CWP No. 14681 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 14681 of 1993 Date of decision: 27.05.2009 The Pepsu Road Transport Corporation, Patiala through its Managing Director .....PETITIONER VERSUS The Presiding Officer, Labour Court, Jalandhar and another ..... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. R.S.Ahluwalia, Advocate, for the petitioner. Mr. Vikas Singh, Advocate, for respondent No. 2. *** AUGUSTINE GEORGE MASIH, J. (ORAL) In the present writ petition, the challenge is to the award dated 18.12.1992 (Annexure P-1) passed by the Labour Court, Jalandhar, whereby the reference has been answered in favour of the workman holding him entitled to reinstatement in service with 50% back wages from the date of demand notice till reinstatement. CWP No. 14681 of 1993 2 Counsel for the petitioner contends that it is a case where the penalty of dismissal was ordered against the workman for charge of committing fraud of Rs. 44/- as the said charge stood proved against him in a departmental enquiry held against him. The said enquiry has been held to have been conducted in accordance with law by the Labour Court in this very impugned award while deciding issue No. 1. He contends that once the fraud committed by the workman stood fully proved against him, the Management lost its faith on the workman, who is a Conductor and who has to deal with passengers and money. He contends that once a dishonest employee has been dismissed from service for having committed a fraud, the Management lost its faith on the workman and he cannot be thereafter again trusted to deal with money. The Labour Court, in the given facts and circumstances, was not justified in exercising its powers under Section 11-A of the Industrial Disputes Act, 1947 and substituting the order of dismissal passed by the competent punishing authority in accordance with rules governing the service to that of stoppage of three increments with cumulative effect and forcing on the Management a workman, on which the confidence and faith of the Management has been lost. He submits that the impugned award, therefore, cannot be sustained. On the other hand, counsel for respondent No. 2-workman contends that the fraud, which has been committed by the workman, was merely of Rs. 44/-, for which an extreme punishment of dismissal was ordered. The Labour Court while taking into consideration the difficult situation being faced by the workman as he had to support his family, which consisted of his wife, three daughters and two sons, had rightly exercised its powers by reducing the punishment of dismissal to that of stoppage of three increments with cumulative effect. He further submits CWP No. 14681 of 1993 3 that only 50% back wages from the date of demand notice have been ordered to be paid to the workman and he stands punished for his mis- conduct. He further submits that the Labour Court has not gone into the fact that the enquiry proceedings were vitiated as he had produced evidence in the form of Driver, who had supported the stand of the workman before the Enquiry Officer. Counsel for respondent No. 2- workman submits that after the initial stay, which was granted by this Court, of the impugned award, the same stood vacated vide order dated 07.02.1994, the workman was taken back in service in July, 1994 and has continued as such thereafter and is being paid regularly. He submits that at this stage by exercising the equitable jurisdiction of setting aside the award would be very harsh on the workman. He prays that in the given facts and circumstances, when there is at this stage no allegation with regard to any mis-conduct on the part of the workman, it would be too harsh to set aside the award as the effect thereof would be the recovery of the amount already paid to him and he would go out of job. I have heard the counsel for the parties and have gone through the records of the case. There can be no dispute with regard to the fact that issue No. 1, which was with regard to the factum as to whether a fair and proper enquiry was held against the workman or not, the finding has gone against the workman and in favour of the Management holding that the enquiry was as per law and the principles of natural justice were duly followed while conducting the enquiry proceedings. The effect thereof was that the enquiry report was upheld, wherein charge of committing a fraud of Rs. 44/- was established against the workman. Once the charge of fraud stood proved against the workman, the effect thereof was that the Management CWP No. 14681 of 1993 4 cannot trust such an employee, who has to deal with money and during the course of employment deal with passengers and those passengers pay in cash for the tickets, which are sold to them. The faith and confidence of the Management having been lost by the workman cannot be restored merely because the amount, which was said to have been defrauded by the workman, was less. Once it is proved that fraud has been committed by the workman and the said enquiry having been upheld by the Labour Court, the exercise of powers under such circumstances under Section 11- A of the Industrial Disputes Act by the Labour Court would not be justified. This Court in CWP No. 16364 of 2008, Haryana Roadways Engineering Corporation, Behrampur Road, Khands, Gurgaon (Haryana) vs. Industrial Tribunal-cum-Labour Court-I (Presiding Officer), Gurgaon and another decided on 14.05.2009, has held as follows:- “The powers under Section 11-A of the Act are no doubt discretionary in nature but the Labour Court is required to exercise this discretion in a judicious manner. It cannot be at the whims and fancies of the Labour Court that the powers under Section 11-A of the Act, which are extra ordinary, need to be invoked and put to use. The nature of allegations, the proof of charges in the departmental proceedings and the effect thereof also has to be kept in mind by the Labour Court while exercising its discretionary powers. The purpose and intend of the Industrial Disputes Act i.e. to maintain industrial peace and harmony, is required to be kept in mind where the allegations against the employee are serious and on being proved in the departmental proceedings, the employer loses CWP No. 14681 of 1993 5 his confidence, faith and trust on its employee, the Labour Court