U.P. STATE ROAD TRANSPORT CORPORATION - v.

VINODKUMAR

DECEMBER 6, 2007

(ASHOK BHAN AND D.K. JAIN, JJ.]

' Labour Law:

c Workman-Bus Conductor-Inquiry against for not giving tickets to passengers though charging from them-Removal from service-Labour Court holding the punishment to be harsh and substituting the same by stoppage of one increment without cumulative effect and directing reinstatement with full back wages-High Court

D reducing the back wages to 50ro-Held: Since workman did not challenge correctness and legality of inquiry conducted, it was not open to Labour Court to go into findings of Inquiry Officer regarding }

misconduct committed by delinquent-RemovaVdismissal from service is appropriate punishment for an employee found guilty of

E misappropriation of funds-Courts should be reluctant to reduce punishment on misplaced sympathy for such an employee.

The respondent-workman, a bus conductor, was removed from service after an inquiry into the charge, inter alia, that he had /" collected the fare from 8 passengers in his bus, but did not give them

F the tickets. On an industrial dispute being raised, the matter was referred to the Labour Court. The workman did not press the legality ~- and fairness of the inquiry proceedings and confined his case only to the conclusions reached by the Inquiry Officer and the quantum of punishment. The Labour Court, however, held that the punishment

G of removal imposed upon the workman was excessive in comparison to the charges levelled against him. It substituted the punishment of removal by stoppage of one increment without any cumulative effect and directed his reinstatement with full back wages. In the w1it petition filed by the workman, the High Court uphold the order

H 1018

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U.P.STATEROADTRANSPORTCORPORATIONv. 1019

VIN OD KUMAR [ASHOK BHAN, J.]

passed by the Labour Court, but reduced the back wages to 50%, Aggrieved, the Department filed the instant appeal.

Allowing the appea~ the Court

HELD: 1. Since the respondent had not challenged the correctness, legality or validity of the inquiry conducted, it was not open to the Labour Court to go into the findings recorded by the Inquiry Officer regarding the misconduct committed by the respondent. This Court in a number of judgments has held that the punishment ofremoval/dismissal is the appropriate punishment for an employee found guilty of misappropriation of funds and the Courts should be reluctant to reduce the punishment on misplaced sympathy fora workman; that, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal; that, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfedng with the quantum of punishment.

(Para 10] (1022-B-D]

Divisional Controller, N. E. K. R. TC. v. H Amaresh, (2006] 6 SCC 187, relied on.

1.2. The judgment of the High Court as well as the order passed by the Labour Court are set aside. Consequently, the order passed by the disciplinary authority dismissing/removing the respondent from service is restored. [Para 11] [1023-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5660 of2007.

From the Judgment and final Order dated 03.08.2005 of the High Court ofUttaranchal at Nainital in Writ Petition No. 603(M/S) of 2002.

Pradeep Misra for the Appellant.

Dinesh Kumar Garg for the Respondent.

The Judgment of the Court was delivered by

BHAN, J. I. Leave granted

2. This appeal is directed against the final judgment and order dated 3.8.2005 passed by the High Court ofUttaranchal at Nainital in Writ Petition No. 603 (MIS) of2002. By the impugned order, the High Court upheld the findings recorded by the Labour Court to the effect that the punishment of removal imposed upon the respondent was excessive in B comparison to the charges levelled against him. The High Court while maintaining the findings recorded by the Labour Court that the punishment of removal was excessive in comparison to the charges levelled against the workman, reduced the back wages to 50%.

3. Respondent-workman was appointed as a Conductor in the U.P.

C State Road Transport Corporation (the appellant herein) on 26.9.1991.

Respondent was conducting the bus on Kalsi-Chhani route, which was checked and, on inspection it was found that out of 45 passengers, 28 passengers from Kalsi to Chhani were without ticket The Inspecting T earn found that the Conductor had already recovered fare from 8 such without- D ticket passengers. That he had issued 6 tickets which were not in seriatim and their original copies were not completely filled. That entry of these tickets was not made in the Way Bill. The inspecting tean1 made an endorsement to this effect on the Way Bill and got the signatures of respondent as a proof thereof. On the report of the inspecting team, E charge-sheet was issued to the respondent and he was placed under suspension. Later on, respondent was reinstated in service subject to the final result of the disciplinary proceedings initiated against him.

