Rajasthan High Court - Jodhpur
Nemi Chand Sharma vs Chief Manager Rsrtc Pali & Ors on 2 July, 2013
Bench: Dinesh Maheshwari, Arun Bhansali
D.B. CIVIL SPECIAL APPEAL (W) NO.595/2012
Nemichand Sharma Vs.Chief Manager, RSRTC
1
D.B. CIVIL SPECIAL APPEAL (W) NO.595/2012
Nemichand Sharma
Vs.
Chief Manager, RSRTC, Pali Depot, Pali & Ors.
..
nd
Date of Order :: 2 July 2013
HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MR. JUSTICE ARUN BHANSALI
Dr.A.A.Bhansali, for the appellant
<<>>
BY THE COURT:
By way of this intra-court appeal, the petitioner-appellant seeks to question the order dated 16.02.2012 whereby, the learned Single Judge of this Court has dismissed the writ petition (CWP No.9916/2011) preferred against the award dated 18.03.2011 made by the Labour Court, Jodhpur in the reference proceedings relating to the domestic inquiry. In the impugned award dated 18.03.2011, the Labour Court, Jodhpur found established the charges of misconduct against the petitioner-appellant and hence, held justified the order of his removal with forfeiture of wages for suspension period.
In brief, the relevant background aspects of the matter could be taken into comprehension in the following: The petitioner- appellant was employed as a Conductor with the respondent-Chief Manager, Rajasthan State Road Transport Corporation ('the Corporation'), Pali Depot. On 29.01.2003, while he was assigned the duty on a bus enroute Pali to Jaipur, the vehicle was intercepted and checked by the officers of the Corporation near Loriya. The allegations against the petitioner-appellant had been that at the time of inspection, six passengers travelling from Sojat (Mod Bhatta) to D.B. CIVIL SPECIAL APPEAL (W) NO.595/2012 Nemichand Sharma Vs.Chief Manager, RSRTC 2 Chandawal were found without tickets, though he had already realised the fare. A remark in that regard was entered in the way bill and a Bus Checking Report (BCR) was also prepared, which was signed by the appellant and the driver of the vehicle.
Based on the aforesaid allegations, the disciplinary proceedings were taken up against the appellant; he was placed under suspension; and a charge-sheet dated 13.02.2003 was served. As pointed out by the Inquiry Officer in his report (Annex.4), the stand of the appellant in the reply had been that six passengers boarded the bus at Mod Bhatta and gave one Rs.500/- currency note towards fare; that soon after his returning Rs.440/- to them, the vehicle was intercepted; and that the inspecting party, though apprised of the fact that tickets were to be issued to these six passengers, did not pay any heed to his submissions. The appellant submitted that there was no mala fide intention on his part and prayed for exoneration. The Inquiry Officer, however, pointed out that the appellant did not appear before him despite notice and, with reference to the statements of the complainant i.e., the Assistant Traffic Inspector, returned the finding that the charge against the delinquent i.e., the appellant stood proved.
After receipt of the inquiry report aforesaid, the Disciplinary Authority issued notices to the appellant for personal hearing, which were sent by registered post and were also published in the daily newspaper but he did not appear before the Disciplinary Authority either. The Disciplinary Authority, in his order dated 30.04.2003 (Annex.5), observed that the delinquent was avoiding appearance; and while agreeing with the report of the Inquiry D.B. CIVIL SPECIAL APPEAL (W) NO.595/2012 Nemichand Sharma Vs.Chief Manager, RSRTC 3 Officer, held the charges against him proved. The Disciplinary Authority referred to as many as 16 different cases and instances where the appellant had been proceeded departmentally in the past, mostly on the charges relating to without-ticket passengers; and several penalties were imposed upon him, inclusive of at least four major penalties of stoppage of increments with cumulative effect, apart from other minor penalties of fine as also stoppage of increment without cumulative effect. The Disciplinary Authority observed that as regards the misconduct found on 25.02.1984 and 09.08.1984, the appellant took the advantage of the scheme of the Corporation whereby, on 24.01.2003, he was let off only with imposition of fine upon his assurance of not repeating the mistakes in future but, even thereafter, the appellant was found indulging in misconduct on 29.01.2003 and hence, was unfit to be retained in service.
Aggrieved by the order so passed against him, the petitioner- appellant raised an industrial dispute that came to be referred by the Government for adjudication to the Labour Court.
