Gujarat High Court
Sandeep vs Divisional on 29 April, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCAO/52012/0101 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5201 of 2010
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SANDEEP
S BHATT - Petitioner(s)
Versus
DIVISIONAL
CONTROLLER - Respondent(s)
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Appearance
:
MS.RENU
R.SINGH for
Petitioner(s) : 1,
None for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 29/04/2010
ORAL
ORDER
Heard learned Advocate Ms. Renu Singh for petitioner workman.
Petitioner workman has challenged award passed by Industrial Tribunal, Bhavnagar in Reference (IT) NO. 46 of 2000 Exh. 40 dated 11.3.2010. Industrial Tribunal, Bhavnagar has rejected reference filed by petitioner workman through union.
Learned Advocate Ms. Singh for petitioner conductor has submitted that Industrial Tribunal has committed gross error in not considering facts which are on record because the date on which bus was checked by checking staff, petitioner was sick and suffering from fever and had produced medical certificate dated 25.11.1997 in inquiry and he was on double duty and, therefore, was not able to work properly and it was rainy season and due to that, after recovering fare because of illness, he has not been able to issue tickets but intention was not bad or mala fide for not issuing tickets to passengers after recovering fare from there. She submitted that this aspect has not been properly considered by Industrial Tribunal, Bhavnagar and, therefore, interference of this court is necessary.
I have considered submissions made by learned Advocate Ms. Singh for petitioner conductor. I have also perused impugned award passed by Industrial Tribunal, Bhavnagar. Petitioner conductor has raised industrial dispute through Rashtriya General Workers Union against punishment imposed by competent authority dated 17th August, 1999 for stoppage of five increments with cumulative effect and rejected first appeal on 30.4.1999 and directed corporation to pay whatever financial loss caused to petitioner. This dispute is referred for adjudication on 8.2.2000 and in support of that, Exh. 13 statement of claim was filed by petitioner and written statement was filed by corporation at Exh. 14 and thereafter, demand was made by petitioner vide Exh. 15 application to direct corporation to produce entire papers of departmental inquiry. Accordingly, respondent corporation has produced entire papers of departmental inquiry vide Exh. 16 list which are exhibited as Exh.17 to Ex.34. Petitioner workman has filed purshis at Exh. 35 to the effect that the legality, validity and propriety of departmental inquiry is not challenged by him but he is challenging finding and punishment imposed by corporation. Either side has not led any oral evidence before industrial tribunal and looking to misconduct which has been alleged against workman, petitioner conductor, when he was on route on 2nd July, 1997, at that occasion, it was alleged against him that he recovered fare from 5 passengers of two groups and 3 passengers of one group travelling from Dholera to Pipali and also from other passengers, fare was recovered and not issued tickets and, therefore, checking staff had recovered unpunched tickets for that much amount which was recovered by conductor. Similarly, from two other passengers of one group travelling from Bhavnagar to Tarapur and one passenger travelling from Dholera to Tarapur, from whom petitioner has taken lumsum amount of fare and not issued tickets till checking had taken place and on the spot, statement was given by conductor to checking staff that he has recovered fare while receiving lumsum amount from passengers and upto point of checking, not issued tickets to concerned passengers, which in all comes to Rs.155.00 which has been recovered by conductor from passengers as referred to in charges and not issued tickets upto checking point.
In view of admission made by workman before checking staff giving voluntary statement, his traffic cash was not checked by checking staff. Defence of workman was that he was not well and all of a sudden, become sick, therefore, he was unable to complete booking and he was also having exchange of words with other passengers and, therefore he was not able to issue tickets and he was working on double duty and it was rainy season and, therefore, this incident has taken place, for that, he was not having any mala fide or dishonest intention to recover fare and not to issue tickets. Medical certificate dated 25.11.1997 was produced in departmental inquiry by workman. Thereafter, industrial tribunal has considered purshis Exh. 35 whereby challenge to legality and validity of departmental inquiry was given up by workman but challenged only finding. In para 9, industrial tribunal has come to conclusion that there was legal evidence available in departmental inquiry and on that basis, charges were proved against conductor to recover fare or receive lumsum amount from passengers and upto checking point, tickets were not issued by conductor, therefore, industrial tribunal has come to the conclusion that the finding is not vitiated as on behalf of petitioner, it has not been demonstrated before industrial tribunal how such finding is considered to be baseless and perverse and, therefore, tribunal has come to conclusion that finding is based on legal evidence and it is not vitiated. Industrial tribunal has considered this being serious misconduct relating to dishonesty and misappropriation of revenue of corporation and relying upon apex court decision in case of Karnataka SRTC versus Hullikutty reported in 2001-(2)- SCC page 574 and in case of Rameshbhai Sukhabhai Patel versus DC ST Corporation reported in 2007 (3) CLR page 710 and in case of Kantibhai Manilal Prajapati versus DC ST Corporation reported in 2007 (3) CLR 1015 wherein it has been held that when any workman has been involved in misappropriation of amount of his employer, then, it has to be considered as serious misconduct and when workman loses confidence of employer in the matter of misappropriation of amount, then, no grace can be shown to such an employee. Considering aforesaid decision in light of facts of present case, industrial tribunal has rightly come to conclusion that the punishment of stoppage of five increments for five years with cumulative effect cannot be considered to be disproportionate or unjust punishment. Industrial Tribunal has also considered one decision of apex court in case of Divisional Controller NEKRTC versus H. Amresh reported in 2006 Lab IC 3983 wherein it has been held when an employee is involved with financial misappropriation, then, even if the amount involved is small, it has to be viewed as a serious misconduct. Then, industrial tribunal has also considered decision of apex court in case of UPSRTC versus Nanhe Lal Kushwaha,reported in 2009 (4) LLJ page 655 and has considered relevant para 12 of said decision which is reproduced as under:
12. We regret our inability to accede to the said request As the respondent was appointed as a conductor and in that capacity was holding the position of trust, it is not amount which would be very material for the purpose of determining the quantum of punishment. He was charged for commission of similar misconducts on six occasions; at least misconduct has been found to be proved in respect of two charges even by the Labour Court.
