Bombay High Court
Divisional Controller, M.S.R.T.C. ... vs Giridhar Raghunath Derkar on 22 February, 1995
Equivalent citations: 1995(4)BOMCR646, (1996)IIILLJ638BOM
ORDER
1. Legality and correctness of the award passed by the Labour Court, Chandrapur on June 22, 1993 is under challenge in this writ petition.
2. The only contention raised by the learned counsel for the petitioner Corporation is that the Labour Court, Chandrapur has committed serious error of law in setting aside the punishment of dismissal awarded to the respondent as shockingly disproportionate despite the fact that the Labour Court found that enquiry conducted into the conduct of the respondent was just and fair and that the findings recorded by the Enquiry Officer were legal, correct and based on the principles of natural justice. The learned counsel for the petitioner Corporation contended that in one year's service, the respondent has indulged into misconduct of misappropriatations three times and twice before the present incident, the respondent was found guilty of the misconduct of misappropriation of the petitioner Corporation's funds and, therefore, punishment of dismissal was just and proper which has wrongly been set aside by the Labour Court, Chandrapur.
3. On the other hand, Mr. Bhoyar, the learned counsel for the respondent-employee submitted that the present enquiry into the misconduct of the respondent related to misappropriation and previously, the respondent was not charged for carrying without ticket passengers and since the Labour Court has rightly exercised the discretion in the facts and circumstances of the case, it is not open to this Court to substitute the finding recorded by the Labour Court. Mr. Bhoyar in support of his arguments has relied upon Scooter India Limited v. Labour Court, Lucknow (1989-I-LLJ-71) (SC); Baldev Singh v. PO, Labour Court, Patiala ; Gujarat State Road Transport Corporation v. Danaji Sukaji Kodiyar 1994 (1) Cur LR 606; and judgment of this Court in Sudhakar Haribhau Dadhe v. PO, 2nd Labour Court (Writ Petition No. 976 of 1985, decided on June 19, 1992).
4. Before I advert to the rival contentions raised by the parties, briefly the facts of the case may be noted. The respondent (for short the 'employee') was appointed on the post of conductor with the petitioner-Corporation in the year 1984. On February 7, 1987 while the employee was on duty on Bus No. MTB-1902 on Kurkheda-Gevardha route, the said bus was checked by the checking staff near Gevardha village and it was found that out of 65 passengers travelling in the bus, 22 passengers (21 adults and 2 half) were without tickets. During the course of checking, the conductor-employee was found to have recovered fare from those without-tickets passenger @ Rs. 0.60 ps and Rs. 0.30 ps respectively and after recovering the fare, he had permitted those passengers to board the bus, but the employee did not issue tickets to them. The checking staff also found that the employee was having Rs. 44.85 in excess in the cash bag and for that, the employee could not furnish any explanation. The checking staff recorded the statements of passengers on the spot as well as the statement of employee and in his statement he admitted that 22 passengers were travelling without tickets and also admitted the excess amount in the cash bag. The employee was served with charge sheet on February 20, 1987 containing the statement of allegations. Before the Enquiry Officer, the employee participated and the Enquiry Officer after holding the enquiry, concluded that all the charges were proved. After receipt of enquiry report, the disciplinary authority gave a notice to show cause to the employee and to the show-cause notice, the employee submitted his reply and thereafter the disciplinary authority by its order dated July 25, 1987 dismissed the employee from his service. The dismissal order was challenged by the employee by raising industrial dispute and the same was referred to the Labour Court, Chandrapur for its adjudication. The Labour Court after holding the enquiry, held that the enquiry conducted by the Enquiry Officer against the employee was just and proper and the findings recorded by the Enquiry Officer were legal, correct and based on principles of natural justice. However, the Labour Court held that the punishment awarded was shockingly disproportionate and accordingly, held that the employee was entitled to reinstatement without continuity of service and full back wages. The award passed by the Labour Court is under challenge in the writ petition.
