WP/475/2000 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.475 OF 2000 Pandurang Hari Wagh ... Petitioner V/s. Maharashtra State Road Transport Corporation, Nashik & Anr. ... Respondents Mr. Bhavesh Parmar for the Petitioner. Mr. G.A. Karmarkar i/b. Mr. G.S. Hegde for Respondent No.1. CORAM : SMT. NISHITA MHATRE, J. RESERVED ON : 27 TH JANUARY, 2011. PRONOUNCED ON : 11 TH MARCH, 2011. JUDGEMENT : 1. The present Writ Petition is directed against the Award dated 1st November, 1999 passed by the Labour Court, Nasik in Reference (IDA) No.24 of 1991. The Labour Court has dismissed the Reference as it was of the view that the petitioner was not entitled to reinstatement with continuity of service and full back-wages. 2. The brief facts involved in the present case are as follows : . The petitioner was employed as a “Conductor” with the respondent No.1- Corporation. He was charge sheeted on 9th October, 1987, under Clause 33 of Annexure ”A” of the Discipline and Appeal Procedure, for having reissued tickets to three passengers on 14th September, 1987 while on duty on the bus route from Mumbai to Nashik. It was alleged in the charge sheet that the petitioner had WP/475/2000 2 committed an act of misappropriation or dishonesty or fraud in the Corporation’s work or property, which is defined as a “misconduct” under Clause 12B of the Annexure “A” of the Discipline and Appeal Procedure applicable to the employees of the respondent No.1-Corporation. The petitioner was suspended from duty with effect from 13th October, 1987. On 11th January, 1988, the petitioner was allowed to resume his duties as the order of suspension was withdrawn. 3. An enquiry was held against the petitioner in which one of the passengers, who was allegedly reissued a used ticket, deposed. This witness stated that he had bought the ticket from a stranger and not from the Bus Conductor i.e. the petitioner herein. The enquiry was completed within two sittings after the petitioner examined himself before the Enquiry Officer and denied the charges levelled against him. On receipt of the report of the Enquiry Officer, the Disciplinary Authority dismissed the petitioner from service on 2nd April, 1988. Aggrieved by the decision of the respondent No.1-Corporation, the petitioner raised an industrial dispute, which was referred for adjudication before the Labour Court, Nashik. 4. In his statement of claim, the petitioner contended that the enquiry was vitiated as the findings of the Enquiry Officer were perverse. He pleaded that the enquiry was not conducted in a fair and proper manner and, therefore, should be set aside. He also pleaded various reasons for which the enquiry should be set aside as the findings were perverse. According to the petitioner, the evidence led WP/475/2000 3 before the Enquiry Officer did not point to his guilt and, therefore, he had wrongly been dismissed from service. 5. The respondent No.1-Corporation contended in its written statement that all the requisites of a fair and proper enquiry were complied with and that the enquiry was held in consonance with the rules of natural justice. It was further submitted that the evidence on record before the Enquiry Officer was sufficient to prove the charges against the petitioner and, therefore, he had been dismissed from service. Apart from this, it was pleaded that the past service record of the petitioner was not unblemished and, therefore, he did not deserve to be reinstated in service. 6. On the preliminary issue as to whether the enquiry was conducted in a procedurally fair and proper manner, the Labour Court by its decision dated 30th November, 1993 held that the enquiry was fair and proper. It held that all the relevant documents were furnished to the petitioner and that he was afforded a reasonable opportunity to defend himself at the enquiry. 7. The parties did not adduce any evidence before the Labour Court after Award Part I was passed on 30th November, 1993. The Labour Court has noted that in the spot statements of the two passengers Damodar and Sudhakar, they had stated that the Conductor, i.e. the petitioner herein, had issued used tickets to them. These spot statements were recorded on 14th September, 1987, immediately WP/475/2000 4 after the Bus was checked in the presence of the petitioner. No opportunity was given to the petitioner to cross examine them at that juncture. Sudhakar, who was examined before the Enquiry Officer, contended that his statement, which was recorded at the spot enquiry, was made according to the directions of the checking squad. The Labour Court held that this witness had rightly been disbelieved by the Enquiry Officer in view of the spot statements recorded immediately after the incident had occurred. The Labour Court held that the fact that the petitioner had permitted three passengers to travel a long distance on used tickets supported the probability that he himself has issued those tickets. The Labour Court concluded that the petitioner had misappropriated an amount of `65.10. As regards the past service