should not by exercising its powers under this Section force an employee on the Management. Great care and caution has to be exercised by the Labour Court while invoking this discretionary power. In the present case, as is apparent from the facts as has been discussed above, there are serious allegations against the workman with regard to attempt by him to steal aluminum scrap from the workshop where he was performing his duties. The said charges stood proved in the departmental proceedings initiated against him. The said departmental proceedings have been found by the Labour Court, vide its order dated 31.01.2006 to be fair and proper. The action, therefore, terminating the services of the workman was also in accordance with law. The only question, therefore, left which the Labour Court could have examined was with regard to order being justified or not. It has been time and again held by various Courts that the Labour Court should exercise its powers under Section 11- A of the Act sparingly and that too where the punishment granted to the workman is shockingly disproportionate to the charges proved against the workman or where the conscious of the Court is pricked by imposition of the punishment and where no reasonable person would have imposed such a punishment for the charges proved against delinquent workman. The present case is not of such a nature where the CWP No. 14681 of 1993 6 punishment meted out to the workman could be termed as shockingly disproportionate to the proved charges against the workman. A workman who at his workplace is entrusted with the material to perform his duty by the Management is expected to take good care of the same. The employee is required to work for the benefit of the employer and if he tries to steal the material even if it is scrap but can be translated into money if sold, will that not amount to the employer loosing the confidence, faith and trust in the employee ? The answer to this question is clear and simple 'Yes'. No employer would like to retain such an employee who is not trustworthy, is dishonest, is a thief and who keeps his personal interests and that too by dishonest intentions before the interest of the employer. The Labour Court is not supposed to nor is it expected to force such employees on his employer, if that is done, the Court would be paying dividend to such a selfish and dishonest employee. The Court cannot be a party to this mis- guided endeavour of the workman. In view of the above, the exercise of powers under Section 11-A of the Act by the Labour Court, cannot be sustained. Reference can be made to the judgments of Hon'ble the Supreme Court at this stage to Divisional Controller, N.E.K.R.T.C. (supra), and Managing Director, North-East Karnataka Road Transport Corporation (supra).” The Hon'ble Supreme Court in Managing Director, North- East Karnataka Road Transport Corporation vs. K. Murti, (2006) 12 CWP No. 14681 of 1993 7 SCC 570, has held, in paras 8 and 9 of the said judgment, as follows:- “8. The learned counsel for the appellant, at the time of hearing, placed strong reliance on the two decisions of this Court, one in Regional Manager, Rajasthan SRTC v. Ghanshyam Sharma which was also a case of bus conductor carrying passengers without issuing tickets. This Court, in the above case, held that carrying the passengers without tickets amounts to dishonesty or grave negligence and for such misconduct punishment of removal from service is justified. This Court also further observed that the Labour Court was not justified in directing the reinstatement with continuity of service but without back wages. This Court has also relied upon a judgment in Karnataka SRTC v. B.S. Hullikatti. In the said judgment, this Court has held that in such cases where the bus conductors carry passengers without ticket or issue tickets at a rate less 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 inservice because such inaction or action on the part of the conductors results in service because such inaction or action on the part of the conductors results in financial loss to the Road Transport Corporation. This Court has also observed that in cases like the present, orders of dismissal should not be set aside. The learned counsel for the appellant also cited Divisional Controller, N.E.K.R.T.C. v. H. Amaresh. In this case, this Court was considering the CWP No. 14681 of 1993 8 case of misappropriation of a small amount of State Road Transport Corporation's fund by a conductor and held it a grave act of misconduct, which resulted in financial loss to the Corporation. This Court also held that punishment of dismissal from service awarded by the disciplinary authority did not call for any interference by the Labour Court or the High Court and hence the order of reinstatement passed by the High Court was set aside. This Court also in a catena of decisions held that the Tribunal should not sit in appeal over the decision of any employer unless there exits a statutory provision in this behalf. This Court also observed that the High Court gets jurisdiction to interfere with the punishment in the exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed is shockingly disproportionate to the charges proved. 9. In the instant case, the position held by the employee (conductor) is one of faith and trust. A conductor holds the post of trust. A person guilty of breach of trust should be imposed punishment of removal from service. The respondent's conduct is not collecting the requisite fare at the designated place from persons who had travelled were in violation of various regulations contained in the provisions of the Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971. “ In view of the above, the impugned award dated 18.12.1992 cannot be sustained and deserves to be set aside. CWP No. 14681 of 1993 9 In the given facts and circumstances of the case as the workman had performed his duty with the Management, it would be just and appropriate that no recovery of the amount paid to the workman be effected from him. The writ petition is allowed and the impugned award dated 18.12.1992 (Annexure P-1) passed by the Labour Court, Jalandhar, is set aside. ( AUGUSTINE GEORGE MASIH ) JUDGE May 27, 2009 pj Whether referred to Reporters............................Yes/No. CWP No. 14681 of 1993 10