on 05.06.2002 held that the charges levelled against the second respondent/Workman were proved by the petitioner/Transport Corporation, but ultimately came to the conclusion that the punishment of dismissal from service imposed on the second respondent/workman was excessive but ordered for his reinstatement https://hcservices.ecourts.gov.in/hcservices/ with continuity of service but denied the backwages and other benefits because of the fact that the workman remitted an amount of Rs.2,500/- towards the value of 5 ticket books and took into consideration his family circumstance and also with a view to provide an opportunity to mend himself. 3. According to the learned counsel for the petitioner/Transport Corporation, the second respondent/employee was working a Conductor in the petitioner/Corporation and he was dismissed from service on 09.08.1998 over the proved misconduct of stolen ten ticket books (S.A.I.191-200) while he was on duty in January 1998 each valuing Rs.500/- from the office of the petitioner/Transport Corporation and sold them in special route of Dindigul-Gobinathasamy Temple and thereby misappropriated a sum of Rs.2,500/- and in this regard, the second respondent/Workman was temporarily suspended on 27.02.1998 and 02.03.1998, he was served with a charge memo and the petitioner conducted a domestic enquiry and the enquiry Officer has submitted his Enquiry Report on 18.06.1998 holding that the charges were proved and later a second show cause notice dated 13.06.1998 was issued to the petitioner proposing the punishment of dismissal from service and the second respondent was furnished with the copy of the enquiry proceedings, findings report and a list of his past records and he submitted his explanation on 24.07.1998 praying to reduce the punishment but the petitioner/Transport Corporation had not accepted his request and ultimately removed him from service by means of final order dated 07.08.1998 in regard to the proved charges and the second respondent/Workman was constrained to file I.D.No.108/99 on the file of the first respondent/Labour Court praying for his reinstatement with full backwages, continuity of service with all attendant benefits and the first respondent/Labour Court passed an award holding that the charges levelled against the second respondent/employee were proved but directed reinstatement of the second respondent/Workman with continuity of service but denied the backwages and other benefits and while directing the reinstatement of the second respondent/workman, the first respondent/Labour Court was swayed away by the act of the second respondent/employee in remitting a sum of Rs.2,500/- towards valuing of 5 ticket books and also his family circumstance and also with a view to provide one more opportunity to the second respondent/employee not to commit these kind of acts once again and in this regard, the first respondent had exercised its discretion in a wrongful manner and it had invoked section 11-A of the Industrial Disputes Act in a mechanical fashion and as a matter of fact, the power envisaged under Section 11-A of the Industrial Disputes Act will have to be exercised by the first respondent/Labour Court with utmost care, caution and with judicial circumspection and the same cannot be exercised in an arbitrary, capricious and mechanical fashion and when the second respondent/employee being a Conductor acting in a https://hcservices.ecourts.gov.in/hcservices/ fiduciary capacity and holding the position of trust must act with sincerity and honesty in discharging his duties towards the petitioner/Transport Corporation (employer) and in short, the act of misappropriation must be strictly dealt with and even the past records of the second respondent/employee were of the blemishes and in a case of misappropriation like the present one, no misplaced sympathy could be shown by the first respondent/Labour Court and if the second respondent/employee who was found to have misappropriated the money of the petitioner/Corporation by practising dishonesty was to be reinstated then, it will affect the morale of the petitioner's Corporation and since the award bristles with material errors of law apparent on the face of record, the same is liable to be set aside by this Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India and therefore prays for allowing the writ petition. 