record of the petitioner, the Labour Court noted that there was an adverse entry in his record indicating that the passengers were found to be travelling without a ticket in a Bus where the petitioner was on duty as a “Conductor”. The Labour Court thus found that since the act of misappropriation was proved, there was no need to grant the petitioner the relief claimed by him. 8. Mr. Parmar, the learned Advocate appearing for the petitioner, submitted that when the spot inspection took place, no panchanama of the cash carried by the petitioner on his person or in the Conductor’s bag was carried out. According to him, therefore, it could not be said that the petitioner had misappropriated any amount. Further, he submitted that although Sudhakar had been examined before the Enquiry Officer, he had not reiterated the statement made by him at the spot WP/475/2000 5 enquiry. The learned Advocate pointed out that the respondent No.1-Corporation did not bother to corroborate the spot statement of Damodar by examining him before the Enquiry Officer once it had found that the Sudhakar had deposed contrary to his spot statement. The learned Advocate further pointed out that none of the three Inspectors who conducted the spot enquiry were examined before the Enquiry Officer. He submitted that although the statements of the witnesses recorded at the spot enquiry had been signed by the petitioner, he had not admitted the contents of those statements. The learned Advocate, therefore, urges that at best the charge against the petitioner could have been one of negligence and not of misappropriation. 9. Mr. Hegde, the learned Advocate appearing for the respondent No.1- Corporation, submitted that the Enquiry Officer has found the petitioner guilty on the basis of the preponderance of probability. He pointed out that a domestic enquiry is not a criminal trial where the standard of proof required is much higher; the charge levelled against the delinquent employee has to be proved to the hilt. According to the learned Advocate, the petitioner had sold the tickets to the passengers on 13th September, 1987. He had taken back the tickets after the journey from those passengers and had reissued the same tickets to another set of passengers on 14th September, 1987. According to him, the contention of the petitioner that the tickets were not issued by him but the same were given by a stranger to these passengers is an afterthought and has rightly not been accepted WP/475/2000 6 by the Labour Court. He submitted that even though the cash carried by the petitioner was not checked when the tickets were found to have been reused, it would not necessarily mean that the petitioner would stand absolved of the misconduct committed by him. The learned Advocate pointed out that the past service record of the petitioner indicated that he had indulged in a similar act of misconduct on an earlier occasion when it was found that the passengers were travelling without a ticket in the Bus on which the petitioner was a “Conductor”. He submitted, therefore, in such circumstances, the petitioner did not deserve the indulgence of Court and the Reference has rightly been dismissed by the Labour Court. 10. Only the Award dated 1st November, 1999 has been challenged in the present Petition. The Award Part I on the preliminary issue as to whether the enquiry held against the petitioner was fair and proper has not been impugned. Therefore, the finding of the Labour Court that the procedurally the enquiry was fair and proper must be accepted. 11. The next issue which will have to be determined is whether the findings of the Enquiry Officer and the Labour Court are perverse. As noted earlier, the incident allegedly occurred on 14th September, 1987, when the petitioner was a “Conductor” on the Bus owned by the respondent No.1-Corporation, which was journeying from Mumbai to Nasik. The Bus was checked at Mundegaon and it was found that three passengers in two groups had been issued used tickets. The WP/475/2000 7 allegation is that the petitioner had, on the previous day while on duty on the Bus travelling from Nasik to Mumbai, issued the same tickets to the passengers. It was alleged that these used tickets had been sold by the petitioner on 13th September, 1987 to the passengers. The charge against the petitioner was, therefore, of having reissued used tickets and of defalcation of `65.10. 12. In the spot statements recorded, the passengers stated that it was the petitioner who had issued the used tickets to them. However, one of the passengers, Sudhakar, who was examined before the Enquiry Officer, has stated that his spot statement was made at the behest and on the dictates of the checking squad. In fact, Sudhakar has stated that another passenger had informed him that he had extra tickets as his co-passengers had not reached the Bus Station. Sudhakar, therefore, purchased the tickets without suspecting any foul play as the passenger appeared to be educated and bonafide. This statement of Sudhakar is not controverted by the respondent No.1-Corporation. Damodar, who was the other passenger, whose statement was recorded at the spot enquiry, has not been examined before the Enquiry Officer. Therefore, it is difficult to accept the contention that the spot statement made by Sudhakar was voluntary and/or correct. 