Bombay High Court
Nathu Mahadeo Nigade vs Pune Municipal Transport Corporation on 26 April, 2000
Equivalent citations: (2000)102BOMLR552
Author: R.J. Kochar
Bench: R.J. Kochar
JUDGMENT R.J. Kochar, J.
1. The present petition is filed under Article 227 of the Constitution of India challenging the impugned judgment and order dated 30th April, 1993, passed by the Industrial Court, Maharashtra, Pune in Complaint ULP No. 609 of 1987 filed by the petitioner employee against the order of punishment dated 11.11.1987 imposed by the respondent Corporation reducing petitioner's basic wage from Rs. 360/- per month to Rs. 324/- for an act of misconduct proved in a domestic enquiry held by the respondent against the petitioner. A charge was levelled against the petitioner Conductor that while on duty on 21.7.1987 he did no return the balance amount to the tune of 5 paise/10 paise to 10 passengers and hence he was dishonest with the business of the Respondent and had lowered its prestige by such indisciplined conduct. The petitioner had submitted his written explanation by his letter dated 4.8.1987 denying the charges and explaining that the bus was overcrowded and that he had no sufficient change in the form of coins. He further stated that he tried to return the balance of such coins as far as possible for him. He denied the charge of dishonesty. Not being satisfied with the said written explanation, the Corporation instituted an enquiry against him wherein he participated. As a result of the said enquiry a show cause notice was served on him and finally an order of punishment was served on him.
2. Being aggrieved by the said order of punishment, he approached the Industrial Court, Pune by filing a complaint of unfair labour practice under Section 28 of the M.R.T.U. and P.U.L.P. Act, 1971 (hereinafter referred to as the Act), read with Item 14 and 4(1) of Schedule II and Items 5 and 9 of Schedule IV of the same. In his complaint he had repeated his explanation and had also denied the charge of dishonesty and further averred that the officer who had issued the charge-sheet had no authority or power to issue such a charge-sheet and to hold an enquiry and to impose punishment. He, therefore, prayed for a declaration of an unfair labour practice against the respondent and also a positive order or quashing and setting aside the impugned order of punishment. The respondent appeared before the Industrial Court and contested the complaint by denying the charge of unfair labour practice. In the written statement, the respondent has further refuted the allegations made in the complaint in respect of enquiry and also in respect of lack of powers of imposing punishment in the authority. Both the parties adduced their respective oral and documentary evidence. The Industrial Court finally came to the conclusion that there was no unfair labour practice engaged in by the respondent and therefore, the complaint was dismissed. Except Item 9 of Schedule IV of the Act no other items appear to have been pressed by the petitioner. The petitioner had mainly challenged the order of punishment on two points, viz., the enquiry was not fair and proper as he was not furnished with a copy of the report of the Checker Shri Shaikh and that the Enquiry Officer was not competent to issue a charge-sheet, obtain explanation, record findings and impose punishment. The petitioner had challenged the competence of the Enquiry Officer to issue charge-sheet, hold enquiry and impose punishment. The Industrial Court has decided both, these points against the petitioner. Shri Nakhwa the learned Advocate for the petitioner has repeated the same submissions before me. The Industrial Court has found from the evidence on record that the petitioner was in fact furnished with a copy of the Checker's report before recording of evidence in the enquiry, before the solitary witness who appeared in the domestic enquiry was offered for cross-examination. As far as this grievance of petitioner is concerned, the Industrial Court has rightly held against the petitioner as factually the petitioner was furnished with a copy of the Checker's report dated 21.7.1987 in advance and there was absolutely no prejudice caused to him. In fact, this allegation is totally baseless and contrary to the facts. As far as the second point of competence of the Enquiry Officer to issue charge-sheet, hold enquiry and to impose punishment is concerned, it was pointed out by Shri Ketkar, the learned Advocate for the respondent, that under Section 69 of the Bombay Provincial Municipal Corporation Act, the Transport Manager being the head of the Transport Corporation had powers to delegate his powers to certain municipal officers and accordingly the Transport Manager had delegated his powers to issue charge-sheet, to hold enquiry and impose punishment. It is further submitted by Shri Ketkar that there was a resolution passed by the Standing Committee approving the delegation of powers to certain Municipal Officers. It is, therefore, clear that the order imposing punishment on the petitioner was lawfully passed by the Municipal Officer Shri Ambekar, who was appointed as Enquiry Officer and who had issued charge-sheet before completing the enquiry and before imposing the punishment on the petitioner under Section 26(1)(c) of the Standing Orders.