5. The Labour Court while considering the question as to whether punishment awarded to the employee was shockingly disproportionate or not, observed thus :-
"It is argued for employee that punishment is shockingly disproportionate looking to his past service record. It is filed on record at Exh. 49 Ex. 49 shows that employee was punished for two times by imposing penalty of Rs. 20/- and Rs. 25/- for carrying luggage without ticket and also for being found of short cash. The service of employee is for one year. During his one year's service, he committed misconduct listed at Ex. 49. I think that this is a minor misconduct committed by him during the service of one year. As for present misconduct the employee was found with amount Rs. 44-45 in excess. This amount seems to be small amount looking to facts and circumstances of present misconduct. If employee is removed from services in that case he will have no alternative except to come in street. He is out of employment since his dismissal with effect from July 25, 1987 till this date. Till this period he is out of employment, I think that this is a sufficient punishment imposed upon him. Employee rendered his one year's service with employer. Hence looking to his short service tenure, I find dismissal is shockingly disproportionate. I, therefore, set aside dismissal and held that dismissal is shockingly disproportionate. I, therefore, answer issue No. 3 in affirmative".
6. From the aforesaid discussion of the Labour Court, certain facts are clear. The employee has been punished twice for the misconduct, on one occasion, for carrying 2 Mounds of luggage in that fare and on second occasion, he was found short of cash. For the first misconduct, the employee was awarded punishment of fine of Rs. 20/- while for the second misconduct, the petitioner-Corporation imposed a fine of Rs. 25/- upon the employee. Both these misconducts were committed by the employee hardly within one year of his service. Despite the minor punishments awarded to the employee twice, the employee was found guilty of having committed misconduct of misappropriation in the present incident. In a very short span of service, thus, the employee has been repeatedly found indulging into misconducts. Despite these two misconducts, the Labour Court found that the previous two misconducts were minor and as regards the third misconduct, punishment of dismissal of the employee from service, would be too harsh and he has already suffered enough in remaining without employment for 5-6 years and, therefore, reinstatement could be awarded.
7. The aforesaid facts which have been recorded by the Labour Court in para 12 of its award are not disputed by either of the parties. The question is on the facts found, whether the punishment of dismissal awarded was shockingly disproportionate and commensurate with the gravity of misconduct or not.
8. First of all, I may refer to the judgment of the apex Court in Baldev Singh's case (supra) on which strong reliance has been placed by the learned counsel for the employee. In paragraphs 8 and 9 of the said judgment, the Supreme Court has held as under at pp. 23, 24 :-
"8. The petitioner is admittedly an employee of the Punjab Roadways, Moga as a driver and on 14th November 1977, he was driving bus No. 5803. The bus started from Bhatinda and was bound for Nihal Singh-Wala via Moga. Admittedly the driver did not take the bus to Nihal-Singh-Wala but he took back the bus to Jawahar-Singh-Wala. He was charge-sheeted for causing damage to the Punjab Roadways to the extent of Rs. 22,50 by way of two miles short bus trip. After enquiry into the charges duly and after giving him the opportunity of hearing the management dismissed him from service finding that the charge had been proved. The Labour Commissioner, Punjab Chandigarh thereafter referred the dispute regarding the justifiability of order of termination of service to the Labour Court, Patiala under Sec. 10(1)(c) of the Industrial Disputes Act, 1947. The Labour Court, Patiala on hearing the parties and considering the evidence found that the workman failed to show that the enquiry held was neither fair nor proper. It was, however, submitted on behalf of the workmen that the punishment of termination of service awarded was not in consonance with the nature and gravity of the charges levelled against the workman and the workman should be imposed a lesser punishment. The Tribunal in consideration of the submission made an order of reinstatement with continuity of service but without back wages. The Tribunal has further held that the period of forced idleness be treated as leave of the kind due and in case no leave is due as leave without pay. The reference was thus disposed of by order dated 29th April 1982.
