Madras High Court
Ranganathan vs The Presiding Officer on 23 August, 2018
Author: R.Suresh Kumar
Bench: R. Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 21.12.2017
Pronounced on : 23.08.2018
CORAM
THE HONOURABLE MR.JUSTICE R. SURESH KUMAR
W.P.No.38516 of 2002
Ranganathan ... Petitioner
Vs
1. The Presiding Officer
Labour Court,
Vellore.
2. The Management of
Tamil Nadu State Transport Corporation Ltd.,
(Villupuram Division-2)
Vellore. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India, seeking for a Writ of Certiorarified Mandamus to call for the records relating to the award, dated 23.08.2001 passed by the first respondent in I.D.No.6/97, by which the first respondent has dismissed the Industrial Dispute regarding the petitioner non-employment and declined to grant any relief and quash the same and for a direction to the second respondent to pay the petitioner wages and other attendant benefits from the date of dismissal to the date of his superannuation and also to pay the petitioner pension and other terminal benefits and award costs.
For Petitioner : Mr.V.Ajoy Khose
For Respondents : R1 - Court
Mr.P.Paramasiva Doss for R2
O R D E R
The prayer sought for in this writ petition is for issuance of a writ of certiorarified mandamus, to call for the records relating to the award, dated 23.08.2001 passed by the first respondent in I.D.No.6/97, by which the first respondent has dismissed the Industrial Dispute regarding the petitioner's non-employment and declined to grant any relief and quash the same and for a direction to the second respondent to pay the petitioner wages and other attendant benefits from the date of dismissal to the date of his superannuation and also to pay the petitioner pension and other terminal benefits.
2. The short facts which are required to be noticed for the disposal of this writ petition are as follows.
(i) The petitioner joined service at the second respondent corporation as conductor on 26.11.1981. When the petitioner was working as conductor at Gudiyattam Depot, he was allotted duty in Route No.84 B/C on 04.01.1993 in the bus bearing No.TCB 3396, running between Pernampet and Vellore. When the bus was taken on trip at 4.30 p.m from Pernampet, the petitioner had issued tickets to all passengers who boarded at Pernampet and at various stoppings thereafter.
(ii) Since it was a temple festival day, there had been a big crowd and heavy rush in the bus and when the bus was overloaded already with about 80 passengers boarded on the bus at Gudiyattam, the petitioner started issuing tickets who boarded at Gudiyattam.
(iii) Since a private bus bearing the name VTM bus service was having a time just behind the petitioner's bus and the said private bus was trying to overtake the bus of the second respondent corporation, where the petitioner was working as conductor on that day, in order to get more passengers, the petitioner was continuously issuing tickets without stopping the bus before the stage to close the invoice.
(iv) While so, a group of passengers consisting of 10 persons boarded at Gudiyattam Railway station stop and asked for 10 tickets to Pallikonda and paid Rs.50. Since the fare for a person from Gudiyattam Railway station stopping to Pallikonda was one rupee, the petitioner has taken Rs.10/- and also paid back Rs.40/- to the passenger. He further claimed that, when he was about to issue tickets to them, the checking officials intercepted the bus and they claimed to have found that 10 passengers who boarded at Gudiyattam Railway station stop and travelled till Pallikonda temple, which was about 3 kms, have been got down at the stop without getting the tickets, even though they claimed to have paid a sum of Rs.50/- and got back Rs.40/- from the petitioner.
(v) Therefore the checking team found that, the petitioner had not issued tickets, though after having collected the amount and paid back change to 10 passengers and also he had not closed the invoice for 7th and 8th stage. Therefore the checking team, after having obtained a statement from one of the passenger and also the driver of the bus, had prepared a report and filed the same before the respondent corporation. Pursuant to the said report given by the checking team, a charge memo was prepared and was served on the petitioner by initiating a disciplinary proceedings.
(vi) The following four charges had been framed against the petitioner :
"1/ ePh; 4/1/93 md;W gzpapypUf;ifapy; Foahj;jj;jpy; (R.S) ,Ue;J gs;spbfhz;lh nfhtpypy; ,w';fpr; brd;w 10 ngh;fs; ml';fpa FGtplk; gazf; fl;lzkhf 10 x U:/1/20 gzk; bgw;Wf;bfhz;L gazr;rPl;L tH';fhky; ,Ue;Js;sPh;/ 2/ fl;lzepiy vz; 8 kw;Wk; 7 g{h;j;jp bra;ahky; ,Ue;Js;sPh;/ 3/ fHf tUthia ifahly; bra;jPh;/ 4/ tR{ypy; rPl;L gwpKjYf;F gpd;g[ U:/2/65 Fiwthf itj;jpUe;jPh;/"
(vii) Pursuant to the charge memo, show cause notice was issued. Thereafter, enquiry officer was appointed and domestic enquiry was conducted on various dates, where the petitioner has also participated in the enquiry. Ultimately on 13.08.1993, enquiry officer gave his report and findings that the charges framed against the petitioner were proved.
