IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 30-8-2011 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.7327 of 2007 The Managing Director, Tamil Nadu State Transport Corporation (Villupuram) Ltd., Kancheepuram Region. ... Petitioner Vs. 1. The Presiding Officer, II Additional Labour Court, Chennai. 2. A. Sundaram ... Respondents This writ petition is filed under Article 226 of the Constitution of India praying this Court to issue a writ of Certiorari calling for the records relating to ID No.301 of 2001 dated 27.7.2006 on the file of the first respondent and quash the same. For Petitioner : Mr.T.Chandrasekaran 1st Respondent : Labour court For 2nd Respondent : Mr.C.Manohar ORDER This writ petition is filed by the Transport Corporation challenging the award of the Labour Court made in I.D.No.301 of 2001 dated 27.7.2006 ordering reinstatement of the second respondent with backwages and continuity of service and all other attendant benefits. 2. The brief facts necessary for disposal of the writ petition are that the second respondent was employed as Conductor in Kancheepuram Depot of the Tamil Nadu State Transport Corporation, who was dismissed from service by order dated 10.2.2000 for the charge of misappropriation of re-sale of tickets used in the previous trips, non-issuance of tickets after https://hcservices.ecourts.gov.in/hcservices/ collecting ticket fare from passengers, and also found to have excess amount in his cash bag on 1.2.1999. The second respondent performed his duty in the bus bearing registration No.TN-31-N-0398 which plies between Kancheepuram and Panapakkam. At about 6.30 p.m. the Checking Inspectors inspected the bus and at that time it was found that the second respondent issued two sold tickets to two female passengers and after collecting the ticket fair from three passengers, he failed to issue tickets to them. He also collected excess amount of ticket fare from three passengers and did not issue tickets. His hand bag was checked and it was found that there was an excess amount of Rs.116.25. 3. The Checking Inspectors sent a report, pursuant to which disciplinary action was initiated against the second respondent. A charge memo was issued on 3.2.1999 and the second respondent submitted his explanation. The said explanation having found not satisfactory, a domestic enquiry was conducted. The second respondent participated in the domestic enquiry. The Enquiry Officer marked documents and recorded evidence and ultimately submitted enquiry report holding that the charges framed against the second respondent were proved. The Enquiry Officer's report was sent to the second respondent and after getting his explanation the management considered all aspects and dismissed the second respondent from service by order dated 10.2.2000. 4. The second respondent raised ID.No.301 of 2001 before the first respondent and the Labour Court passed an award in favour of the second respondent ordering reinstatement with continuity of service, back wages and all other benefits. The said award is challenged in this writ petition contending that the allegation of misappropriation is a serious misconduct; that the conductor of the Transport Corporation are Trustees of the public money and the misappropriation having been noticed by the Checking Inspectors mere non-examination of the passengers cannot be a ground to find fault with the enquiry officer's report; that the Labour Court was not justified in allowing the ID; that the second respondent did not take any effort to examine the passengers in the domestic enquiry; and that the second respondent was also punished for several misconducts on previous occasions. 5. The second respondent filed counter affidavit contending that the allegations relate to irregularities in issue of tickets to passengers, which was found by the Checking Inspectors who made a report to the management and therefore the said allegation is to be proved through substantive and legal evidences. On 1.2.1999 the Checking Inspectors conducted checking twice i.e, at about 14.25 hours and at 18.30 hours and during second inspection, two passengers who were not issued the valid tickets were permitted to https://hcservices.ecourts.gov.in/hcservices/ go scot-free and therefore there is suspicion and the statements made by the passengers were produced before the Enquiry Officer without examining them as witnesses who gave the statements. The Driver of the bus was also not examined and the deposition of the Checking Inspector is only a hearsay evidence and therefore the Labour Court rightly interfered with the punishment. 6. The learned counsel for the petitioner Transport Corporation reiterated the contentions raised in the writ petition and contended that the non-examination of the passengers during the domestic enquiry is not fatal, particularly when the Checking Inspector was examined, who clearly deposed about the misappropriation of the corporation money by the second respondent. The learned counsel also cited a judgment of the Supreme Court reported in 2010 (3) TLNJ 57 (Civil) (U.P.State Road Transport Coporation v. Suresh Chand Sharma) in support of his contentions and also the order of this Court made in W.P.No.50415 of 2006 dated 20.8.2010 wherein a similar proceeding initiated against the Conductor was upheld by this Court. 