Madras High Court
V. Kasi vs Pandian Roadways Corporation Ltd., ... on 3 February, 2002
Author: R. Jayasimha Babu
Bench: R. Jayasimha Babu
JUDGMENT R. Jayasimha Babu, J.
1. The appellant was working as a conductor in the respondent Corporation. His services were terminated after an enquiry into the misconduct of not issuing tickets to four passengers, one of whom was a child, and for all of whom 3 1/2 tickets should have been issued. The incident occurred on 15.2.1989 when the bus was travelling from Devakottai to Madurai.
2. The workman's defence to the charge was that the passengers had boarded the bus at Amaravathiputhur, in between Devakottai and Madurai; that he had collected the fare from them but, that regarding the number of tickets to be issued, there was a difference of view between the passengers and the conductor as the passengers had taken the stand that no charge was payable for the child. The fact that the conductor had collected the money from the passengers but had not issued the tickets to them is not disputed. The conductor claimed that he had made an entry in the invoice with regard to three and half tickets upto that stage and, therefore, it cannot be said that he had committed any fraud or misappropriation of money belonging to the Corporation. At the enquiry the workman examined himself as a witness and repeated his defence. It was found at the enquiry that the entry in the invoice was made by the conductor only after the checking staff had been sighted; that the passengers had given statement to the effect that they had in fact paid the fare to the conductor much before the boarding of the checking staff into the bus and that the conductor had also returned to them the change after retaining the amounts payable for three and half tickets. The driver who had also given a statement had stated that he had driven the bus from Devakottai to Madurai and he had not mentioned the bus having stopped at Amaravathiputhur after it had left Devakottai.
3. The Labour Court to which the dispute was referred for adjudication held that the enquiry had been properly conducted and that the past record of the workman showed that for a similar misdemeanour of not accounting for the amounts collected from the passengers he had been suspended from service for a period of two weeks about seven years earlier. The Labour Court, however, took the view that as no misconduct had been alleged against the workman in the immediately preceding seven years, the workman should be reinstated in service but without backwages. The award of the labour Court having been challenged before this Court by the employer, the learned single Judge while affirming the finding of guilt also noticed that there were only fourteen adults and one child in the bus and the explanation offered by the workman that he did not have enough time to issue three and half tickets was not a credible explanation. Regarding the punishment, the learned single Judge was of the view that the Labour Court had not given tenable reasons for exercising its discretion under Section 11-A of the Industrial Disputes Act for setting aside the order of dismissal and in proceeding to direct reinstatement.
4. Learned counsel for the workman repeated before us what had been urged by the workman before the Labour Court as also before the learned single Judge. We have heard him at considerable length. He has taken us through the records of the enquiry, the enquiry report as also the order of the Labour Court. We have also seen the invoice in which the workman had made the entry. It is an admitted fact that the number of passengers in the bus were only fifteen, one of whom being a child the total number of tickets that should have been issued was fourteen and half. The actual number of tickets that had been issued was only eleven and the three and half tickets which ought to have been issued had not been issued when the inspection was carried out. Even according to the conductor, the bus had only travelled two kilometres from the point at which the passengers had boarded the bus and in that interval the workman had collected the money from them and had also given them the change but had not given the tickets. As to whether those passengers boarded at Amaravathiputhur is a matter of serious doubt as the driver who had given a statement had not mentioned in the statement that the bus had stopped at that place. It is inconceivable as to how the conductor, having collected the money from the passengers and even after returning the change due, had no time to tear out the tickets from the ticket book and hand over the same to the passengers. The explanation offered for the non-issue of the tickets is not one which is acceptable and has rightly been rejected by the enquiry officer. The finding of the enquiry officer has been rightly affirmed by the Labour Court as also by the learned single Judge.