(viii) Thereafter second show cause notice was given to the petitioner on 10.10.1993, which was replied by giving explanation by the petitioner on 26.10.1993. Considering the enquiry officer's report and its findings and explanation given by the petitioner to the second show cause notice and taking into account all other aspects, the second respondent Corporation passed an order of dismissal on 18.09.1995 against the petitioner.
(ix) As against the said order of dismissal, the petitioner raised an Industrial Dispute before the first respondent Labour Court in I.D.No.6 of 1997, after having obtained the failure report from the Conciliation Officer. Before the Labour Court, counter statement was filed by the second respondent Corporation and the Labour Court, after having considered the claim and counter claim of the parties and the evidences produced before the Labour Court, had come to a conclusion that, the punishment awarded against the petitioner was proper and not excessive and therefore, confirming the same, the impugned award, dated 23.08.2001 was passed. As against the impugned award, the present writ petition has been filed.
3. I have heard Mr.V.Ajoy Khose, learned counsel appearing for the petitioner and Mr.P.Paramasiva Doss, learned standing counsel appearing for the second respondent.
4. The learned counsel appearing for the petitioner has contended that, the domestic enquiry conducted by the second respondent corporation was not proper and therefore the finding given in this regard by the Labour Court, accepting the domestic enquiry as if that, it was held without violating the principles of natural justice, was not correct. The learned counsel would also submit that, though statements claimed to have been obtained from one of the passengers and also the driver of the bus, they had not been examined by the enquiry officer during the domestic enquiry and therefore, the said statement alleged to have been given by them could not have been corroborated and therefore the enquiry officer ought not have concluded that the charges against the petitioner were proved.
5. The learned counsel for the petitioner would also submit that, since on the said date there was a temple festival, there had been an unprecedented crowd in that route, as the bus has already boarded with more than 80 passengers and also in order to issue tickets quickly to all the passengers and also to avoid the private bus, which was following the second respondent corporation bus very closely, to take more passengers, the petitioner had been continuously issuing tickets without closing the stage and these aspects had not been considered either by the enquiry officer or by the Labour Court.
6. In this regard, the learned counsel would further argue that, the bus was stopped by the checking team at a place, which was almost near to the temple where the festival was fixed on that day, therefore, the said 10 passengers got down immediately and started walking. Had the bus was not intercepted by the checking team at that place, they would not have got down and only at the regular stop, they would be getting down, before which tickets would have been given to them by the petitioner.
7. This sequence of events have not been considered in proper perspective by both the enquiry officer as well as the Labour Court and therefore the findings given by the enquiry officer as well as the Labour Court stating that the charges framed against the petitioner in this regard are proved cannot be accepted.
8. The learned counsel for the petitioner also argued that, assuming that the petitioner has not issued tickets to 10 passengers at the time of checking team intercepted the bus, for the said lapse on the part of the petitioner, the punishment of removal of service inflicted against him by the second respondent corporation was not proportionate and shockingly disproportionate. Therefore the Labour Court ought to have exercised its power by modifying the said punishment, but the Labour Court miserably failed. Hence, the impugned award is liable to be interfered with.
9. In support of his contention, the learned counsel appearing for the petitioner has relied upon the following decisions :
(1) U.P.S.R.T.Corpn., v. M.K.Mishra, 2000 (2) L.L.N.399 (2) B.C.Chaturvedi v. Union of India, 1997(4) L.L.N. 65 (3) Kuldeep Singh v. Commr. of Police & Ors., 1999(1) LLJ 604 (4) Commr. of Police v. Jai Bhagwan, (2011) 6 SCC 376 (5) T.N.State Transport Corporation (Villupuram) Ltd., v. Presiding Officer, 2016-II-LLJ 594 (Mad)
10. Per contra, Mr.P.Paramasiva Doss, learned standing counsel appearing for the second respondent would submit that, four charges were framed against the petitioner, show cause notice with charge memo had been given to the petitioner. Thereafter enquiry officer was appointed, enquiry was properly conducted, where full opportunity was given to the petitioner. Thereafter, on the basis of the enquiry officer's report before taking a decision, copy of the enquiry officer's report along with the second show cause notice was given to the petitioner and after getting explanation from the petitioner, having considered all aspects, the disciplinary authority had accepted the findings given by the enquiry officer. Since the petitioner had already been subjected to such kind of disciplinary proceedings for similar set of charge, where also he had been punished, taking all aspects, the disciplinary authority decided to inflict the maximum punishment of removal from service, since the charge proved against the petitioner was misappropriation of corporation money.