The view to that effect has been taken by apex court in number of decisions reported in AIR 2007 SC 2987; AIR 2006 SC 1480, AIR 2006 SC 2164, AIR 2006 page 2208, AIR 2006 SC page 2730, AIR 2006 SC page 3227 and recent decision in case of Divisional Manager, Rajasthan SRTC v. Kamruddin, reported in 2009 AIR SCW page 4410. In said decision, apex court considered case of a bus conductor found to be carrying passengers without ticket. Relevant observations made by apex court in paragraph 9, 10 and 11 are quoted as under:
9.
It is not a case where the misconduct against the respondent had not been proved. It is also not a case where the domestic enquiry was found to have been conducted in an unfair manner or contrary to the principles of natural justice. The services of the respondent had been terminated while the period of probation was not over. As a conductor, his performance during the period of probation was found to be unsatisfactory. It is not in dispute that a disciplinary proceeding was initiated against him while he was found to have committed similar misconduct for the fifth time. It is also beyond any doubt or dispute that he had also been served with a letter of warning.
10. The power of Labour Court and/or Industrial Tribunal in terms of Section 11A of the Industrial Disputes Act, 1947 to interfere with the quantum of punishment although cannot be denied, but it is also a well settled principle of law that the said power should be exercised judiciously.
The Labour Court relied upon the decision of this Court in Bhagyo Mal (supra) wherein the High Court allowed back wages to the workman concerned. This Court in the facts and circumstances of the case found the order of the High Court to be self-contradictory, stating:
"When the High Court had found that the respondent - employee deserved punishment on account of his misconduct, the High Court could not have rewarded the employee by granting him the back wages particularly when the Tribunal had converted the order of dismissal into that of the stoppage of two increments with cumulative effect. We, therefore, allow the appeal and set aside that part of the order of the High Court whereby the respondent - employee has been given the benefit of back wages. The rest of the order is maintained."
We fail to understand as to how the said decision advanced the case of the respondent.
11. The question with regard to imposition of appropriate punishment upon a conductor of a bus belonging to a corporation constituted under the Road Transport Corporation Act, 1950 came up for consideration before this Court in Karnataka State Road Transport Corporation vs. B.S. Hullikatti [(2001) 2 SCC 574], wherein it was held:
"5. On the facts as found by the Labour Court and the High Court, it is evident that there was a short-charging of the fare by the respondent from as many as 35 passengers. We are informed that the respondent had been in service as a Conductor for nearly 22 years. It is difficult to believe that he did not know what was the correct fare which was to be charged. Furthermore, the appellant had during the disciplinary proceedings taken into account the fact that the respondent had been found guilty for as many as 36 times on different dates. Be that as it may, the principle of res ipsa loquitur, namely, the facts speak for themselves, is clearly applicable in the instant case. Charging 50 paise per ticket less from as many as 35 passengers could only be to get financial benefit by the Conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a Conductor because such action or inaction of his is bound to result in financial loss to the appellant-Corporation.
6.It is misplaced sympathy by the Labour Courts in such cases when 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 is the responsibility of the Bus Conductors to collect the correct fare from the passengers and deposit the same with the Company. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare."
A three judge Bench of this Court in Regional Manager, RSRTC vs. Ghanshyam Sharma [(2002) 10 SCC 330], reiterated the said principle, stating:
"4. This Court in Karnataka SRTC v. B.S. Hullikatti has held that in such cases where the bus conductors carry passengers without ticket or issue tickets at a less rate 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 was firmly of the opinion that in cases like the present, orders of dismissal should not be set aside. 5. Furthermore, we agree with the observations of the Single Judge in the present case that the Labour Court was not justified in interfering with the punishment of dismissal. Though under Section 11-A the Labour Court has jurisdiction and powers to interfere with the quantum of punishment, however the discretion has to be used judiciously. When the main duty or function of the conductor is to issue tickets and collect fare and then deposit the same with the Road Transport Corporation and when a conductor fails to do so, then it will be misplaced sympathy to order his reinstatement instead of dismissal."
In view of above observations made by apex court and looking to facts on record which are almost proving the misconduct of dishonesty and misappropriation committed by petitioner conductor after recovering lumsum amount of fare and not issuing tickets to concerned passengers upto checking point and on the spot statement obtained by checking staff from petitioner conductor wherein it is admitted by conductor that he had recovered lumsum amount from passengers and upto checking point, tickets were not issued, according to my opinion, this being serious misconduct relating to dishonesty and misappropriation, punishment imposed by DTSD Competent Authority of ST Corporation cannot be considered to be disproportionate to gravity of misconduct proved against petitioner conductor. View taken by industrial tribunal is perfectly justified. For that, industrial tribunal has not committed any error which would require interference of this court in exercise of powers under Article 227 of the Constitution of India [See : State of Haryana v. Manoj Kumar reported in 2010 AIR SCW 1990 decided on 9th March 2010].
Therefore, there is no substance in this petition and same is required to be dismissed.
For reasons recorded above, this petition is dismissed.
(H.K. Rathod,J.) Vyas Top