Madras High Court
Pattukottai Azhagiri Transport ... vs Presiding Officer, Ii Additional ... on 21 December, 2001
Equivalent citations: [2002(93)FLR456], (2002)IILLJ418MAD, (2002)1MLJ612
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Aggrieved by the award of the II Additional Labour Court, Madras, dated August 11, 1993 in I.D. No. 414 of 1989, Pattukottai Azhagiri Transport Corporation, Vellore has filed the above writ petition.
2. It is seen that petitioner is a transport Corporation wholly owned by the Government of Tamil Nadu. The second respondent A.A. Swamidoss was employed as conductor. He was assigned duty in Route No. 56-B on June 16, 1976. The bus was subject to a surprise check by the checking squad of the Corporation at about 17.00 hours, various irregularities were found on the part of the 2nd respondent. He also misbehaved towards the checking inspectors and obstructed them from getting statements from the passengers and also threatened the concerned passengers. He refused to receive the I.R. memo. On accepting the I.R. memo after sometime, he tore all the I.R. book and ran away from the spot. The checking staff submitted their report dated June 17, 1976 and after scrutinizing the said report, the 2nd respondent was placed under suspension on June 18, 1976 and a charge sheet dated July 14, 1976 was issued containing certain charges against him. The 2nd respondent submitted his explanation dated October 8, 1976 and since the same was not satisfactory, a domestic enquiry was contemplated, a retired District Judge was appointed as enquiry officer. The 2nd respondent refused to participate in the enquiry and an ex parte enquiry was conducted. Though the enquiry officer submitted his report, in order to give one more opportunity to the second respondent, a second enquiry was: ordered and appointed a fresh enquiry officer. The 2nd respondent fully participated in the enquiry and the enquiry officer submitted his report holding the petitioner guilty of charges 1, 2 and 4 to 8. Based on the same, show cause notice dated July 19, 1977 was issued asking him to show cause as to why he should not be dismissed from services. The 2nd respondent submitted his explanation dated August 22, 1977 and not satisfied with the same, an order of dismissal was passed by proceedings dated January 25, 1977. The 2nd respondent raised a dispute. As per the order of this Court in W.P. No. 1429 of 1989, the Government referred the non-employment issue, which resulted in I.D. No. 414 of 1989 before the first respondent. Before the Labour Court, the workman-2nd respondent did not let in any oral or documentary evidence. On the other hand, the petitioner- Transport Corporation examined a witness as M.W. 1 and marked as many as 16 exhibits as Exs. M-1 to M-16. By the impugned award dated August 11, 1993, the Labour Court has directed the reinstatement of the 2nd respondent with continuity of service and back wages from April 12, 1989. Aggrieved by the same, the transport Corporation has filed the present writ petition.
3. Heard the learned counsel for the petitioner-Transport Corporation as well as the second respondent-conductor.
4. The only point for consideration in this writ petition is whether the Labour Court, while exercising power under Section 11-A of the Industrial Disputes Act, is justified in modifying the punishment of dismissal into reinstatement with service benefits without back wages for the period between October 15, 1977 and April 12, 1989.
5. It is clear from the above question that it is unnecessary to go into the domestic enquiry and its conclusion. However, in order to appreciate whether the punishment of dismissal is warranted or lesser punishment as awarded by the Labour Court is justified, it must be relevant to note the charges levelled against the second respondent. The charge sheet dated July 14, 1976 contains the following charges:
"(i) Fare collected 2 x 50 p. but failed to issue tickets to a group of two illiterate passengers travelling from Mettupalayam to Ponneri.
(ii) Fare collected 2 x 50 p. but failed to issue ticket to another group of two passengers travelling from Navalur Erikarai to Ponneri.
(iii) Obstructed and threatened passengers not to give any statements against him.
(iv) Fare collected 50p. from a lady passenger travelling from Mettupalayam to Ponneri and issued 5 p. tickets instead of 50 p. tickets to her.
(v) Wantonly failed to collect fare 5 x 50 p. and to issue tickets to 5 passengers travelling from Electricity Board Office to Ponneri with the mal-intention swindling the money by collecting fare from them at the time of alighting.
(vi) Had an excess of Rs. 4.80 in the day's collection after seizure of unpunched tickets.
(vii) Tore off the I.R. book when handed over to him to obtain his acknowledgment (43143 to 43150).
(viii) Misbehaved towards the checking staff before the public.
(ix) Dereliction of duty. (x) Breach of trust".
As stated earlier, in the enquiry headed by a retired District Judge, he was given adequate opportunity. The second respondent also fully participated in the enquiry and the enquiry officer submitted his report holding the 2nd respondent herein guilty of charge Nos. 1, 2 and 4 to 8. Based on the said report, the management issued a second show cause notice dated July 19, 1977, asking him to show cause as to why he should not be dismissed from service. The second respondent also submitted his explanation on August 22, 1977 and not satisfied with the same, the management passed an order of dismissal by proceedings dated January 25, 1977.