11. The learned standing counsel appearing for the second respondent would further submit that, the said aspect has been considered in proper perspective by the Labour Court, where the following findings have been given :
"nkw;fz;l Mtz';fis ghprPypj;J ghh;f;Fk;nghJ Kiwahf mwptpg;g[ mDg;gg;gl;Ls;sJ vd;gij mwpaKofpwJ/ 23/7/93 md;W ep/j/rh/2 Mf fhl;lg;gl;Ls;s jpU/n$hrg; vd;gth; tprhuiz bra;ag;gl;L cs;shh; vd;gija[k;. mtiu kDjhuh; FWf;Ftprhuiz bra;Js;shh; vd;gija[k; nkw;fz;l kDjhuh;jd; jug;gpy; rhl;rpakspj;J kDjhuh; FWf;F tprhuiz bra;ag;gl;Ls;shh; vd;gija[k;. kDjhuh; jug;gpy; ntW rhl;rpak; cs;sjhf bjhptpf;fg;gltpy;iy vd;gija[k; mwpaKofpd;wJ/ tprhuiz mjpfhhpaplk; tHf;fwp"iu epakdk; bra;J bfhs;snth. rfCHpaiu cld; itj;Jf;bfhs;snth kDjhuh; mDkjp nfhhpajhf mwpa ,aytpy;iy/ cly;epiy rhpapy;yhj fhuzj;jpdhy; tprhuiz xj;jp itf;fg;gl;Ls;sJ vd;gija[k; mwpaKofpd;wJ/ vdnt ,e;epiyapy; kDjhuh; KGikahf cs;Jiw tprhuiz eltof;ifapy; fye;J bfhz;Ls;shh; vd;gija[k; vt;tpj FiwghLfs; cs;sjhft[k; bjhptpf;fg;gltpy;iy vd;gija[k; mwpa Kofpd;wJ/ vdnt cs;Jiw tprhuiz eltof;if ,aw;if epajpf;Fl;gl;L elj;jg;gltpy;iy vd;W TWtJk; kDjhuUf;F nghjpa re;jg;gkspf;fg;gltpy;iy vd;W TWtJk; Vw;fj;jf;fJ ,y;iybad;Wk; nkw;fz;l cs;Jiwtprhuiz eltof;if ,aw;if epajpf;Fl;gl;L. rl;lg;go elj;jg;gl;Ls;sJ vd;Wk; ehd; jPh;khdpf;fpnwd;/ /// nkw;fz;l tpsf;fj;jpd; mog;gilapy; ghprPypj;J ghh;f;Fk;nghJ. gazr;rPl;L th';ftpy;iy vd;gJ kDjhuuhy; xg;g[f;bfhs;sg;gLfpwJ vd;gij mwpaKofpwJ/ /// gazf; fl;lzk; tR{ypj;J ghf;fp rpy;yiu bfhLj;Js;s epiyapy; of;bfl;l fpHpj;J bfhLg;gJ vd;gJ fz; ,ikf;Fk; neuj;jpy; bra;a[k; gzpahFk;/ nkw;go fz; ,ikf;Fk; neuj;jpy; bra;af;Toa braiy of;bfl; ghpnrhjfh; ghpnrhj;jpf;Fk; tiu of;bfl; bfhLf;fhky; ,Ue;J ,Ug;gjpy; ,Ue;J ntz;Lbkd;nw of;bfl; bfhLf;fhky; ,Ue;Js;shh; vd;gij mwpa Kofpd;wJ/ /// of;bfl; bfhLj;Jtpl;L gzj;ij th';fpf; bfhz;lhYk;. gzj;ij bgw;Wf;bfhz;L ghf;fp gzj;ij bfhLj;Js;s epiyapy; of;bfl; bfhLf;fhky; ,Ue;J ,Ug;gJ ifahly; vd;nw fUj ,aYk;/ vdnt U:/50-- I bgw;Wf;bfhz;L gs;spf;bfhz;lh nghf ntz;Lbkd Twpdhh;fs; vd;Wk; jhDk; gzj;ij bgw;Wf;bfhz;L rpy;yiuahd U:/40--I mth;fSf;F bfhLj;jjhft[k; Twpa[s;s epiyapy; me;j rpy;yiua[ld; nrh;e;nj of;bfl; bfhLj;jpUf;f tha;g;g[s;sJ/ vdnt of;bfl; tH';ftpy;iy vd;w epiyapy; mit ifahly; vd;nw fUj ,aYk;/ of;bfl; ghpnrhjfh; jplObud;W te;Jtpl;lhh; vd;whYk; mth;fs; ,w';Fk; bghGjhtJ of;bfl; th';fpf; bfhz;L ,w';Fk;go elj;Jdh; TwpapUf;f ntz;Lk;/ mt;thW of;bfl; th';fpf;bfhz;L ,w';Fk;go Twpajhf kDjhuh; tha;bkhHp rhl;rpakspf;ftpy;iy/ of;bfl; bfhLg;gjw;F Kd; ,w';fptpl;lhh;fs; vd;wJ kDjhuh; Twpa[s;s epiyapy; nkw;fz;l U:/50--bgw;Wf;bfhz;lJk; ghf;fp rpy;yiu bfhLj;Jk; ngUe;J ve;j ,lj;jpy; tUk;nghJ ele;jJ vd;W bjspthf