13. The findings of the Enquiry Officer and the Labour Court that Sudhakar should be disbelieved is untenable. When Sudhakar was produced before the Enquiry Officer to depose on behalf of the respondent No.1-Corporation, there WP/475/2000 8 was no need to disbelieve him. Furthermore, if the respondent No.1-Corporation had found that the witness Sudhakar was not reliable, it ought to have examined Damodar, whose statement had also been recorded at the spot enquiry. Having failed to do so, the statement of Sudhakar cannot be discarded. Apart from this, it appears that the checking squad was not examined before the Enquiry Officer and reliance was solely placed on the statements recorded at the spot enquiry. 14. Undisputedly, these statements, which were recorded at the spot enquiry, were not made under oath, nor were the persons who were made the statements subjected to cross-examination immediately after the statements were made. It was only when Sudhakar was produced as a witness before the Enquiry Officer that he chose to disclose the manner in which he purchased the ticket. On being asked by the Enquiry Officer as to why he had not revealed the true facts int he spot enquiry, he stated that the checking squad directed him to make the statement which was recorded at the spot enquiry. Before the Enquiry Officer he has also deposed that in fact he had purchased the ticket from some one other than the petitioner after he saw another passenger purchase a ticket from him. 15. It is true that the spot statements of the witnesses have been signed by the petitioner. However, this would not necessarily mean that the statements of those persons had been accepted by the petitioner. WP/475/2000 9 16. In my opinion, therefore, the findings of, both, the Enquiry Officer and the Labour Court are perverse. Furthermore, there is no material on record to indicate what was the amount which the petitioner had carried with him while on the Bus. Nor is there any indication that he was found carrying any amount in excess of what ought to have been in his bag after issuing tickets to the passengers. In these circumstances, in my opinion, it is difficult to accept that the petitioner was guilty of the misconduct alleged against him. 17. In the case of U.P. State Road Transport Corporation & Ors. vs. Mahesh Kumar Mishra & Ors., reported in AIR 2000 SC 1151, reliance was placed by the Disciplinary Authority and the Tribunal on the report of the Transport Inspector which also bore the signature of the workman. This document was relied on by the Disciplinary Authority and the Tribunal on the ground that if the workman had found that the report was incorrect, he should have protested immediately. The Disciplinary Authority and the Tribunal held the workman guilty on the basis of whatever was written in the report. Thus, the facts in the case before the Supreme Court were almost identical to the facts in the present case. The Supreme Court held that if the punishment imposed on the workman shocks the conscience of the Court, the High Court can always interfere with the punishment inflicted upon the delinquent. In that case the Supreme Court found that the reliance had been placed only on the report of the Transport Inspector which was signed by the workman and not on any statements made by the passengers. WP/475/2000 10 18. As I have already said that though the spot statements were recorded, these statements have not been reconfirmed before the Enquiry Officer. In fact, one of the passengers has categorically stated that his statement at the spot enquiry was not voluntary. 19. In these circumstances, in my opinion, the impugned Award dated 1st November, 1999 passed by the Labour Court, Nasik in Reference (IDA) No.24 of 1991 must be set aside and the petitioner has to be reinstated with continuity of service. However, the Reference (IDA) No.24 of 1991 will have to be remanded to the Labour Court to ascertain whether the petitioner is entitled to back-wages from the date of his dismissal till he is reinstated in service. 20. Accordingly, the Writ Petition is allowed. 21. The impugned Award dated 1st November, 1999 passed by the Labour Court, Nasik in Reference (IDA) No.24 of 1991 is set aside. The petitioner is entitled to reinstatement with continuity of service. 22. The Reference (IDA) No.24 of 1991 is remanded to the Labour Court, Nasik to decide the issue : “whether the petitioner is entitled to back-wages with effect from 2nd April, 1988, i.e. the date on which the petitioner’s services were terminated, till reinstatement ?” WP/475/2000 11 . The Labour Court, Nasik shall endeavour to decide the issue as expeditiously as possible and in any event within six months from today. 23. Rule made absolute, partly. No order as to costs.