5. The entry in the invoice must have been made after the workman had sighted the inspection staff with a view to buttress the possible defence in the event of a charge being made against him for the non issue of the tickets. The fact that the tickets had not been issued being beyond dispute the entry made in the invoice by itself would not lead one to the conclusion that the conductor had no dishonest intent in not having issued the tickets earlier. The conductor may well have thought that making the entry in the invoice would enable him to claim that non-issue of tickets was not of significance by reason of the entry made. The making of such entry in the invoice as admitted by the workman, is required to be made only after issuing the tickets and not before the issue of the tickets. In the circumstances, the entry made by the conductor must be regarded as having been made not bona fide but as having been made with a dishonest intent of covering up the factum of non-issue of the tickets and thereafter claiming that the entry in the invoice would militate against any dishonest intent in not issuing the tickets.
6. We are, therefore, unable to accept the submission made by the workman's learned counsel that the workman was not guilty of misconduct and that even if he were to be pulled up for such misconduct, the misconduct was not grave enough to warrant the penalty of dismissal from service.
7. Counsel then submitted that the value of the three and half tickets is only Rs.32.60 and that the punishment of termination of his employment for not paying that sum to the Corporation would be grossly excessive and would warrant interference with the punishment as has been done by the Labour Court.
8. The conduct of conductors who fail to remit to the State owned Transport Corporations the amounts collected by them from passengers, has been subject matter of numerous decisions of High Courts as also of the Supreme Court. It is sufficient to refer to two such recent decisions. In the case of Karnataka State Road Transport Corporation v. B.S. Hullikatti (2001-I-LLJ 725), the Apex Court has held that the action of a conductor, who had served nearly 22 years, charging 50 paise per ticket less from as many as 35 passengers, could only be to get financial benefit for himself and such act was either so dishonest or grossly negligent that the he 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 Corporation. The Apex Court went on to observe:
"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."
The Court held in that case that the employee whose reinstatement had been directed by the Labour Court, but who had retired by the time the matter was heard by the Apex Court, would not be entitled to any backwages.
9. Subsequently, a three Judge Bench of the Apex Court in the case of Regional Manager, Rajasthan State Road Transport Corporation v. Ghanshyam Sharma 2002 (2) L.L.N., 1118, affirmed the proposition laid down in the case of Karnataka State Road Transport Corporation referred to above. The three Judge Bench held that "the Labour Court was not justified in interfering with the punishment of dismissal and, 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 Road Transport Corporation and when a conductor fails to do so, then it will be misplaced sympathy to order his reinstatement instead of dismissal."
10. Those observations of the Apex Court make it clear that it is not the amount that is withheld that is material but it is the conduct which is dishonest that is required to be dealt with. Interference under Section 11-A by the Labour Court in cases where such dishonest conduct has been proved would not be justified.
11. The learned counsel for the workman referred us to the judgment of the Apex Court in the case of H.B. Ghandhi, Excise and Taxation Officer-cum-Assessing Authority Karnal and others v. M/s Gopinath and Sons and others (1992 Supp (2) SCC 312) in support of his submission that in a proceedings for judicial review it is not the decision, but the process of the decision making that is required to be examined by the superior Court. He also referred us to the decision of the Apex Court in the case of Scooter India Limited, Lucknow v. Labour Court, Lucknow and others , in support of his submission that the decision of the Labour Court which had directed reinstatement even after upholding the finding of misconduct was not illegal and that it would not warrant any interference. Reliance was also placed on the decision of a Division Bench of this Court in the case of T. Muthusamy v. Presiding Officer, Labour Court, Coimbatore and another (1991-II-L.L.J.,405), which upheld a direction for reinstatement made by the Labour Court after finding that the Labour Court had been aware and alive to the norms and requirements of Section 11-A of the Act. The decisions relied on by the workman are not of much assistance, having regard to the law laid down by the Apex Court in the case of Rajasthan Road Transport Corporation [2002 (2) LLN 1118]. We, therefore, do not find any error in the order of the learned single Judge warranting interference. The appeal is dismissed. The C.M.Ps. are closed.