rhl;rpakspf;ftpy;iy/ ,e;epiyapy; ifahly; bra;antz;Lbkd;w vz;zj;Jld; kDjhuh; of;bfl; bfhLf;fhky; ,Ue;Js;shh; vd;gij mwpaKofpd;wJ/ ,e;j rk;gtj;jpy; rk;ke;jg;gl;l eguhd jpUkjp/gphpah vd;gth; tprhuiz bra;ag;glhky; ,Ug;gJ bgUj;j jtwhf fUj ,aYkh vd ghprPypj;J ghh;f;Fk;nghJ mJ bgUj;j jtW vd fUj ,ayhJ/ of;bfl; bfhLf;fg;gltpy;iy vd kDjhuh; xg;g[f; bfhs;sg;gLk; epiyapy; nkw;fz;l jpUkjp/gphpah vd;gtiu tprhuiz bra;a ntz;oajpy;iy vd;nw ehd; jPh;khdpf;fpd;nwd;/ vdnt kDjhuh; kPJ Rkj;jg;gl;Ls;s 1tJ Fw;wr;rhl;L epU:gzk; bra;ag;gl;Ls;sjhf tprhuiz mjpfhhp jPh;khdpj;jpUg;gJ rhpahdnj vd;W jPh;khdpf;fpd;nwd;/ /// ,uz;lhtJ Fw;wr;rhl;lhf fl;lz epiy 8 kw;Wk; 7 I g{h;j;jp bra;ahky; ,Ue;Js;shh; vd Fw;wr;rhl;L tidag;gl;Ls;sjpy; nkw;fz;l Fw;wr;rhl;Lf;F tpsf;fk; mspf;Fk;nghJ mt;thW g{h;j;jp bra;atpy;iy vd;gija[k; xg;g[f;bfhs;Sfpwhh;/ bkhj;j 8 !;lhg; Vw;wp. ,wf;fp te;jjhft[k;. tz;oapy; cs;s kw;w of;bfl;Lk; bfhLf;f ntz;Lbkd;Wk;. mjpfkhf ,Ue;jjhy; Ke;ijaf; fl;lz epiyia g{h;j;jp bra;ag;gltpy;iy vd;Wk;. gazr;rPl;L tH';fpf; bfhz;L te;jjhft[k; Twpa[s;s epiyapy; nkw;fz;l Fw;wr;rhl;L epU:gzk; bra;ag;gl;Ls;sjhfnt mwpaKoa[k;/ vdnt nkw;fz;l Fw;wr;rhl;Lk; epU:gzk; bra;ag;gl;Ls;sjhfnt mwpaKoa[k;/ vdnt nkw;fz;l Fw;wr;rhl;Lk; epU:gzk; bra;ag;gl;Ls;sjhf jPh;khdpj;J ,Ug;gJ rhpahdnj vd;W ehd; jPh;khdpf;fpnwd;/ /// ,e;j kDit bghWj;jtiu kDjhuh; kPJ Rkj;jg;gl;Ls;s 2 kw;Wk; 4 Fw;wr;rhl;Lf;fs; bghWj;J fLikahd Fw;wr;rhl;L vd fUj ,ayhJ/ ,it rhjhuzkhf midj;J elj;JdUk; bra;af;Toa Fw;wkhFk;/ nkw;fz;l Fw;w';fis kl;Lk; kDjhuh; bra;jpUe;jhy; kDjhuiu kd;dpj;J kPz;Lk; gzpapy; mkh;j;j cj;jutplyhk;/ Mdhy; Fw;wr;rhl;L 1 kw;Wk; 3I bghWj;J ghprPypj;J ghh;f;Fk;nghJ kDjhuh; ifahly; bra;Js;shh; vd;gij mwpaKofpd;wJ/ nkw;fz;l ifahly; bra;Js;s bjhif vd;gJ kpft[k; Fiwthd bjhif vd;whYk; ,Jnghd;W bra;a[k; jtWfis vd;whtJ xU ehs; jhd; fz;Lgpof;f ,aYk;/ vdnt ,e;epiyapy; kDjhuh; ifahly; bra;Js;sjhf fUjg;gLk; bjhif kpft[k; rpwpa bjhif vd fzf;fpy; bfhz;L kDjhuUf;F Fiwe;j jz;lid tH';f ,ayhJ/ ifahly; bra;Js;sjhf fUJk;gl;rj;jpy; ifahly; bra;j bjhif vt;tst[ vd fzf;fpl;L mj;bjhifapd; mog;gilapy; jz;lid tH';f ,ayhJ/ ve;j xU bjhHpyhspa[k; xU epWtdj;jpy; ifahly; bra;Js;sjhh; vd fUJk;gl;rj;jpy; fLikahd jz;lid tH';FtJ mtrpak; vd;nw ehd; jPh;khdpf;fpnwd;/ vdnt kDjhuiu kPz;Lk; gzpapy; mkh;j;j cj;jputpl ,ayhJ vd;Wk;. kDtpy; kDjhuh; nfl;Ls;s ghpfhuk; kDjhuUf;F fpilf;ff; Toajpy;iy vd;Wk; ehd; jPh;khdpf;fpnwd;/ 1995y; nky;KiwaPl;L kDtpy; jdf;F Xa;t[bgw ,d;Dk; 6 tUl';fs; cs;sd vd Twpa[s;s epiyapy; jw;rkak; kDjhuh; Xa;t[bgWk; taij vl;oa[s;s epiyapy; kDjhuiu kPz;Lk; gzpapy; mkh;j;j cj;jputpl ,ayhJ vd;nw ehd; jPh;khdpf;fpnwd;/ vdnt ,e;j kDit js;Sgo bra;J cj;jputpl ntz;oaJ mtrpak; vd;nw ehd; jPh;khdpf;fpnwd;/"