6. While considering the order of the management dismissing the conductor from service, the Labour Court, after holding that there is no reference of his past service records and the punishment is highly disproportionate, modified the same by ordering reinstatement with service benefits. The only punishment imposed on him is that he was not given back wages for the period between October 25, 1977 to April 12, 1989. Mr. Sanjay Mohan after referring to the proved charges as well as Section 11-A of the Industrial Disputes Act, would contend that the jurisdiction under Section 11-A has to be exercised judicially and judiciously. He also contended that the 2nd respondent has not only after collecting the fares failed to give tickets, but misbehaved with the checking staff in front of the public and tore the I.R. memo when it was given to him for his acknowledgment. According to him, the Labour Court has not kept in mind all the vital aspects including the delay of 16 long years and mechanically ordered reinstatement of the 2nd respondent, that too, with continuity of service and attendant benefits which are totally without jurisdiction. In support of his contention, he relied on a decision of the Apex Court in Janatha Bazar v. Secretary, Sahakari Noukarara Sangha, . In an identical factual position, the Supreme Court has set aside the order of the High Court confirming the directions given by the Labour Court in reinstating the workman with 25 per cent back wages. In that case, charges against the workman for breach of trust and misappropriation of fund entrusted to him for the value mentioned in the charge had been established. After holding that the charges had been established, the Labour Court set aside the order passed by the management removing the workman from service and ordered reinstatement with 25 percent back wages. The said order was confirmed by the High Court. Setting aside both the orders, Their Lordships of the Supreme Court have held as follows: at p. 1397 of LLJ:
"6. As stated above, the learned single Judge and the Division Bench in writ appeals confirmed the findings given by the Labour Court that charges against the workmen for breach of trust and misappropriation of funds entrusted to them for the value mentioned in the charge-sheet had been established. After giving the said findings, in our view, the Labour Court materially erred in setting aside the order passed by the Management removing the workmen from the service and reinstating them with 25% back wages. Once act of misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstalling the employees in service. Law on this point is well settled (Re: Municipal Committee, Bahadurgarh v. Krishnan Behari . In U.P. State Road Transport Corporation v. Basudeo Chaudhary 1997 (2) SCC 370, this Court set aside the judgment passed by the High Court in a case where a conductor serving with the U.P. State Road Transport Corporation was removed from service on the ground that alleged misconduct of the conductor was attempt to cause loss of Rs. 65 to the Corporation by issuing tickets to 23 passengers for a sum of Rs. 2.35 but recovering at Rs. 5.35 per head and also by making entry in the way bill as having received the amount of Rs. 2.35, which figure was subsequently altered to Rs. 2.85.
The Court held that it was not possible to say that Corporation removing the conductor from service has imposed a punishment which is disproportionate to his misconduct. Similarly in Punjab Dairy Development Corporation Limited v. Kola Singh, this Court considered the case of a workman who was working as a dairy helper-cum-cleaner for collecting the milk from various centres and was charged for the misconduct that he inflated the quantum of milk supplies in milk centres and also inflated the quality of fat contents where there were less fat contents. The Court held that, "in view of proof of misconduct a necessary consequence will be that Management has lost confidence that the workmen would truthfully and faithfully carry on his duties and consequently the Labour Court rightly declined to exercise the power under Section 11-A of the Industrial Disputes Act to grant relief with minor penalty."
7. In view of the aforesaid settled legal position, the High Court materially erred in confirming the directions given by the Labour Court in reinstating the respondent-workmen with 25% back, wages. For giving the aforesaid direction, the Labour Court considered that there is no evidence regarding the past misconduct by the employees and, therefore, it can be observed that they have rendered several years of service without any blemish and to some extent, there was lapse on the part of the Management.
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".
As stated earlier, the facts in the case before the Supreme Court are almost similar to that in the present case and the Supreme Court has held that in view of proof of misconduct a necessary consequence will be that Management has lost confidence that the workman would truthfully and faithfully carry on his duties and in such a circumstance, the Labour Court/Tribunal is not justified in modifying the punishment with minor penalty by exercising power under Section 11-A of the Industrial Disputes Act. In our case, for modifying the punishment of dismissal, it considered that there is no evidence regarding past misconduct by the employee. For this, their Lordships have emphasised that in the case of proved misappropriation "there is no question of considering past record." Another decision referred to by Mr. Sanjay Mohan is in the case of Karnataka State Road Transport Corporation v. Hullikatti 2001-I-LLJ-725 (SC). In that case, the conductor had collected at a particular trip of the bus Rs. 2.25 from each of the 35 passengers but had issued tickets of the denomination of Rs. 1.75 only. The charge was found to be proved in the enquiry and the management based on the said report, dismissed him from service. The Labour Court set aside the punishment of dismissal on the ground that the charge had not been proved that the conductor had collected the amount of Rs. 2.25 from the passengers. On a writ petition filed by the corporation, the learned single Judge dismissed the same after noting that the Labour Court has awarded 50 per cent of the back wages with reinstatement. Realising that this was a mistake, the single Judge rectified the same and ordered reinstatement with full back wages. The letters patent appeal was dismissed. Hence the appeal before the Supreme Court by the Karnataka State Road Transport Corporation. Before the Supreme Court, it was stated that the workman had been in service as a conductor for nearly 25 years. Accordingly the Supreme Court has observed that:
"... .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 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 ipso 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.