4. The Enquiry Officer, after holding the enquiry, submitted his report F wherein it was held that the charges were partially proved against the respondent. The enquiry report was considered by the Punishing Authority, which disagreed with certain conclusions arrived at by the Enquiry Officer.

After recording detailed reasons for disagreement with the conclusions arrived at by the Enquiry Officer, the Punishing Authority issued a showcause notice to the respondent enclosing therewith a copy of the enquiry G report. It was provided in the said notice that the workman can inspect the record or obtain the copy thereof, ifhe so desires. Respondent filed its reply to the said show-cause notice. Considering the entire material on record including the reply to the show-cause notice submitted by the respondent, Punishing Authority passed the detailed order, removing the H

U.P. STATEROADTRANSPORTCORPORATION v. 1021

VINODKUMAR[ASHOKBHAN, J.]

respondent from service. Balance salary for the period of suspension was A also forfeited.

5. Respondent raised an industrial dispute. The State Government referred the following dispute to the Labour Court, Dehradun for adjudication:-

"Whether the termination of the services of the applicant/ workman Shri Vinod Kumar S/o Shri Ravi Ram Singh, Conductor by the employers from 31.07.1999 is unjustified and/or illegal? If so, to which benefit/compensation the applicant/workman is entitled and to what extent?"

6. Both the parties filed written statement, rejoinders and documents before the Labour Court.

7. Respondent did not press the legality and fairness of the enquiry proceedings and confined his case only to the conclusions reached by the D Enquiry Officer as well as the quantum of punishment.

8. Labour Court, without appreciating the fact that in the absence of challenge to the legality or fairness of the inquiry report the Court should be reluctant to either interfere with the finding recorded by the Punishing Authority or the quantum, held that the charge of misappropriation has E not been proved against the respondent and, thus, punishment of removal from service is harsh. It substituted the punishment of removal by stoppage of one increment without any cumulative effect and directed reinstatement of respondent with full back-wages. The said award was published. The appellant challenged the said award by filing Writ Petition No. 603 (Ml F

S) of2002 before the High Court ofUttaranchal at Nainital. The High Court, without appreciating the fact that once it was held that respondent was carrying passengers without ticket and had also recovered fare from 8 passengers which was a serious misconduct, upheld the order passed by the Labour Court. It agreed with the findings recorded by the Labour G Court that punishment inflicted upon the respondent was excessive and disproportionate to the charges levelled/proved, but reduced the backwages to 50%. The award of the Labour Court was modified to that extent.

9. Counsel for the parties have been heard.

I 0. As stated in the preceding paragraphs, the respondent had confined his case only to the conclusions reached by the Enquiry Officer as well as the quantum of punishment. Therefore, since the respondent B had not challenged the correctness, legality or validity of the enquiry • conducted, it was not open to the Labour Court to go into the findings recorded by the Enquiry Officer regarding the misconduct committed by the respondent. This Court in a number of judgments has held that the punishment of removal/dismissal is the appropriate punishment for an employee found guilty of misappropriation of funds; and the Courts should C be reluctant to reduce the punishment on misplaced sympathy for a workman. That, there is nothing wrong in the employer losing confidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of D punishment. Without burdening the judgment with all the judgments of this >

Court on this point, we may only refer to a recent judgment in Divisional Controller, NE.KR.TC. v. H Amaresh [2006] 6 SCC 187, wherein this Court, after taking into account the earlier decisions, held in para 18 as under:-

"In 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 the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is 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 the Corporation's 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

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U.P. STATEROADTRANSPORTCORPORATION v. 1023

VINOD KUMAR [ASHOKBHAN, J.]

judgment in Karnataka State Road Transport Corporation v. A

B.S. Hullikatti [2001] 2 SCC 574 was also relied on in this judgment among others. Examination of the passengers of the 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 B 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 C 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 quantum. "

[Underlining is ours] D

11. Respectfully agreeing and following the aforesaid decision of this Court, we accept this appeal and set aside the judgment of the High Court as well as the order passed by the Labour Court. Consequently, the order passed by the Punishing Authority dismissing/removing the respondent from E service is restored. No costs.

RP.

Appeal allowed.