12. By relying upon these findings as well as the conclusion reached by the Labour Court as extracted above, the learned standing counsel appearing for the second respondent has contended that, each and every charge framed against the petitioner and the explanation given by him and the strength of the evidence in respect of each of the charge has been considered by the Labour Court and after having considered all these aspects, the Labour Court has come to a right conclusion that, the punishment awarded against the petitioner cannot be said to be an excessive one and accordingly, it had confirmed the punishment inflicted on the petitioner. Therefore the impugned award does not require any interference from this Court.
13. In so far as the maximum punishment of removal of service inflicted against the petitioner, for the proven charges against the petitioner and whether the said punishment was justifiable or not is concerned, the learned standing counsel had vehemently contended that, the said punishment was justifiable one and in this regard in support of the said contention, the learned standing counsel has relied upon the following decisions :
(1) MD.North-East Karnataka Road Transport Corpn., v. K.Murti, (2006) 12 SCC 570 (2) Divisional Controller, N.E.K.R.T.C v. H.Amaresh, (2006) 6 SCC 187 (3) Bharath Petroleum Corpn., Ltd., v. T.K.Raju, (2006) 3 SC 143 (4) Divisional Controller, KSRTC (NWKRTC) v. A.T.Mani, (2005) 3 SCC 254 (5) Janatha Bazar v. Secretary, (2000) 7 SCC 517 (6) Uttaranchal Transport Corpn., v. Sanjay Kumar Nautiyal, (2008) 12 SCC 131
14. I have considered the said arguments advanced by the learned counsel appearing for the petitioner as well as the learned standing counsel appearing for the second respondent and I have also perused the materials placed before this Court.
15. There is no dispute that, pursuant to the four charges framed against the petitioner, charge memo was served on him along with show cause notice and thereafter, since the second respondent decided to conduct the domestic enquiry, an enquiry officer was appointed, before whom the petitioner had appeared and enquiry was conducted.
16. The consequences taken place during the domestic enquiry had been elaborately discussed by the Labour Court and ultimately the Labour Court had come to a conclusion that, the domestic enquiry was conducted in consonance with the principles of natural justice. In this regard the findings given by the Labour Court, in the opinion of this Court requires no interference, as every possible opportunity had been given to the petitioner during the domestic enquiry.