The petitioner-appellant submitted his statement of claim before the Labour Court and therein, apart from questioning the validity of inquiry proceedings, took the stand that while he was in the process of returning the remainder money and issuing tickets that the Inspecting Officers prevented him. The employer filed a reply contending against the stand of the appellant and asserted that the inquiry had been conducted in a fair manner and the delinquent- appellant, who had in the past suffered as many as 17 penalties, was not fit to be retained in service.
D.B. CIVIL SPECIAL APPEAL (W) NO.595/2012 Nemichand Sharma Vs.Chief Manager, RSRTC 4 The Labour Court found the inquiry invalid for want of adherence to the principles of natural justice but then, permitted the employer to prove the charges before it. The employer examined the Assistant Traffic Inspector, Mr.M.A.Khan, who had carried out the inspection in question, as NAW-1. He exhibited the checking report as Ex.A/1 and asserted that six passengers, who were to go to Chandawal, had not been issued tickets by the conductor i.e., the appellant. The appellant examined himself as AW-1 and two persons, Mr.Ram Avtar and Mr.Mahendra Kumar, who were allegedly amongst the said six passengers, as AW-2 and AW-3 respectively. The appellant also examined Mr.Bhanwarlal Devasi the driver of the bus concerned, as AW-4.
After analysing the material on record, the Labour Court found that nothing came out in the cross-examination of NAW-1 Mr.M.A.Khan to show if the proceedings of inspection were carried out with any ill-intent. The Labour Court also found that the inspection report (Ex.A/1) was prepared at the site; which was signed by the appellant as also by the driver AW-4 Bhanwarlal Devasi; and nothing of any opposition from anybody came to the fore. The Labour Court also doubted the veracity of the suggestions made by AW-2 Ram Avtar and AW-3 Mahendra Kumar, particularly when the names of these persons were not even suggested by the appellant earlier. The Labour Court observed that production of tickets by AW-2 Ram Avtar was of no effect because tickets were indeed issued by the Inspecting Party at the site. In the ultimate analysis, the Labour Court found the charge against the appellant established that he did not issue the tickets despite having realised D.B. CIVIL SPECIAL APPEAL (W) NO.595/2012 Nemichand Sharma Vs.Chief Manager, RSRTC 5 Rs.60/- from six passengers; and that being a matter of embezzlement, found justified the order of his removal.
In challenge to the award so made, it was contended before the learned Single Judge that the Labour Court proceeded with an erroneous approach as if it was for the petitioner-appellant to establish that he was not guilty; that the Corporation had failed to prove the charge by producing cogent evidence; and that mere deposition of the Inspector and mere production of the checking report (Ex.A/1) could not have been considered as conclusive evidence. It was also submitted that the testimony of AW-2 Ram Avtar and AW-3 Mahendra Kumar, the concerned passengers, had altogether been ignored and thus, the finding of guilt as recorded by the Labour Court was perverse. It was further contended before the learned Single Judge that tickets had been issued to the passengers travelling in the bus much before the bus was inspected and, therefore, the remark as made in the way bill and the BCR could not have been relied upon. It was yet further submitted that the punishment was shockingly disproportionate to the delinquency alleged; and while imposing punishment, past record was considered by the Disciplinary Authority without notice to the petitioner-appellant.
The learned Single Judge found the submissions not making out a case for interference. The learned Judge found that the petitioner-appellant raised the contention about genuineness of the remark entered in BCR and levelled the allegation of malice against the members of checking party and, therefore, the Labour Court considered the evidence in that regard and recorded a categorical finding that such an allegation of malice was not proved. The D.B. CIVIL SPECIAL APPEAL (W) NO.595/2012 Nemichand Sharma Vs.Chief Manager, RSRTC 6 learned Single Judge was satisfied that the finding of guilt recorded by the Labour Court was based on objective consideration of the evidence on record that called for no interference by the Court in its supervisory jurisdiction under Article 227 of the Constitution of India, particularly for the settled proposition that in a case of embezzlement, the employee forfeits his right to continue in the employment. The learned Single Judge further observed that the Labour Court had found the order of removal justified solely on the basis of proved misconduct and, therefore, nothing much turned upon the question that the Disciplinary Authority had considered the past record too. Thus, the learned Single Judge proceeded to dismiss the writ petition in limine.
