Madras High Court
M.Mallika vs Presiding Officer on 2 December, 2016
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.12.2016
Reserved on : 04.10.2016
Pronounced on : 02.12.2016
CORAM
THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN
Writ Petition(MD) No.7978 of 2010
M.Mallika
W/o late N.Muruganantham,
Malligai Illam,
Bharthai Nagar,
Vedasandur Post and Taluk,
Dindigul District
(Substituted as Lrs of the deceased
Petitioner vide order dated 17.06.2014
passed in M.P(MD)No.1 of 2014)
...Petitioner
Vs.
1.Presiding Officer,
Labour Court,
Tiruchirappalli.
2.The Managing Director,
Tamil Nadu State Transport Corporation
(Madurai) Ltd.,
Bye-pass Road,
Madurai.
(Formerly known as TNSTC
(Madurai-Division-IV) Ltd.,
Dindigul
... Respondents
Prayer : Petition is filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorarified Mandamus to call for the records of the
first respondent relating to the Award passed by the first respondent in
I.D.No.140 of 2003 dated 31.08.2009 confirming the dismissal order passed by
the 2nd respondent in order dated 15.12.2001 and quash the same and
consequently, to direct the 2nd respondent to reinstate the petitioner into
service with continuity of service and backwages and all other attendant and
monetary benefits.
!For Petitioner : Mr.S.Govindan
^For Respondents : Mr.S.C.Herold Singh
for R2
:ORDER
Challenging the award passed by the Labour Court, Trichy dated 31.08.2009, in I.D.No.140 of 2003, in and by which, confirming the dismissal order passed by the Managing Director, Tamil Nadu Transport Corporation (Madurai) Limited, Madurai, the second respondent herein, dated 15.12.2001, the petitioner has filed this writ petition.
2.Though initially, the writ petition was filed by N.Muruganandam- workman challenging the award of the first respondent, during the pendency of the writ petition, he died on 04.04.2014, subsequently, the wife of the deceased workman namely, M.Mallika filed a petition in M.P(MD)No.1 of 2014 to substitute herself as the petitioner in the place of the deceased and the said petition was allowed by this Court on 17.06.2014.
3.The facts, in a nutshell are as follows:
The husband of the petitioner was working as conductor in the respondent transport Corporation. While he was on duty, on 30.03.2001, in the bus bearing No.TN-57-N-0905, it is alleged that he misappropriated a sum of Rs.21.75/- being the dues of ticket fare collected from the passenger travelled from Trichy to Tiruvarur, though actually, the passenger travelled from Thuvakudi to Sengipatti by paying a sum of Rs.5/- only. It is further stated that when the Checking Inspectors boarded in the bus at Pudukudi for checking purpose, according to the workman, due to crowd of passengers in view of Velankanni, he could not fill up the invoice, the Checking Inspectors permitted him to complete the invoice and thereafter, he handed over the invoice and the tickets. Pursuant to the same, it was found that one passenger out of 63 passengers travelled in the bus was in possession of ticket bearing No.69018 in which a sum of Rs.26.75 was noted as ticket fare whereas in the carbon copy it was noted as Rs.5/-. It is further stated that the deceased petitioner pleaded before them that due to heavy crowd in the bus, the ticket was given to the passenger without noting the correct ticket fare as blank ticket and only after the passenger informed the same, he get it back and filled the fare as Rs.26.75 in a hurried manner instead of Rs.5/- . Not being satisfied with the explanation offered by the petitioner's husband the Checking Inspectors obtained statement from the passenger and permitted the passenger to get down at Sengipatti and submitted a report to the second respondent. Based on the said report, the second respondent suspended the petitioner's husband from service pending enquiry and initiated disciplinary action against him. It is stated that even though the charges levelled against him were not proved in the domestic enquiry, the second respondent dismissed the petitioner's husband from service. Challenging the said order of dismissal, the petitioner's husband raised an industrial dispute in I.D.No.140 of 2003 before the Labour Court for setting aside the order of dismissal with back-wages and other consequential monetary benefits. The Tribunal, after consideration of materials available on record as well as the arguments advanced by both the parties, by an order dated 31.08.2009 confirmed the order of dismissal passed by the second respondent by dismissing the I.D.No.140 of 2003. Aggrieved by the same, the present writ petition has been filed.
4.Heard Mr.S.Govindan, learned counsel appearing for the petitioner and Mr.S.C.Herold Singh, learned counsel for the second respondent.
5.Learned counsel appearing for the petitioner would contend that the petitioner's husband was entered into service on 19.10.1981. He was promoted up to Selection Grade Conductor and he was put in 20 years of service in the respondent corporation. He would further contend that on 30.08.2001, while he was on duty, there was some discrepancy with regard to the fare collected and ticket issued for a sum of Rs.26.75 and therefore, disciplinary proceedings were initiated and he was dismissed from service on the ground that he had collected long distance fare for short distance thereby misappropriated a sum of Rs.21.75 being the difference of the ticket fare.