This order of the Tribunal, in our considered opinion, is quite in consonance with the provisions of Section 11A of the Industrial Disputes Act, 1947 which empowers the Tribunal to make an award, "directing reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case require". In the instant case we have stated hereinbefore that the Tribunal clearly found that the enquiry was held fairly and properly and there was no violation of the principles of natural justice. The Tribunal on considering the harshness of the punishment in consideration of the nature of the charge directed reinstatement of the workmen with continuity of service but without back wages. There was also a further direction that the period of absence from service is to be treated as leave of the kind due and in case no leave is due as leave without pay. The Tribunal, therefore, did not direct for payment of back wages to the petitioner. On the other hand it directed specifically that the period the petitioner was kept out of the duty has to be treated as leave of the kind due and in case no leave is due has to be treated as leave without pay. This award of the Tribunal is in conformity with the provisions of Section 11A of the said Act. There is no lack of jurisdiction or want of jurisdiction in making the order in question and it cannot be said that the order is contrary to the provisions of Section 11A of the said Act which vests the Labour Tribunal to whom a dispute has been referred with jurisdiction to pass appropriate orders which the Tribunal will think proper and expedient in the facts and circumstances of the case. We do not find any infirmity far less any illegality in the above order of the Tribunal..."
9. In Scooter India Ltd. v. Labour Court, Lucknow, (1989-I-LLJ-71), the Supreme Court has held as under as at P. 73 :
"The High Court has considered at length the nature of the powers conferred on the Labour Court by Section 6(2A) of the Act for setting aside an order of discharge or dismissal of a workman and substituting it with an order of lesser punishment and as such it cannot be said that the High Court has failed to consider the facts in their entirety. As regards the third contention, we may only state that the Labour Court was not unaware of the nature of the charges framed against the respondent or the findings rendered by the Inquiry Officer and the acceptance of those findings by the Disciplinary Authority. The Labour Court has observed as follows :-
"The workman has unfortunately to blame himself too much for the bad blood which has developed between him and the management and therefore his conduct, motivated by ideals which are not relevant has been far from satisfactory in so far as it was rough, bordering on rudeness and with highly exaggerated sense of his duties. In these circumstances it will meet the ends of justice if back wages to the extent of 75% are allowed to the workman. I would make my award accordingly but there shall be no order as to costs".
it cannot therefore be said that the Labour Court had exercised its power under Section 6(2A) of the Act in an arbitrary manner and not in a judicial manner. The Labour Court has taken the view that justice must be tempered with mercy and that the erring workman should be given an opportunity to reform himself and prove to be a loyal and disciplined employee of the petitioner Company. It cannot therefore be said that merely because the Labour Court had found the enquiry to be fair and lawful and the findings not to be vitiated in any manner, it ought not to have interfered with the order of termination of service passed against the respondent in exercise of the powers under Section 6(2A) of the Act".
10. The learned Single Judge of this Court in Sudhakar's case (supra) has held as under :-
"5. Without ticket passengers wore found travelling from Kamptee to Nagpur. According to the prevalent rate, the loss which the Corporation would have suffered was not more than Rs. 9,90 or say Rs. 10/- in all. It is also in the evidence of the petitioner, that soon after the incident, he was not sent on duty for six months, the management probably anticipating loss of further revenue. During this period, he claims that he did not receive wages. It is also incumbent, upon the Competent Authority to take into account the gravity of misconduct, the previous record of THREE YEARS and any other information in possession of the undertaking while inflicting the punishment under the Standing Orders in force. The record of service if filed on record and surprisingly, we find four items enumerated therein, the last being April 9, 1976. No punishment is inflicted for two misconducts alleged to have been committed. In the other two items, we find that once he is punished and imposition of fine was levelled for carrying excess luggage and in the other, though he was dismissed for misconduct committed on January 26, 1976, he was let off in appeal. It is not necessary that the past record should be scrutinised in each by the Court because what the Competent Authority is required to do is to consider that record and nothing more. This Court has probed into the past record only with a view to ascertain whether the punishment as inflicted was proper in the circumstances and my answer is in the negative. Even though the misconduct is fully established, the amount involved is negligible. The past record does not appear to be bad and particularly if three years' period is considered. The learned Judge of the Labour Court could have interfered with the punishment under the provisions of Section 11A but he failed to exercise those powers vitiating the Award. The petitioner deserves one more chance of employment and, therefore, relief of reinstatement could be granted but that reinstatement should he without payment of any back wages. Not to pay the said wages to the petitioner for the intervening period would be enough punishment for the proved misconduct. The relief of reinstatement without payment of back wages would be in accordance with law. (See Baldev Singh v. Presiding Officer, Labour Court, Patiala) (supra)."