17. In so far as the findings given by the Labour Court about the conclusion of the enquiry officer that, the charges framed against the petitioner were proved is concerned, in so far as the first charge, it is an admitted case of the petitioner that he did receive Rs.50/- from a group of 10 passengers for issuance of ticket from Gudiyattam railway station till pallikonda temple and had returned back Rs.40/- as the remaining change, as each ticket will be for the value of Rupee 1. Admittedly the petitioner did not give ticket to the 10 passengers. In this regard the defence taken by the petitioner was that, there was a private bus, which was closely following the petitioner's bus and in order to cover more passengers, as the said day was a temple festival day in that locality, he did not stop the bus for closing the stage by completing the issuance of ticket till that stage and he was on the impression that he was continuously issuing tickets to all the passengers, who have already been on board before it reaches next stage and therefore he did not give tickets to 10 passengers. However since the bus was intercepted in between two stages by the inspecting team, the 10 passengers, who ought to get down in the nearby stopping, had voluntarily got down to reach their spot and therefore, the non-issuance of tickets to the said 10 passengers at that spur of moment could not be considered that the petitioner had intentionally not given tickets to the 10 passengers.
18. The above defence taken by the petitioner cannot be accepted for the simple reason that, it is an admitted case of the petitioner that he received Rs.50/- from the 10 passengers, the ticket amount is only Rs.10/- for 10 tickets, therefore, the remaining change claimed to have been already given to them, which means that the petitioner had received Rs.50/- from the passengers and returned back the remaining change of Rs.40/-. Therefore before collecting the cash from other passengers for issuance of ticket, within few seconds, the tickets for the 10 passengers could have been issued to them. In this regard, the petitioner cannot take a defence that he had time to collect the money and to return back the remaining change to the passengers, but he had no time to issue the tickets. This aspect has been properly considered by the Labour Court and it has given finding to that effect that the petitioner instead of issuing the tickets, for which he would have taken only few seconds, he had not issued the tickets, therefore it shows that the petitioner, intentionally, in order to misappropriate the money had not issued the tickets.
19. Those findings of the Labour Court, in the considered opinion of this Court, does not warranted any interference, as the said findings is the natural corollary, after having considered the factual matrix of this case.
20. Like that, the reasoning given by the petitioner for not closing the stage also cannot be accepted. In so far as the shortage of money is concerned, it is also admitted by the petitioner that there had been a shortage of money of Rs.2.65/- and the said shortage was because that some passengers instead of Rs.2.30/- had given only Rs.2.25/- Therefore the said shortage of Rs.2.65/- could have been possible. Since the first and third charges had been proved, the fourth charge also can automatically be construed as proved.
21. In this regard, the Labour Court has made a detailed discussion as to the circumstance and supporting evidence, to come to a conclusion that, these charges have been proved. More over, it is the own admission on the part of the petitioner, which itself is the reason to come to a conclusion that the charges had been proved.
22. Once the charges had been proved, as has been found by the Labour Court, the only question that was left to be decided is as to whether the punishment of removal of service inflicted on the petitioner was an excessive punishment or in commensurate with the proven charges alone.
23. In this regard also, the learned Judge of the Labour Court has given reasoning for coming to a conclusion that the punishment was not excessive.
24. The learned counsel appearing for the petitioner has relied upon some of the decisions as referred to above.
25. In 2011 (6) SCC 376, cited supra, the proposition was that the non-examination of the complainant during the departmental proceedings and denial of opportunity of cross-examination to delinquent was violation of the rules and therefore in that regard, it was decided that the misconduct was not proved. Therefore, the Court had taken a view that the punishment awarded against the delinquent has to be set aside.
26. In 2016(2) LLJ 594 (Mad), cited supra, it was also a case of conductor, against whom disciplinary proceedings was initiated and punishment was awarded. However, the Labour Court on facts found that the charges were not proved, therefore, reinstatement was ordered with continuity of service but backwages were denied. It was also held in that case that, the driver of the bus, who was in the service at the time of incident, since had not been enquired, who was construed to be a relevant witness, as the checking inspector collected signature from the driver, that was considered to be a lapse on the part of the enquiry officer.
27. However, the fact remains in that case is that, there had been statement by the workman before the checking officials at the time of incident, subsequently the same was denied by him. Here in this case, there was no such circumstance.
