Case: Divisional Controller, N.E.K.R.T.C Vs. H. Amaresh

3. The respondent joined the Corporation as a conductor. While he was on duty, the appellant-Corporation noticed that he was under the influence of alcohol and did not issue tickets to the passengers. The appellant-Corporation issued Articles of Charge to the respondent-conductor and he replied to the same.  4. The charges, which are grave in nature, are enumerated as below:  1. That it is reported that you are in a habit of consuming alcohol while on duty and created bad scene of the Corporation among the public by spoiling the image of the Corporation apart from financial loss to the Corporation. (not proved)  2. That on 27.12.90 you were booked on Devadurga Hosur N/o Schedule No.16/B. 16 along with Sri. Allapa driver No. 2022 but you were not able to discharge duties due to intoxication and after having consumed alcohol and you are not able to perform the schedule duty. In place another conductor had to be arranged in spite of acute shortage of conductor. (not proved)  3. Further the passenger of schedule No. 47 B/Hospet, 16B, Hosur N/o. were unnecessarily detained at bus stand from 21-15 hours to 22-30 hours, and you went away without getting dispatched from the controller. (not proved)  4. That on 28.12.90 after completion of the above said duties at about 14 hours, the KSRTC cash held by you was checked and found Rs. 360-95 as short and you were found in drunken condition. (proved)  Not satisfied with the reply, the appellant-Corporation conducted the enquiry in accordance with the principles of natural justice and Conduct & Discipline Regulations. The Inquiry Officer found the charges levelled against the respondent proved. A true copy of the Inquiry Report dated 11.12.1991 has been filed and marked as Annexure-P1. It is useful to reproduce the Inquiry Officers report in paras 4 and 5"4. That act of mis-appropriation noticed after checking the way bill and many irregularities, namely failed to show the sale of tickets and over writing. Several places not shown the number of passengers and trip wise collection not mentioned target of revenue was Rs. 1250/- but the delinquent deposit sum of Rs. 638/75 paise. Lastly cash was remitted very late; hence these are the imputations of statement. The M.W.1 has given the detail as to the manner how he notices the irregularities as violations and misconduct having found in drunken state on duty. In support he has got marked Ex. M.1 to 4, the documents which have not been refuted nor tested the veracity of witness. I have carefully examined the evidence of M.W.1 and the documents marked fully reveals that the delinquent has committed not only misconduct but misappropriated the cash by short remittance. I see no reason why the testimony of M.W.1 should be discarded when delinquent has failed to test the statement by cross-examination.  5. In reply by way of written in defense the delinquent has simply denied the charges saying as baseless.  On case full consideration of all the aspects of case unhesitantly. I can say that the delinquent has not created a doubt of evidence led by management and I hold that management has fully brought home the charges. There is no reason to discard the testimony of M.W.1, accordingly I hold that all the charges have been proved by the management. Hence this report."5. The Disciplinary Authority, after perusing the details of the inquiry proceedings, replied to the respondent to the Articles of Charge and other available material, agreed with the findings of the Inquiry Officer and dismissed the respondent from service. Aggrieved by the order of dismissal, the respondent raised an industrial dispute under Section 10(4) of the Industrial Disputes Act, 1947 before the Labour Court, Gulbarga to which the Corporation replied.  6. The Presiding Officer, Labour Court, by his order dated 30.08.1996, while deciding the preliminary issue regarding the validity of inquiry proceedings held the same to be illegal and invalid in view of the denial of reasonable opportunity to the respondent.  7. The Labour Court, by its Award dated 17.12.1996, held that out of 4 charges levelled against the respondent, the 4th charge regarding pilferage against the respondent stood proved. As regards punishment, dismissal from service was substituted with reinstatement and 75% backwages. Aggrieved by the award dated 17.12.1996, the appellant-Corporation filed the writ petition before the High Court of Karnataka at Bangalore. The learned Single Judge, by his order dated 11.09.2000, upheld the findings of the Labour Court but modified the back-wages and reduced it to 25%.  8. Aggrieved by the order of the learned Single Judge, the Corporation filed an appeal before the Division Bench of the Karnataka High Court. The Division Bench, by the impugned judgment and order, affirmed the findings of the Labour Court and of the learned Single Judge with regard to reinstatement and set aside the findings on back wages. Hence the special leave petition was filed by the Corporation and notice was ordered on 17.11.2003. On 03.12.2004, none appeared on behalf of the respondent and leave was granted.

Reasoning:
The High Court and the Labour Court failed to consider all the cogent evidence and documents produced by the Corporation before them. The Labour Court has miserably erred by not considering that the respondent was in a drunken condition when there was no denial on the part of the workmen to that effect. By not considering this, the High Court has also erredIn the instant case, the mis-appropriation of the funds by the delinquent employee was only Rs. 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who mis-appropriated funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence as the primary factor and not the amount of money mis-appropriated 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 mis-appropriating a Corporations 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 State Road Transport Corpn. Vs. B.S. Hullikatti, (2001) 2 SCC 574  was also relied on in this judgment among others. Examination of passengers of 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 mis-conduct 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 action or inaction of his was bound to result in financial loss to the appellant irrespective of the quantumIn this context, it is useful to refer to the findings of the domestic tribunal which has already been extracted above in paragraph (supra). Before the Inquiry Officer Exh. M1-M4 were marked, which have not been refuted nor was the veracity of witness decided. The Inquiry Officer has stated that he has carefully examined the evidence of MW.1 and the documents marked which fully reveals that the delinquent has committed not only misconduct but misappropriated the cash. MW 1 was not cross examined by the delinquent employee. In reply, the delinquent has simply denied the charges stating it baseless. The Inquiry Officer, on a careful consideration of all aspects of the case, unhesitantly held that the delinquent was guilty of the charges and that all the charges have been provedIn the instant case, even though charge No.4 has been proved beyond any doubt, the Labour Court taking a lenient and sympathetic view, passed certain directions which were modified by the learned Single Judge and of the Division Bench. While entertaining this special leave petition, this Court has only ordered notice to the respondent. The order of the High Court and of the Division Bench has not been stayed even though the Division Bench observed that having regard to the gravity of the charges proved against the respondent, it would be in the interest of justice to modify the order passed by the learned Single Judge to the extent he has directed the appellant-Corporation to pay 25% back wages. The Division Bench deleted the direction in regard to the payment of back wages but retained the order in regard to the reinstatement. The said order is ex-facie illegal and contrary to the principles laid down by the various decisions of this Court which have been referred to in paragraphs supra and also on the proved facts and circumstances of the case. Having accepted all the facts that the charges of short remittance was proved and yet the learned single Judge and the learned Judges of the Division Bench proceeded to pass an order ordering reinstatement which clearly goes against the mandate of the various judgments of this Court. In our view, even short remittance amounts to mis-conduct and, therefore, applying the rulings of this Court, the impugned order ought not to have been passed by the Division Bench ordering reinstatement. We, therefore, have no hesitation to set aside the order passed by the learned Judges of the Division Bench and restore the order of dismissal of the respondent from service. It is stated that pursuant to the order of the Labour Court the respondent was reinstated in service. Since there was no stay granted by this Court the respondent had continued in service of the Corporation. In view of the law laid down by this Court and of the facts and circumstances of this case, the respondent, in our opinion, has no legal right to continue in service any further. We, therefore, direct the appellant-Corporation to immediately discharge the respondent from service. However, we make it clear that the salary paid to the respondent and other emoluments during this period shall not be recovered from the respondent. We also make it further clear that in view of the order of dismissal the respondent shall not be entitled to any further emoluments