11. In Divisional Controller, MSRTC v. Anil this Court held as under :-
"... This is not the question of the respondent misappropriating only four or five rupees. One has to go by the fact that the conductor has to make about 40 trips in a day. If in one trip, a conductor was found short, or it was found that the conductor had committed the misappropriation of five rupees, it would come to Rs. 200/- a day, and if one conductor is allowed to go scot-free like this, then the day will not be far when the whole organisation of the ST Corporation will have to be closed down. The dishonesty amongst the staff is on increase and it must be curbed with iron hands. The Labour Court had rightly commented upon this. Again, had this been the first occasion of this respondent-conductor, one could have thought about, it but the respondent was engaged in similar kind of misconduct even in the past and refused to be wise from the fact that he was allowed to remain in service. The Labour Court was, therefore, right in holding that the punishment of dismissal was not disproportionate. The order of the Industrial Court as regards the merits and also as regards the punishment is obviously incorrect and erroneous in law and, therefore, had to be set aside".
12. In MSRTC v. Suryakant Mane, 1988 1 Lab Ln 296. The Division Bench of this Court held as under :-
"3. It appears that even in the very first year of his service Mane embarked upon the misadventure of allowing passenger to be carried without tickets. On June 12, 1971, he was found allowing one passenger without ticket as a result of which he was suspended. In spite of this suspension, Mane learnt nothing and forgot nothing. Within one month, that is on July 21, 1971, he allowed 21 passengers to travel without tickets and the punishment imposed on him was stoppage of increment for six months. This continued oven in 1971 when he allowed two passengers without ticket. Apart from allowing passengers without ticket Mane was visited with punishment on no less than 13 occasions for various types of misconduct such as shortage of cash, absence without leave, non-issuance of luggage ticket, excess cash, issuing tickets of lesser denomination, etc; such a shady background cannot be dismissed summarily as has been done by the Labour Court with the remarks that the record is "not so very clean". Under the circumstances, we find that the Labour Court had misdirected itself in holding that the dismissal was harsh and excessive without discussing the previous service record of the workman".
13. Recently, in Writ petition No. 3547 of 1994, Gulab v. MSRTC, decided on January 19, 1995, I have held as under :-
"8. The order passed by the Labour Court holding that the punishment of dismissal was shockingly disproportionate awarded to the employee-petitioner despite its categorical findings that the past record of the employee-petitioner was not clean, unblemished and that he has been punished earlier 12 times for the misconduct relating to short of cash, for absenteeism, for excess of cash and for allowing the without ticket passengers, was absolutely arbitrary and not passed in judicial manner which has been rightly interfered with by the Industrial Court in revision. Justice may be tempered with mercy in suitable cases to some extent to advance the cause of justice, but all the mercy is no justice. In deserving cases, justice may be supplemented by mercy to reform the erring workman by giving him an opportunity to improve himself, but justice cannot be supplanted by mercy and leniency every time despite opportunities having been given to him number of times and such workman has failed to show any improvement and continues to indulge in such misconduct time and again. A workman cannot be permitted to keep on indulging into misconduct despite having been shown mercy, warning and modest punishment previously in the name of repeated mercy and reformation. If misconduct is repeated by a workman, it is obvious that such workman is beyond reforms and more mercy shown to such workman would result in multiplying misconduct. All mercy in the name of justice, in such circumstances, would be injustice and travesty of justice. The workman has to blame himself if despite opportunities he does not improve and continues to do misconduct for which he has been hold guilty and punished earlier and cannot repeatedly get out of just punishment by setting up a plea that he belongs to a weaker section of society and if the order of dismissal is maintained he would lose his earnings. Minimum sense of duty and conduct required of the petitioner in the discharge of his duties as conductor, was not to indulge in the misconduct of permitting the passenger travel without tickers or not to issue tickets to the passengers who had paid him the fare and misappropriate the amount when he was already found guilty of such misconduct 3-4 times earlier and in all 12 times before the present misconduct".