6. Learned counsel appearing for the petitioner would contend that without considering his explanation in a proper perspective, the second respondent management conducted a domestic enquiry. He would further contend that the second respondent had failed to examine the passenger in the domestic enquiry to prove the alleged charges framed by the second respondent. Further, he produced the concerned passenger for the domestic enquiry and he was examined as a witness on the side of the petitioner's husband.
7.He would further contend that during the enquiry proceedings, though the concerned passenger came forward to give evidence deposing before the Enquiry Officer that he tendered Rs.5/- only for his travel from Thuvakkudi to Sengipatti and got down at Sengipatti, there was no reason for the second respondent Corporation to allege that there is misappropriation of Rs.21.75/- . He would further contend that the concerned passenger deposed before the Enquiry Officer that his statement was obtained by the Checking Inspector at the spot under threat and coercion. He would further contend that there was no excess cash found out at the time of checking by the Checking Inspectors. The Enquiry Officer and the Labour Court abruptly rejected the defence evidence adduced by the passenger concerned without assigning any acceptable reasons. He would further contend that while conducting enquiry, the hearing impairment of the petitioner's husband was not taken note of by the second respondent.
8.Contending that the punishment imposed on the petitioner's husband is disproportionate to the charges levelled against him, learned counsel for the petitioner prayed for setting aside the award of the Labour Court. In support of his contentions, learned counsel for the petitioner relied on the following decisions:-
?(i)In U.P.State Road Transport Corporation Vs. Mahesh Kumar Mishra reported in (2000) 3 SCC 450,
(ii) In Karnataka State Road Transport Corporation Vs.B.S.Hullikatti reported in (2001) 2 SCC 574 ,
(iii)In Rajasthan State Road Transport Corporation Vs. Babulal Jangir reported in 2013 (4) LLN 1 (SC)
(iv)In Managing Director, T.N.State Transport Corporation Vs.Presiding Officer, III Additional Labour Court, Chennai reported in 2014 II LLJ 295
(v)In Ishwar Chandra Jayaswal Vs.Union of India reported in (2014) 2 SCC 748 and
(vi)In K.Kannan Vs.Indian Bank reported in 2016(1) LLN 475 (mad.)?
9.Per contra, learned counsel for the second respondent would submit that when the Checking Inspectors made a surprise inspection, it was found that a passenger was in possession of ticket for a sum of Rs.26.75/- was noted in the original ticket whereas in the carbon copy impression it was noted as Rs.5/- which would cause loss to the respondent Corporation. He would further contend that based on the said delinquency, charges were framed and after examining him and conducting full fledged enquiry, the second respondent imposed the punishment of dismissal of service which was also affirmed by the Labour Court. Hence, he prayed for the dismissal of the writ petition.
10.I have carefully considered the rival submissions made on either side and perused the materials available on record and given my anxious consideration to the issue involved in this writ petition.
11.Admittedly, while the petitioner's husband was on duty on 30.01.2001, there was inspection by the Checking Inspectors wherein it was found that a passenger was in possession of ticket for a sum of Rs.26.75/- whereas in the carbon copy, it was noted as Rs.5/-. The said charge was not proved by examining the concerned passenger who travelled on the particular date. In similar circumstances, in Mahesh Kumar Mishra (supra), the Supreme Court has held as follows:-
6.It was in the background of these circumstances that the High Court exercised its discretion under Article 226 of the Constitution and interfered with the quantum of punishment inflicted by the Disciplinary Authority. It may be that the order of dismissal was held to be valid and proper by the U.P. State Public Services Tribunal but the Tribunal also overlooked the fact that though sufficient evidence could have been collected at the spot to indicate that the passengers to whom tickets were issued by the respondent had boarded the Bus at the "High Court" and not at "Zero Road" but this was not done. It was a Bus plied in the City itself and, therefore, the passengers, who were available in the Bus, being local passengers, could have been approached at the spot for stating whether they had boarded the Bus at the "High Court" or at "Zero Road". Learned counsel for the appellants has placed reliance upon an unreported decision of this Court in Civil Appeal No. 9754 of 1995, arising out of SLP(C) No. 1960 of 1994 (U.P. State Road Transport Corporation & Anr. v. Om Prakash Pandey), in which the order of the High Court, by which interference was made with the punishment.inflicted upon the delinquent employee of the Corporation, was set aside. This case is clearly distinguish-able on the ground that a number of passengers were allowed to travel without tickets and, therefore, the misconduct imputed to the employee was serious. This is not the case here as the respondent had issued tickets to all the passengers, who were found travelling in the Bus, but the dispute was only with regard to the spot or place at which they had boarded the Bus. To put it differently, the dispute was whether they had boarded the Bus at "Zero Road" or at the "High Court". In these circumstances, the High Court was justified in interfering with the quantum of punishment.
7.A Three-Judge Bench of this Court in B.C. Chaturvedi v. Union of India & Ors., [1995] 6 SCC 749, laid down as under :-
"18.A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact- finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority, shocks the conscience of the High Court/ Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in sup-port thereof."
8.This will show that not only this Court but also the High Court can interfere with the punishment inflicted upon the delinquent employee if, that penalty, shocks the conscience of the Court. The law, therefore, is not, as contended by the learned counsel for the appellants that the High Court can, in no circumstance, interfere with the quantum of punishment imposed upon a delinquent employee after disciplinary proceedings.