28. In 2000 (2) L.L.N. 399, cited supra, the principle underlined was that, if the penalty shocks conscience of the Court, it can be interfered with. The charge in that case was that the conductor, who was found to have issued tickets to all passengers, but they were short distance tickets and dispute about point at which passengers boarded on the bus was not decided by examining the passengers but by relying only upon the report of the Transport Inspector, which was signed by the delinquent, it was decided that charges were proved. In that case, it was held by the Hon'ble Supreme Court that the punishment of dismissal from service was shockingly disproportionate and therefore it was interfered.
29. However in this case it is a defence of the petitioner that, he received Rs.50/- from the passengers and gave back the change of Rs.40/-. The ticket cost was Rs.10/-, however, the tickets were not issued till they got down, of course at the stop before because of the interception of the checking officials. Hence, the facts of the said case is entirely different. Therefore, the said Judgment cannot be applied.
30. Therefore the Judgments referred to by the learned counsel for the petitioner will no way advance the case of the petitioner. The reason being that, it is the defence of the petitioner himself that, he did receive the amount and gave back the change to the passengers. But the fact remains that, he did not issue the tickets. The said fact has not been denied by the petitioner and he had taken the only defence that he wanted to issue the ticket before it reaches next stage, as there had been heavy rush in the bus on the particular day because of the temple festival and also in order to avoid the overtaking by a private bus, which was closely following, to take more passengers, he did not issue tickets for want of time. However, the fact remains that, he had found time to get money and gave back the change also to the passengers. When that being so, his defence that he did not find time to give tickets and he thought of giving tickets before it reaches the stage, cannot be accepted and therefore, the Judgments referred to by the learned counsel for the petitioner in this regard would no way applicable to the facts of the present case.
31. However on the contrary, the following Judgments relied upon by the second respondent side, would exactly advance the case of the second respondent side.
32. In (2006) 12 SCC 570, cited supra, the Hon'ble Apex Court in similar circumstance has held as follows :
"7. We have heard learned counsel appearing for the appellant Management and perused the records. In our opinion, the order passed by the High Court is erroneous on the face of the record. The High Court, in our opinion, ought to have seen that the misconduct was duly established in the enquiry and despite it, the Labour Court had persuaded itself to reinstate the delinquent in service. The learned Single Judge also confirmed the order passed by the Labour Court. In our opinion, the High Court was not justified in altering the quantum of punishment when the enquiry was held to be fair and proper, charge was proved and no evidence was led before the Labour Court while questioning the order of the disciplinary authority dismissing the delinquent workman. Likewise, the High Court also failed to notice the order removing the name of the respondent from the list of badli conductors. The High Court has also erred in taking note of the fact that the punishment imposed on the delinquent official was not shockingly disproportionate to the gravity of the misconduct proved against him coupled with his history and he being a badli conductor. In our opinion, the Division Bench has erred in rejecting the plea of the Management that the Labour Court was not justified in ordering reinstatement of the respondent as regular employee on the ground that such a plea was not raised before the learned Single Judge when as a matter of fact the plea had been taken both before the Labour Court and the learned Single Judge of the High Court.
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 [(2002) 10 SCC 330 : 2003 SCC (L&S) 714] 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 [(2001) 2 SCC 574 : 2001 SCC (L&S) 469] . 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 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 [(2006) 6 SCC 187 : 2006 SCC (L&S) 1290] . In this case, this Court was considering the 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 exists 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 in 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."
33. In (2006) 6 SCC 187, in yet another similar circumstances, the Apex Court has held as follows :
"25. In our view, even short remittance amounts to misconduct 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."
34. In (2006) 3 SCC 143, cited supra, the Hon'ble Apex Court has held that interference with the quantum of punishment should not be done in a routine manner. The following findings can be usefully referred :
"16. The power of judicial review in such matters is limited. This Court times without number had laid down that interference with the quantum of punishment should not be done in a routine manner [See V.Ramana v. A.P.SRTC, (2005) 7 SCC 338 and State of Rajasthan v. Mohd. Ayub Naz, (2006) 1 SCC 589]."
35. In 2000 (7) SCC 517, the principle was that, for the proven misconduct, it is the discretion of the employer to decide the quantum of punishment, if the misconduct was proved in the domestic enquiry, the same cannot be interfered by substituting the penalty by the Labour Court. The following findings can be usefully referred :
"8. In case of proved misappropriation, in our view, there is no question of considering past record. It is the discretion of the employer to consider the same in appropriate cases, but the Labour Court cannot substitute the penalty imposed by the employer in such cases."