Seeking to question the order so passed by the learned Single Judge, the learned counsel for the appellant has strenuously argued that once the inquiry conducted against the appellant was found unfair and the employer was directed to prove the charge, the burden was on the employer to produce relevant material to establish the guilt of the appellant. According to the learned counsel, no such relevant material was produced but the Labour Court proceeded rather in a converse manner as if it was for the appellant to disprove the charges and to prove that he was innocent. It is submitted that the departmental witness NAW-1 Mr.M.A.Khan has simply produced the report (Ex.A/1) that cannot be taken as sufficient an evidence to establish the guilt of the appellant; and though the said witness alleged that the appellant and the driver of the bus put their signatures on Ex.A/1 as a token of consent towards the proceedings but, in the cross-examination, D.B. CIVIL SPECIAL APPEAL (W) NO.595/2012 Nemichand Sharma Vs.Chief Manager, RSRTC 7 clearly admitted that the word 'consent' was not there. It is also submitted that from the statements of the witnesses AW-2 Ram Avtar and AW-3 Mahendra Kumar, it is clearly established that the tickets had been issued to the passengers before the bus was inspected but this aspect has been totally ignored by the Labour Court and by the learned Single Judge. It is further submitted that for the passengers having not been charged with any penalty, the suggestion about want of tickets with them remains baseless.
Having given thoughtful consideration to the submissions made and having examined the material placed on record, we are satisfied that this appeal remains bereft of substance and does not merit admission.
The substance and crux of the matter had been that according to the employer, the appellant was found indulging in the unfair act of realising fare but not issuing tickets to the passengers. Noticeable it is that in regard to the core factual aspect related with the charge, the appellant took different stands at different stages. In his initial reply before the Inquiry Officer, the appellant suggested that he had realised the fare from six passengers but tickets were to be issued to them when the vehicle was checked; and such facts were divulged to the Inspecting Party. The Inquiry Officer recorded this aspect of the submissions of the appellant in the following:-
"प र द न क 29.1.03 क व हन स. 1320 प ल जयपर म र पर पररच लक डयट अज म रह र स जत स ब हर ननकलत ह म डभट स छ: य त( व हन म) ब*ठ उनक द र 500/- र. क न ट न पर मर द र उनह) 440/- रपय ल0ट त ह ननर कण कत ओ न व हन र कन क सकत न पर मर द र उनह) वसत ससरनत बत रई कक म डभट स चन वल क छ: य त( ब*ठ ह8 सजनस म8न अभ( ककर य ललय सजनक दटकट ज र करन शष ह* । इस पर उनक द र क ई धय न नह कर बबन दटकट क ररम क अककत कर द य इस पक र उक पकरण मर क ई ब ननयत नह र( कAपय लर य रय आर प स मक करव न कC कAप कर व) । वक ज च य बतयD क पसतत कर र । मर र जसव भ( च*क नह ककय रय य बतयD क बय न भ( नह ललय और य बतयD न D.B. CIVIL SPECIAL APPEAL (W) NO.595/2012 Nemichand Sharma Vs.Chief Manager, RSRTC 8 कह उस भ( नह म न ल डडय ननर कण करन श य ज रलत ह* ।"
(underlining supplied) It appears that the appellant, after filing reply, did not appear before the Inquiry Officer. The appellant did not appear before the Disciplinary Authority either. However, in the statement of claim before the Labour Court, the appellant stated that he was in the process of issuing tickets when the Inspecting Party stopped him from doing so. The appellant asserted as under:-
"(8) प र शलमक क यह भ( करन र एव व सतववक ससरनत यह र( कC उक द न क क व हन म) म0ज 23 य बत र सजनम) 6 य बतयD क ककर य कC र लश 60/- रपय लकर उनह) दटकट रह र 6 य बतयD न उस 500/- रपय क न ट द य ब ल म) 440/- रपय य बतयD क प र ल0ट रह र उस( समय य बतयD क प र ल0ट रह र उस( समय ननर कण करत न व हन रकव ललय व हन स जत स ब हर ननकल ह र जबकक ननर कण कत न उसक ननर कण सर न ह रलत बत य ह* ज ज न बझकर रलत बत य ह* ननर कण करत न ततक ल न सबधMत य बतयD स उनक बय न नह ललय, ज च क यव ह म) भ( उन सबधMत य बतयD क बय न नह ह* सजसस ज च क यव ह एव ज च पत वल पर यह तथय ह पकट नह हआ ह* कC प र शलमक न प*स लकर दटककट नह न च ह वह दटककट क ट रह र । जबकक व सतववक ससरनत यह ह* कक प र दटककट क ट रह र दटककट क टत हए ननर कण कत न उस र क ह* और उसकC दटककट बक प र स ल ल इन पररससरनतयD म) ननर कण कत न कवल अपन( अहमत लसद करन क उदशय स व सतववक ससरनत क ववपर त प र क ववरद आर प लर य और व सतववक घटन क तथय उसम) पकट नह ककय ।"
(underlining supplied) A step ahead of the above version, the appellant asserted in his statement before the Court that he had already issued the tickets to the passengers in the following:-
"......र ड( म ड भट स कर ब ककल म(टर र पर चक कC र( । सव ररयD क म8न दटकट द य र लककन सव ररयD न मझ 500/- क न ट द य र उस न ट क चक करक 440/- रपय सव ररयD क व वपस द य र । म8न दटकट सव ररयD क द य र लककन अधMक ररयD न नह म न र । मर व उन अधMक ररयD क ब(च क ई रसजश य झरड नह ह* । म8न अधMक ररयD क ररम क लर त वक कह र कक म8न दटकट सव ररयD क द य ह* । यह सह ह* कक म ड भट पर सव ररयT ब*ठत ह बस रव न ह न स पदहल दटकट नह द य र ।..."