9.Another Three-Judge Bench of this Court in Colour-Chem Ltd. v. Alaspurkar and Others, [1998] 3 SCC 192, has also laid down the same proposition and held that if the punishment imposed is shockingly disproportionate to the charges held proved against the employee, it will be open to the Court to interfere.
10.As pointed out earlier, the order of the High Court though extremely brief, must have been based on overall consideration of the facts of the case and it must have exercised its jurisdiction only when it was shocked to notice that though all the passengers had been issued tickets, the only dispute was with regard to the point at which they had boarded the Bus for which the punishment of dismissal from service was highly disproportionate.
11.We have already noticed above that instead of charging a fare of Rs. 1.80, the respondent had charged a fare of Rs. 1.50 from the passengers. While the appellants maintained that the passengers had boarded the Bus at the "High Court" and were to alight at "Manauri", the respondent contended that the passengers had boarded the Bus at "Zero Road" and were to get down at "Manauri" and, therefore, he had rightly charged Rs. 1.50 from those passen-gers. This fact could have been established beyond doubt if any of those passengers was examined at the domestic enquiry, or the Transport Inspector, who checked the Bus, could have recorded their statement at the spot. This was not done and the reliance was placed only upon the report of the Transport Inspector which was signed by the respondent also. It was not a case where the passengers were allowed to travel without tickets so that the amount of fare charged from the passengers could be pocketed by him.
12.Under these circumstances, we do not agree with the contention of the counsel for the appellants, that the High Court should not have interfered with the quantum of punishment inflicted upon the respondent. The appeal is, therefore, dismissed but without any order as to costs.
12.In yet another decision of this Court made in W.P(MD)No.1273 of 2009, dated 16.04.2014, this Court, after following the decision of this Court in T.N.State Transport Corporation (Villupuram) Ltd., Vs. Joint Commissioner of Labour reported in (2009) 1 MLJ 975, has held that the cash bag of the conductor should be verified before coming to the conclusion that the workman collected excess fare without issuing the correct ticket. The relevant portion of the said order is extracted hereunder:-
?6.In support of his contentions, the learned counsel for the second respondent also placed reliance upon the decision of this Court in T.N.State Transport Corporation (Villupuram) Ltd., vs. Joint Commissioner of Labour reported in (2009)1 MLJ 975, wherein at paragraph 13, it has been categorically held as follows:
?13.The learned JCL has found that the Checking Team has not carried out the vital aspect of checking the cash bag of the Workman simultaneously when they prepared the Check Report and obtained the statement from the passenger and the Workman. Learned JCL has taken the view that whether there was shortage or not should have been tested with reference to checking of the cash bag. As rightly observed by the Tribunal that the gist of the charge was that the Workman collected Rs.4/- but has not issued the ticket. In such circumstances, cash in the cash bag would have been the best evidence to bring home the charge. The Checking Team consisting of four members could have very well checked the cash bag and the Checking Team could have well established that the Workman collected the fare without issuing the ticket. The finding of the learned JCL that there was collection of Rs.4/-, but the ticket was not issued was not a bona fide conclusion. Such finding cannot be said to be perverse warranting interference.?
7. Keeping in mind the above decision of this Court, if the case on hand is analysed, it is clear that the excess amount available in the cash bag of the second respondent has not been proved by checking the cash bag and therefore, the finding of the Labour Court cannot be interfered with.
Moreover, the petitioner Management has not made out a ground warranting interference of the order of the Labour Court.
13.In similar circumstances, the Hon'ble Supreme Court in B.S.Hullikatti (supra), has held that the employee died during the pendency of the proceedings, widow of the deceased employee is entitled for retiral benefits as the question of re-instatement does not arise. Paragraphs 6 and 7 are extracted hereunder for the purpose of this case.
? 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 knowing they do not collect any fare or the correct amount of fare.
7.In our opinion, the order of dismissal should not have been set aside, but we are informed that in the meantime the respondent has already superannuated. We, therefore, on the special facts of this case, do not set aside the order of reinstatement, but direct the respondent would not be entitled to any backwages at all but he would be entitled to the retiral benefits.?
14.As stated supra, the petitioner's husband was not allowed the passengers to travel without tickets so that the amount of fare charged from the passengers could be pocketed by him and therefore, the punishment imposed by the second respondent is disproportionate to the charges levelled against him and the same is liable to be set aside. Consequently, the award of the Labour Court confirming the punishment imposed by the second respondent is also liable to be set aside.
15.In the result, the writ petition is allowed. Consequently, the impugned orders are set aside. Since, the deceased workman died during the pendency of the writ petition, the question of reinstatement of service of the workman does not arise, but his service can be counted for retiral service and pensionary benefits. However, the petitioner is entitled to receive retiral benefits. Therefore, the 2nd respondent is directed to settle the retiral benefits of the petitioner's husband within a period of twelve weeks from the date of receipt of a copy of this order. No costs.
To The Presiding Officer, Labour Court, Tiruchirappalli..