36. In 2008 (12) SCC 131, the scope of interference of the Labour Court on the quantum of punishment has been discussed and decided :
"16. InV. Ramana v. A.P. SRTC[(2005) 7 SCC 338 : 2006 SCC (L&S) 69] it was held as follows: (SCC pp. 341-42, paras 4-5) 4. In Karnataka SRTC v. B.S. Hullikatti [(2001) 2 SCC 574 : 2001 SCC (L&S) 469 : JT 2001 (2) SC 72] it was held that misconduct in such cases where the bus conductor either had not issued tickets to a large number of passengers or had issued tickets of lower denomination, punishment of removal is proper. It is the responsibility of the conductors to collect correct fare charges from the passengers and deposit the same with the Corporation. They act in fiduciary capacity and it would be a case of gross misconduct if they do not collect any fare or the correct amount of fare. A conductor holds a post of trust. A person guilty of breach of trust should be imposed punishment of removal from service. The factual position shows that the appellant's conduct in collecting fare at the designated place and not collecting fare from persons who had already travelled were in violation of various regulations contained in the Andhra Pradesh State Road Transport Corporation Employees (Conduct) Regulations, 1963 (in short the Regulations). In Karnataka SRTC case [(2001) 2 SCC 574 : 2001 SCC (L&S) 469 : JT 2001 (2) SC 72] it was held that it is misplaced sympathy by courts in awarding lesser punishments where on checking it is found that the bus conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower denomination knowing fully well the correct fare to be charged. It was finally held that the order of dismissal should not have been set aside. The view was reiterated by a three-Judge Bench in Rajasthan SRTC v.Ghanshyam Sharma [(2002) 10 SCC 330 : 2003 SCC (L&S) 714 : (2002) 1 LLJ 234] where it was additionally observed that the proved acts amount either to a case of dishonesty or of gross negligence, and bus conductors who by their actions or inactions cause financial loss to the Corporation are not fit to be retained in service.
5. The principle was reiterated in U.P. SRTCv. Hoti Lal [(2003) 3 SCC 605 : 2003 SCC (L&S) 363 : JT (2003) 2 SC 27] . Above being the position, the Labour Court and the High Court were not justified in holding that the punishment awarded was disproportionate.
17.In view of the above, the order of the High Court is set aside. The punishment awarded by the disciplinary authority as upheld by the appellate authority stands restored."
37. The principle enunciated in the aforesaid Judgments cited on the side of the second respondent would undoubtedly hold that the scope of interference of either by the Labour Court or by the High Court on the quantum of punishment for proven charge, that too by way of misappropriation, is very limited and it cannot be done in a routine manner.
38. In this case on hand, there is no doubt that the charges framed against the petitioner had been proved. In so far as the charge of misappropriation, i.e., the first charge is concerned, based on the own admission as well as the evidences, it can be safely concluded that the said charge had been proved, which also discloses the fact that intentionally the petitioner had not issued the tickets to the passengers after collecting the amount and claimed to have returned back the change.
39. As has been held by the Hon'ble Apex Court, the job of the bus conductor is mainly based on the faith and trust the employer transport corporation have on its employees especially on conductors. The amount of misappropriation may be small (in this case Rs.10/-). However, the intention of the employee is paramount. An employee, though he is empowered to deal with small amount from each of the passengers travel in the bus and he is capable of swindling only a small amount, however, if that is the intention of the employee concerned and if he commits the same in a routine manner, then the loss to the employer corporation would be huge. These kind of misdeeds can be caught red handed only at times, when checking mechanism unmistakenly completes the task. Therefore if the defence like the one now taken by the petitioner is accepted and based on which, these kind of erring employees are left without any punishment, there could be no deterrent for these kind of employees and that kind of situation will lead to a disastrous consequences in the administration and financial discipline of a transport corporation, that too in a public sector undertaking.
40. Therefore the punishment awarded against the petitioner for the proven misconduct of misappropriation on the part of the petitioner, cannot be said to be either unlawful or unjustifiable, nor it can be termed as an excessive punishment, shocking the conscience of the Court.
41. Therefore, applying the principles laid down in various cases, as has been discussed above, the findings given by the Labour Court, through the impugned award, is to be accepted and hence, it does not require any interference from this Court.
42. In the result, this writ petition is dismissed. There shall be no order as to costs.
23.08.2018 Index : Yes Speaking Order tsvn To
1. The Presiding Officer Labour Court, Vellore.
2. The Management of Tamil Nadu State Transport Corporation Ltd., (Villupuram Division-2) Vellore.
R.SURESH KUMAR, J.
tsvn Order in W.P.No.38516 of 2002 23-08-2018