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."
7. The other decision cited by the learned counsel for the petitioner is in the case of R. Manoharan v. Presiding Officer, Labour Court, 2001 (3) LLN 1153 K.P. SIVASUBRAMANIAM, J., in similar circumstance, namely, failure to issue correct fare tickets and accounting the same to the Management, has held thus:
"In the present case, the nature of duties of a conductor is very onerous and he is holding the revenue of the Corporation in trust. It is not the amount which was found to be misappropriated which is important namely, in the present case Rs. 3.75. What is necessary to be borne in mind is the nature of duties and the action of the delinquent resulting in loss of revenue to the Corporation. In fact, the Supreme Court in a later judgment in Janatha Bazar v. Secretary, Sahakari Naukarara Sangha, (supra), has held that the quantum of misappropriation was really irrelevant. When once misappropriation is proved then it was within the discretion of the employer to consider the same and impose the maximum penalty."
All the three decisions squarely support the case of the petitioner-Corporation and by applying the same, I am of the view that the Labour Court committed an error in modifying the penalty while exercising jurisdiction under Section 11-A of the Industrial Disputes Act.
8. Learned counsel appearing for the 2nd respondent-workman in support of the award of the Labour Court, has relied on the decisions:
(1) Hind Construction and Engineering Company Limited v. Their Workman ; (2) S.B.I., Pune v. P.D. Apshankar v. P.O., C.G.I.T, Bombay 1997-II-LLJ-573 (Bom); (3) Depot Manager, APSTRC v. Masood, 1992 Lab. I.C. 1354; (4) Santak Singh v. 9th Industrial Tribunal, 1984 Lab I.C. 817; (5) S.K. Giri v. Home Secretary, M.O.H Affairs and Ors., ; (6) Karnataka State Road Transport Corporation v. B.M. Patil 1996-II-LLJ-536 (Kant).
I have carefully perused all the above referred decisions. In all these cases, they considered the power of the Labour Court/Tribunal under Section 11-A of the Act and there is no dispute regarding the general proposition of law laid down in those cases. Since none of them is directly on the point, it is unnecessary to refer the facts and the ultimate decision taken therein.
9. In the earlier part of my order, I have referred to the charges levelled against the conductor. Except charge No. 3, all other charges have been proved. There is no dispute that he was given adequate opportunity in the enquiry. He not only participated in the enquiry, but also cross-examined the Management witnesses. Though details regarding past record were not shown in show cause notice as well as in the order of punishment, as observed in the Supreme Court decisions, in case of proved misappropriation, it is immaterial to consider past records. On this ground, namely, for non-considering the past records, the Labour Court cannot substitute the penalty imposed by the employer. Further as rightly argued by Mr. Sanjay Mohan, the employer in our case Transport Corporation is entirely depending on the conduct of the conductor in collecting fares from the passengers and depositing them with the concerned officers. It is a responsibility of the conductor of a bus belonging to the Transport-Corporation to collect fare from the passengers and deposit the same with the officers. He acts in a fiduciary capacity and it would be a case of gross misconduct if knowingly he does not collect any fare or any correct amount of the fare from the passengers, in such cases, dismissal from service would be a proper punishment. The Labour Court is expected to exercise its discretion under Section 11-A of the Industrial Disputes Act judicially and its order modifying the punishment of dismissal into reinstatement foregoing back wages for certain period, merely on the ground of non-consideration of past records cannot be sustained. The 2nd respondent as a bus conductor of the State Transport Corporation is duty bound to issue tickets to all the passengers and collect correct fare from them and deposit the same with the Corporation. In our case, he collected fares, but failed to issue tickets to some passengers, collected 50 paise from a lady passenger, but issued 5 paise-ticket instead of 50 paise ticket, failed to collect fares 5 x 50 paise and issued tickets to 5 passengers and also misbehaved towards checking staff before the public. As stated earlier, it is the responsibility of the bus conductor to collect the correct fare from the passengers and deposit the same with their employer. Since they act in a fiduciary capacity, as observed by the Supreme Court, it would be a case of gross misconduct, if knowingly they do not collect any fare or correct amount of fare.
10. In the light of what is stated above and in my considered opinion, the order of dismissal should not have been modified; accordingly the impugned order of the Labour Court dated August 11, 1993 is set aside. The writ petition is allowed. No costs. Connected W.M.P. is closed. It is stated that pursuant to the direction in Section 17B application, the petitioner-Corporation reinstated the second respondent-conductor and I am informed that he has few more years of service. It is for the management-Transport Corporation to take appropriate decision.