3. I am, therefore, satisfied beyond any manner of doubt that the Enquiry Officer who was appointed on delegation of the powers by the Transport Manager had powers to issue charge-sheet, hold enquiry and impose punishment. There is absolutely no illegality in the order passed by Shri Ambekar. Shri Ambekar, the head of the department, who was designated as an Enquiry Officer has passed the order under the powers conferred upon him. In any case, there is no absence or lack of powers under the Act as well as under the Standing Orders to impose punishment in respect of the charges levelled against the petitioner. According to me, the Appropriate and Competent authority being the head of the department designated as the Enquiry Officer has exercised his Legal Authority to finally impose the punishment on the petitioner. I do not find that there is any breach or violation of any principles of natural justice in holding the enquiry. I also do not find any breach of any provisions of the Standing Orders in conducting the enquiry and imposing the final punishment on the petitioner.
4. According to me, there is no substance in the submissions of Shri Nakhwa on the aforesaid point. The learned Advocate, however, submitted a law point which was not raised before the Industrial Court, either in the complaint or in the submissions. Shri Nakhwa submits that there was no act of dishonesty in the business or property of the Corporation as the amount of 50 paise was a very negligible and there was no intention on the part of the petitioner to misappropriate 50 paise by not returning the same to the passengers. At the most it could have been an act of negligence or neglect of work under Standing Order No. 27(c) and (d). The said Clause 27(c) and (d) narrates some minor misconduct. It is, therefore, submitted that by imposing a punishment under Standing Order No. 26 treating the act as a major misconduct instead of a minor misconduct, the respondent has violated the provisions of the Standing Orders. Shri Nakhwa has submitted that the Standing Order No. 25(w)(y) will not be applicable in the given case as it was not the intention of the petitioner to retain such a paltry sum of 50 paise and commit the act of dishonesty. He therefore, further submitted that by levelling such a charge under the aforesaid head of Standing Order, the Corporation has violated the provisions of the Standing Order. He further submits that the petitioner could have been punished for minor misconduct, but instead he was punished under the head of major misconduct. It is not possible to accept the said submission of Shri Nakhwa. In fact it is for the employer to treat a particular act or omission of an employee under the appropriate head of the Standing Orders. I do not find anything wrong in applying the Clause 25(w) to the facts of the present case. The amount is irrelevant. If the Corporation had considered non-payment of the balance amount to the passenger as an act of dishonesty, which ex facie attracts the said clause of the Standing Order, the value of the amount is immaterial and it cannot be said that the Corporation had violated the Standing Orders. The employee cannot insist on a particular clause under the Standing Orders to be charged under. It is for the employer to treat a particular act or omission on the part of the employee to be a misconduct. If a totally wrong or inapplicable head of the Standing Order is applied, in that case, the employer definitely would fail in the Court of law. In our case, it cannot be said that a total wrong or inapplicable clause of the Standing Orders was applied. According to me, it was appropriate clause to be applied to the petitioner in the given facts and circumstances of the case. An employee may feel that he was not dishonest but could have been negligent. It is however, for the Enquiry Officer to draw proper conclusions based on the evidence and it is for the Punishing Authority to consider and appreciate the whole evidence and circumstances. In any case, it cannot be said that merely because Clauses 25(w)(y) of the Standing Orders were applied to the petitioner, the Corporation has committed unfair labour practice within the meaning of Item 9 of the Act. Shri Nakhwa has further submitted that punishment imposed in the given facts and circumstances is shockingly disproportionate. It is not possible for me to consider this point under Item 9 of Schedule IV of the Act. It is only the violation of the Standing Orders which could be attracted under Item 9 of Schedule IV of the Act. Whether the punishment was proper or commensurate with the misconduct proved is not for this Court or even for the Industrial Court to consider under Item No. 9 of the Schedule IV of the Act. In any case, in the present case, the Punishing Authority has considered the past record of the petitioner and has imposed the punishment. There is absolutely no reason for me to interfere with the reasoned findings recorded by the Industrial Court while exercising my powers under Article 227 of the Constitution of India. The Industrial Court has properly decided the complaint and there is no illegality or infirmity in its order, to warrant any interference by this Court under Article 227 of the Constitution of India.
The petition, therefore, fails. Rule is discharged.