4. To lend support of his contention that the first respondent/Labour Court had committed an error apparent on the face of record in its award, the learned counsel for the petitioner/Transport Corporation cites the decision of this Court THE NILGRIS DISTRICT CONSUMERS' CO-OPERATIVE WHOLESALE STORES LTD., Vs. THE APPELLATE AUTHORITY, DEPUTY COMMISSIONER OF LABOUR, COIMBATORE, 2003 (4) CTC 166 at page 168, wherein at paragraphs 9 to 11, it is observed as follows:- "...9. While dealing with Charge No.1, the Appellate Authority has also recorded an erroneous finding to the effect that the Management himself had agreed that the said charge was not sufficient for dismissal of the employer from the service. The learned counsel for the second respondent is unable to point out any such concession on the part of the management. Therefore, the said observation is an error apparent on the face of the record as well as a perverted finding. 10. I have also independently considered the proportionate punishment. The first charge is a serious one amounting to misappropriation. The charge is not only admitted but also the delinquent had paid part of the amount and still a further sum of Rs.8,000 remain to be unpaid. 11. Therefore, there is no material to interfere with the order passed by the management dismissing the delinquent from service. The interference by the Appellate Authority having regard to the nature of the misconduct is uncalled for and this writ petition is allowed. Such a delinquent cannot be thrust against an employer. No costs." https://hcservices.ecourts.gov.in/hcservices/ 5. In response, the learned counsel for the second respondent/employee contends that the first respondent/Labour Court had found that the charges levelled against the petitioner were proved but it took into consideration an important fact that the second respondent/employee remitted a sum of Rs.2,500/- towards the value of 5 ticket books before the Management of the petitioner/Transport Corporation and also by considering his family circumstance and also the second respondent/employee not to commit such kind of mistakes in future with a view to provide an opportunity in this regard had ordered for reinstatement of the second respondent with continuity of service without backwages and other attendant benefits and the first respondent/Labour Court had only exercised its power under Section 11-A of the Industrial Disputes Act and this could not be found fault with by the petitioner/Transport Corporation in any manner and therefore prays for dismissal of the writ petition. 6. The learned counsel for the second respondent/employee cites the decision of this Court TAMIL NADU STATE TRANSPORT CORPORATION (MADURAI DN.III) Vs. THE PRESIDING OFFICER, LABOUR COURT, 2005 (3) CTC 580 (DB), wherein it is held that "Court cannot sit as a Court of First Appeal in Writ jurisdiction to re-assess or re-appreciate evidence and unless finding is based on no evidence, Court cannot interfere with the finding of fact in Writ Jurisdiction." 7. At this stage, this Court points out that the term 'misconduct' consists of two words 'Mis' meaning badly and 'conduct' meaning behaviour. As a matter of fact, 'misconduct' is a relative term and it refers to a bad behaviour, unlawful behaviour or conduct, wrong or improper conduct, to mismanage and conduct amiss. The synonyms for 'misconduct' are a misbehaviour; misdemeanour; misdeed, mismanagement; delinquency; offence. Therefore it is quite evident that 'misconduct' is a specific word with a specific connotation. Significantly this Court points out that 'Misconduct' is doing something or omitting to do something which is wrong to do or omit whereas the person who is guilty of the act or the omission knows that the act which he is doing, or that which is omitting to do, is a wrong thing to do or omit it, therefore follows that the misconduct may or may not be wilful, as per the decision LEWIS Vs. G W RAILWAY COMPANY, (1877) 3 Q.B.D 195. 8. In fact the term 'misconduct' is a generic term. Moreover the Stroud's Judicial Dictionary refers to 'misconduct' meaning misconduct arising from ill motive, acts of negligence, errors of innocent mistake do not constitute such misconduct. Really speaking, the concept of misconduct in an employer and employee relationship is founded upon the nature and relationship itself and https://hcservices.ecourts.gov.in/hcservices/ the same being an implied or expressed conditions of service, which admittedly will encompassed the factors like an employee must be trustworthy, that his acts will justify the confidence of an employer, that he will not act so as to prejudice or damage any interest of an employer, that he will not act or conduct himself in a way which is inconsistent or incompatible with the fulfil discharge of his duties to an employer that he will not behave in an unwilling manner and that he will not be habitually negligent as per the decision S.T.THEWARI Vs. CENTRAL RAILWAY, (1960) 1 LLJ at page 167. 