7. The learned counsel for the second respondent on the other hand submitted that the Labour Court has given a factual finding regarding the conduct of enquiry without examining the passengers who travelled from Panapakkam to Othiyoor and in the absence of their examination, serious allegations cannot be stated to be proved and the Labour Court considered the said aspect and interfered with the order of punishment and the same is just and proper which requires no intereference. The learned counsel also submitted that the judgment relied on by the learned counsel for the petitioner in W.P.No.50415 of 2006 dated 20.8.2010 is factually distinguishable as in that case the Labour Court affirmed the order of dismissal which was not interfered with by this Court and in this case the Labour Court interfered with the punishment and the same cannot be lightly interfered in this writ petition. The learned counsel also cited the decision of the Honourable Supreme Court reported in AIR 1959 SC 1111 (Phulbari Tea Estate v. Workmen); decisions of the Bombay High Court in 1995 (2) LLJ 586 (Sinnar Bidi Ydyog Limited v. Shri Keru Murlidhar Varhade & Others); & 1995 Lab.IC 1496 (C.M.Deshmukh v. Board of Trustees, Port of Bombay); decision of the Punjab & Haryana High Court reported in 1975 Lab.IC 986 (Tarlochan Singh v. State of Punjab); and the decision of the Andhra Pradesh High Court reported in 2004 ALT 656 (Assistant Director of sericulture, Shadnagar, Mahaboobnagar District v. G.lalitha Devi and another) in support of his contention and argued that if the writ petition is allowed, the second respondent's rights will be seriously prejudiced as he is now aged only 52 year and after the order of reinstatement the petitioner is getting 17B wages from 23.2.2007. https://hcservices.ecourts.gov.in/hcservices/ 8. I have considered the rival submissions of the learned counsel for the petitioner as well as the learned counsel for the second respondent. 9. The charges levelled against the second respondent are that during the check conducted by the Checking Inspectors on 1.2.2009 at about 6.30 p.m., while the petitioner was performing duty as a Conductor in the bus bearing registration No.TN-01-N- 0386 which plies between Kancheepuram and Panapakkam, it was found that the second respondent had issued already sold tickets to two female passengers and after collecting the ticket fare from three passengers the second respondent failed to issue tickets to them and he had collected excess amount of ticket fare from three other passengers and did not issue tickets to them and when his cash bag was checked it was found that there was excess amount of Rs.116.25. 10. Domestic enquiry was conducted by the management and during the domestic enquiry all the charges were found proved. The petitioner also participated in the domestic enquiry and considering the past record of service of the second respondent, which was also put on notice, the second respondent was dismissed from service. 11. In the domestic enquiry the Checking Inspector viz., M.Gunasekaran was examined as MW-1. The said Checking Inspector was cross examined by the second respondent, who in his deposition stated that the particular bus was checked twice on 1.2.1999; that there is procedure for checking any bus at any time and the bus can be checked any number of times; that two women passengers were not having tickets for their travel; that the statements from the passengers were recorded by the driver as the said passengers reported that they are illiterate; and that the alleged motive against the second respondent raised against the checking Inspector was denied specifically. The enquiry report was marked as Ex.W-7. On perusal of the said enquiry report as well as the deposition given by the Checking Inspector it is evident that the charges levelled against the second respondent are proved. 12. The main contention of the second respondent before the Labour court and this Court is that the passengers who were not possessed of tickets or who were issued tickets for lower denomination have not been examined. A similar contention was considered by the Honourable Supreme Court in the decision reported in 2010 (3) TLNJ 57 (Civil) (cited supra). In the said case it was held that the Checking Inspector, who inspected the bus was examined during the domestic enquiry and was availed for https://hcservices.ecourts.gov.in/hcservices/ cross examination to the Conductor. The non-examination of the passengers travelled in the bus will not vitiate the enquiry. In the said case the Labour Court dismissed the claim petition of the workmen. However, the High Court set aside the said order of the Labour Court which was found fault with by the Honourable Supreme Court and ordered restoration of the award passed by the Labour Court. In paragraphs 13, 20 to 22 the supreme Court held thus, "13. In State of Haryana & Anr. Vs. Rattan Singh AIR 1977 SC 1512, this Court has categorically held that in a domestic enquiry, complicated principles and procedure laid down in the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872 do not apply. The only right of a delinquent employee is that he must be informed as to what are the charges against him and he must be given full opportunity to defend himself on the said charges. However, the Court rejected the contention that enquiry report stood vitiated for not recording the statement of the passengers who were found travelling without ticket. The Court held as under: "We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the re-evaluation of the evidence on the strength of co- conductor's testimony is a matter not for the court but for the administrative tribunal. In conclusion, we do not think courts below were right in over-turning the finding of the domestic tribunal." 