(underlining supplied) The interesting factor noticeable is that according to appellant's witness Ram Avtar, the checking party came in the bus D.B. CIVIL SPECIAL APPEAL (W) NO.595/2012 Nemichand Sharma Vs.Chief Manager, RSRTC 9 at the time when conductor was giving the ticket to them. He stated in the affidavit that:
"2)- र डवज बस सखय 1320 प ल जयपर र(, उसम) उस समय कनडकटर श( नम(च शम तर ड ईवर भवर व स( र । बस म) ब*ठत ह म8न 500/- र. क न ट ककर य क ललय द य , सजस पर कनड*कटर न खल 60/- रपय म र, मर मन करन पर उसन उक प च स0 रपय क न ट क च र-प च ब र ख तर ब कC क 440/- र. मझ द य तर सभ( (छ:) दटककट मझ रह र , उस( समय च*कCर व ल भ( बस म) आय, हम र बस म) ब*ठन क 3-4 लमननट ब म) ह च*ककर व ल आय और उनहDन बस च*क कC, हम र दटककट भ( च*क ककय ।"
(underlining supplied) However, this witness, in his cross-examination made rather incongruous statement in the following:-
".....दटकट कनडकटर न मझ र ड( म) र( तब स म8न दटकट समभ ल कर रख र । पतयक दटकट क 10 रपय द य र । य दटकट ननर कण ल न बन य ह त मझ धय न नह । हम त दटकट कनडकटर न द य ।....."
(underlining supplied) Thus, the petitioner-appellant started his defence with the suggestion that he had informed the checking party that tickets were to be issued; then took the stand in his statement of claim that he was in the process of preparing the tickets; and then, improved upon it further in the examination before the Court to suggest that tickets had already been issued by him at the time of checking. Contrary to this vacillating and every- stage-improving stand of the appellant, the case of the respondents had been consistent that at the time of checking, six passengers were found without tickets; due entries were made in the way bill and BCR; and tickets were issued to such passengers by the checking party. The respondents' witness Mr.M.A.Khan has also explained the position that the conductor having charged the fare, penalty was not recovered from such six passengers. The report (Ex.A/1) has not been produced on the record of the writ petition but in any case, this much is clear that the D.B. CIVIL SPECIAL APPEAL (W) NO.595/2012 Nemichand Sharma Vs.Chief Manager, RSRTC 10 said report was an indisputable document, bearing signature of the appellant.
In an overall comprehension of the evidence available on record, the Labour Court cannot be said to have erred in recording the finding against the appellant. The learned Single Judge has also approved the award after due appreciation of the material on record. Having examined the material over again, we find nothing of error or infirmity in the award made by the Labour Court and in the order passed by the learned Single Judge so as to consider interference.
In the passing, we may observe that though the aspect of past conduct may not require much dilatation as the proved charge in present case is sufficient to justify the order of removal but a question was indeed put to the petitioner in his cross-examination before the Labour Court as to how many cases had he suffered in the past. This question was simply avoided by him, for being unable to recollect. This fact has been precisely mentioned in the Disciplinary Authority's order as also in the reply to the claim application that at least 16 penalisation orders were passed against the petitioner-appellant in the past; mostly for the gross misconduct of taking passengers in the vehicles without tickets.
In an overall analysis, we are satisfied that the learned Single Judge has rightly declined to interfere in the award made by the Labour Court and no case for interference in intra-court appeal is made out.
The appeal fails and is, therefore, dismissed.
(ARUN BHANSALI), J. (DINESH MAHESHWARI), J. MK