9. That apart, a loss of confidence is a subjective feeling or an individual reaction to an objective set of facts and motivations and a Court is concerned with the latter and not with the former, in the considered opinion of this Court. Also, a punishment to be imposed by an Authority must suit the offence depending upon the nature of misconduct and not on the value involved therein, only by assigning cogent reasons a Court of Law or Tribunal ought to interfere in punishment only in an exceptional circumstance. In case of fraud or dishonesty in connection with a company's business or depriving an employees' legitimate due amount then in such a case the relevancy of past record does not matter much. To put it precisely, for a proved misconduct, it is for the employer and not for the Court to decide the question of punishment pertaining to a misconduct. If a Tribunal exercises its power under Section 11-A of the Industrial Disputes Act in an illegal fashion then its award is clearly unsustainable in the eye of law, in the considered opinion of this Court. In an act of dishonesty and fraud, the misconduct being of a serious nature, the same will attract not only the dismissal from service but much else as there legal consequences. In short, when there is fiduciary relationship between the Employee and the Employer, the quantum of misappropriation is an alien and an irrelevant factor. Generally the High court will not interfere with the quantum of punishment when it is based on evidence. 10. However i) illegality,irrationality and the procedural impropriety are few grounds for a Judicial Review. ii) An imposition of adequate penalty proves the fineness of the Disciplinary Authority as well as the Labour Court/Tribunal and where it is missing, the Court has to fill it up. iii) To put it briefly, the penalty must made the misconduct i.e., the proper, just and not an extreme one. iv) The powers of Judicial Review are meant to ensure that a party receives a fair treatment and not to ensure that the conclusion with the Authority reaches is necessarily correct in the eye of law. A Court of law has the necessary powers https://hcservices.ecourts.gov.in/hcservices/ of Judicial Review in the matter of disproportionate penalty. Proportionality is in effect a facet of the principle of reasonableness. In regard to certain aspects, a Judicial Review of fact is permissible. It is needless to say that 'the principle of Wednesbury' is applicable. Though the choice of quantum of punishment is within the domain and discretion of the concerned Authorities, yet it should not be unduly harsh or vindictive or so disproportionate to the offence so as to shock conscience. Betraying the confidence of an employer must not be a mere one or fancy one. But it should be a bonafide and reasonable one. In this connection, this Court points out the decision of the Honourable Supreme Court KAMAL CHANDRA ROY CHOUDHARY Vs. UNION OF INDIA, 1987 (54) FLR at page 801, wherein it is held that ' in a reasonable case of a confidential or responsible post being misused or a sensitive or strategic post being abused, it may be a risk to retain an employee, once suspicion has arisen and a disciplinary enquiry cannot be forced on the master. Therefore a termination simpliciter may be bonafide, not colourable and loss of confidence may be evidentiary of good faith of the employer." 11. Also, in the decision S.VISWESWARIAH Vs. NEW INDIA ASSURANCE COMPANY LIMITED, 1989 (58) FLR at page 568, pertaining to the charges of misappropriation of money and assault being proved an employer of the punishment of dismissal was aptly awarded. 12. It is apt for this Court to recall observations made in the decision KARNATAKA STATE ROAD TRANSPORT CORPORATION, CENTRAL OFFICE, BANGALORE AND ANOTHER Vs. SATHYANARAYAN, 2003 (97) FLR at page 181 (DB) at paragraph 5, it is among other things observed as follows:- "....The Conductor in a public Transport Corporation is a trustee of the public fund and a high degree of probity is expected of him in discharging the duties and functions attached to his post. If the Conductor collects the fares from the passengers and does not account the same to the credit of Corporation, such a person cannot be permitted to continue in the service of the Corporation. It is satisfactorily established that the delinquent workman despite collection of the fares did not account it to the credit of the Corporation and as if that was not enough, he also closed the Waybill in order to cover up his misdeeds. This speaks volumes about his propensity to be corrected, etc.," 13. A Labour Court can interfere with the punishment under Section 11-A of the Industrial Disputes Act only when it is disturbing to the conscience and it is highly disproportionate to https://hcservices.ecourts.gov.in/hcservices/ the misconduct committed. In other words, a Labour Court is not empowered to substitute a punishment of removal of a workman unless it shocks its conscience. 