14. I have held in Gulab Mahanande's case (cited supra) that justice may be tempered with mercy in suitable cases to some extent to advance the cause of justice, but all mercy is no justice. In deserving cases, justice may be supplemented by mercy to reform the erring workman by giving human opportunity to improve himself, but justice cannot be supplanted by mercy and leniency every time despite opportunities having been given to the workman number of times and such workman has failed to show any improvement and continues to indulge in such misconduct time and again. A workman cannot be permitted to keep on indulging into misconduct despite having been shown mercy, warning and modest punishment previously in the name of repeated mercy and reformation. If an employee does not improve despite the opportunities given for improvement, merely by according mercy to such workman would only result in multiplying misconduct. But awarding modest punishment, the intention of the employer cannot be gathered to mean that the employee has been given licence to commit misconduct again. All mercy in the name of justice, in such circumstances, would be injustice and travesty of justice.
15. The fact that the employee even within one year's service career started indulging in misconducts and despite the fact he was awarded minor punishment twice for misconducts, he continued misconduct, showed that he had little respect for improvement. The modest punishment was awarded to the employee twice before because the employee was new in the service and he was required to be given an opportunity to reform himself. The employee ought to have bean wise enough to reform and improve his conduct after he was found guilty of misconduct for carrying 3 mounds of luggage and also found short Rs. 41.60. What is important is not the amount involved, but the repeated omission on the part of the employee to improve after he was found guilty of misconduct.
16. In Baldev Singh v. PO Labour Court, Patiala (supra) on which strong reliance was placed by the learned counsel for the employee related to an award passed by the Tribunal holding the punishment of dismissal was too harsh in the facts and circumstances of that case and the High Court did not find any merit in the writ petition filed challenging the award passed by the Tribunal and the Supreme Court observed that there was no case for interference made out. Baldev Singh' case neither related to the case of mis-appropriation nor it was a case of repeated misconduct by the employee and, therefore facts and circumstance of Baldev Singh's case are entirely different than the case in hand. Similarly, in Scooter India Limited's case (supra) the apex Court held that when the order passed by the Labour Court was not arbitrary and the Labour Court has rightly held that the workman could be given opportunity to reform himself, it could not be said that the order passed by the Labour Court holding the punishment of dismissal disproportionate was erroneous. Thus, in Scooter India Limited's case (cited supra) also, the question was of award of punishment for misconduct found for the first time and an opportunity was deemed proper to be given to the employee to improve himself. In the present case, twice before the present incident, employee was found guilty of misconduct and the modest punishment was awarded but still the employee continued to do misconduct and, therefore, the decision in Scooter India Limited's case (supra) is not applicable to the case in hand.
17. The Division Bench of Gujarat High Court in Gujarat State Road Transport Corporation' case (supra), was also concerned with the case of workman who was found guilty of misconduct for the first time and in that background, it was found that the order passed by the Labour Court was not unreasonable or perverse and no interference in the order of Labour Court under Article 227 of the Constitution of India was called for. In Sudhakar' case (supra), it may be observed that the learned Singh Judge of this Court took into consideration that as regards the previous record, though the workman was alleged to have committed misconduct previously, no punishment was inflicted, in the third misconduct, the employee was let off and for the 4th misconduct, the employee was awarded punishment of fine. In this background of the past conduct in the facts and circumstances, the learned Single Judge directed that reinstatement without payment of backwages would be an appropriate order.
18. However, as observed above, the facts and circumstances of the present case are entirely different. In the beginning of his service career, the employee started misconducting himself and in a very short span of one year service, employee was found engaged in misconduct twice before the present incident and twice before, for his misconduct, fine was imposed. Despite modest punishment awarded previously, the employee did not improve though he had hardly completed a year or so in the service and again misconducted in the incident by carrying 22 passengers without ticket.
19. In the aforesaid facts and circumstance of the case, therefore, in my view, the Labour Court committed serious error in holding that the punishment of dismissal was shockingly disproportionate. The finding recorded by the Labour Court is not in accordance with the well settled principles and, therefore, liable to be quashed and set aside.
20. Consequently, this writ petition is allowed. The Award passed by the Labour Court, Chandrapur on June 22, 1993 is quashed and set aside. Parties are directed to bear their own costs. Rule is made absolute in the aforesaid terms. Petition allowed.