20. We do not find any force in the submissions made by Dr.J.N.Dubey, learned Senior Counsel for the employee that for embezzlement of such a petty amount, punishment of dismissal could not be justified for the reason that it is not the amount embezzled by a delinquent employee but the mens rea to mis-appropriate the public money. 21. In Municipal Committee, Bahadurgarh Vs. Krishnan Bihari & Ors., AIR 1996 SC 1249, this Court held as under:- "In a case of such nature - indeed, in cases involving corruption - there cannot be any other punishment than https://hcservices.ecourts.gov.in/hcservices/ dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant." Similar view has been reiterated by this Court in Ruston & Hornsby (I) Ltd. Vs. T.B. Kadam, AIR 1975 SC 2025; U.P.State Road Transport Corporation Vs. Basudeo Chaudhary & Anr., (1997) 11 SCC 370; Janatha Bazar (South Kanara Central Co-operative Wholesale Stores Ltd.) & Ors. Vs. Secretary, Sahakari Noukarara Sangha & Ors., (2000) 7 SCC 517; Karnataka State Road Transport Corporation Vs. B.S.Hullikatti, AIR 2001 SC 930; and Regional Manager, R.S.R.T.C. Vs. Ghanshyam Sharma, (2002) 10 SCC 330. In Divisional Controller N.E.K.R.T.C. Vs. H. Amaresh, AIR 2006 SC 2730; and U.P.S.R.T.C. Vs. Vinod Kumar, (2008) 1 SCC 115, this Court held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption/misappropriation, the only punishment is dismissal. 22. Thus, in view of the above, the contention raised on behalf of the employee that punishment of dismissal from service was disproportionate to the proved delinquency of the employee, is not worth acceptance. Appeal preferred by the Corporation i.e. Civil Appeal No.3086 of 2007 is allowed. The judgment and order of the High Court dated 7.9.2005 is hereby set aside and the Award of the Labour Court dated 28.4.1995 is restored. The appeal preferred by the employee i.e. Civil Appeal No.3088 of 2007 is hereby dismissed. No order as to costs." (Emphasis Supplied) The said decision was followed by me in W.P.No.50415 of 2008 order dated 20.8.2010 wherein also I have declined to accept the similar contention and upheld the order of the Labour Court dismissing the claim petition. 13. The Judgment of the Supreme Court reported in AIR 1959 SC 1111 (cited supra) is with reference to the principles of https://hcservices.ecourts.gov.in/hcservices/ natural justice while conducting enquiry. The decision of the Division Bench of the Bombay High Court reported in 1995 (2) LLJ 586 (cited supra) is in respect of interference with regard to the decision of the Labour Court. The Andhra Pradesh High Court decision reported in 2000 (4) ALT 565 (supra) is with reference to reappraisal of evidence in writ proceedings. In the Division Bench decision of the Punjab and Haryana High Court reported in 1975 Lab.IC 986 (supra) the punishing authority not dealt with the objections and chose to terminate a Government servant, which was held illegal. The decision reported in 1995 Lab.IC 1496 (supra) is with reference to the charge of theft which was proved by relying hearsay evidence alone. The said decisions are factually distinguishable. 14. In this case, the Labour Court has given a finding that non-examination of the passengers during the domestic enquiry vitiated the proceedings and therefore interfered with the punishment by ordering reinstatement with backwages and other benefits. The said reasoning given by the Labour Court is contrary to the decision of the Honourable Supreme Court cited supra. Hence the findings given by the Labour Court setting aside the dismissal order is to be treated as a perverse finding. If the finding given by the Labour Court is found as perverse, this Court is entitled to declare the award as invalid. The petitioner was also previously punished for misconduct. The charges framed against the petitioner being serious in nature, namely not issuing tickets, issuing tickets already sold, etc. The second respondent having lost the confidence of the management to continue as conductor, the dismissal order passed by the management is just and proper. The Labour Court cannot order reinstatement of the second respondent. Hence the award passed by the Labour Court is liable to be set aside. 15. During pendency of the writ petition, an interim stay was granted on condition to deposit the entire amount awarded towards backwages. The second respondent was permitted to withdraw 50% of the amount deposited. On 14.2.2008 interim direction was also issued to pay 17B wages from 23.2.2007 and the second respondent is getting 17B wages till date. Taking note of the interim orders already passed and the second respondent having received and spent the amount, it may not be proper in directing the second respondent to return the amount so far received. Hence the petitioner management is permitted to withdraw the arrears of backwages deposited, which is yet to be released to the second respondent. https://hcservices.ecourts.gov.in/hcservices/ The writ petition is allowed with the above directions. No costs. Sd/- Deputy.Registrar. /true copy/ Sub Asst.Registrar. vr To 1. The Presiding Officer, II Additional Labour Court, Chennai. 2. The Section Officer VR Section, High Court, Madrs 1 cc to M/s.C. Manohar, Sr. 54310 W.P.No.7327 of 2007 RV (CO) kk 15/9 https://hcservices.ecourts.gov.in/hcservices/