14. As far as the present case is concerned, during January 1998 when the second respondent/Conductor was working as a Conductor in the Dindigul Union-III Branch of the petitioner/Corporation stolen the 10 ticket books of Rs.500 value (S.A.I.191-200) voluntarily from the Branch Office and thereby deceived the Transport Corporation and also from out of the said stolen ticket books, he utilised 5 ticket books (S.A.I.191-195) in a route where it could not be sold out and resultantly sold the same and in order to cover up his act of stealing the tickets, he registered the fake sale details in the Waybill and further committed an act of misappropriation in remitting a sum of Rs.2,500/- received through the sale of such tickets to the office and therefore he had not acted honestly in his duty and in all violated Rule 16(5), 16(75) and 16(5) of the standing orders of the petitioner/Transport Corporation. The petitioner was duly served with a charge memo issued by the petitioner Corporation dated 02.03.1998 and a domestic enquiry was conducted by the petitioner Corporation and the Enquiry Officer submitted his findings on 18.06.1998 holding that the charges levelled against the second respondent/employee were proved. Later the petitioner was dismissed from service as per final order dated 07.08.1998, issued by the petitioner/Corporation. At this Stage it is necessary for this Court to necessarily point out that the second respondent/employee in his letter dated 19.02.1998 addressed to the petitioner's Corporation, Dindigul Branch Branch III Manager had admitted that in January on one night when he came to remit the money, he stole Rs.5 value ticket books 10 numbers which was kept separately in the bundle place and he took the same and later sold 5 ticket books in Gobinatha temple special route and when the Branch Manager called him in connection with the Rs.5 ticket books and enquired him, he admitted his mistake and he handed over the 5 ticket books and a sum of Rs.2,500/- towards the value of 5 tickets and further he has assured that he will not commit such mistake in future and will discharge his duty. In fact, a reading of contents in Ex.M.1, the letter dated 09.02.1998 to the second respondent/employee unerringly indicates that the second respondent/employee had admitted the misdeeds including the act of misappropriation and remitting the amount in question and all the more, this was not a favourable circumstance in favour of the second respondent/employee, in the considered opinion of this Court. Added further, the first respondent/Labour Court also in its award had come to the conclusion that the charges levelled against the second respondent/employee were proved but took the view that the second respondent had remitted misappropriated amount of Rs.2,500/- to the petitioner corporation, etc., and resultantly https://hcservices.ecourts.gov.in/hcservices/ ordered for his reinstatement in service with continuity of service and deprived the relief of backwages and other attendant benefits and in this regard, this Court is of the earnest and considered view that the first respondent/Labour Court had not exercised its power of discretion as per Section 11-A of the Industrial Disputes Act in a proper and reasonable way but it exercised the same not in a valid and legal manner and therefore the same is clearly unsustainable in the eye of law and moreover this Court opines that the quantum of misappropriation or remitting the misappropriated amount of Rs.2,500/- was an irrelevant one to be taken note of by the first respondent when admittedly there was a tacit fiduciary relationship of Master and Servant between the second respondent and the petitioner/Transport Corporation and viewed in that perspective, this Court interferes with the Award passed by the first respondent and imposes a proper punishment of dismissal from service on the second respondent for the proved charges and resultantly allows the writ petition by setting aside the Award of the Labour Court in furtherance of substantial of justice leaving the parties to bear their own costs. The connected miscellaneous petitions are closed. The petitioner/Transport Corporation is directed to pay the wages scrupulously as per Section 17 B of the Industrial Disputes Act to the second respondent/workman directly, if not already paid. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vri To The Presiding Officer, Labour Court, Tiruchirappalli. +1cc to Govt. Pleader Sr 11350 +1cc to M/s.R.Kannan, Advocate Sr 10792 +1cc to M/s.S.Jayaraman, Advocate Sr 10745 SSK(CO) km/26.2. W.P.No.6514 of 2003 https://hcservices.ecourts.gov.in/hcservices/