Allahabad High Court
U.P.S.R.T.C. vs Mahendra Nath Tiwari And Ors. on 20 October, 2003
Equivalent citations: 2004(1)AWC662
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the respective parties.
2. This writ petition has been preferred against an award dated 2.6.2000 passed by the Labour Court, Gorakhpur in Adjudication Case No. 259/91 directing reinstatement of the workman with full back wages but to stop his annual increments for a period of three years provided there is no complaint/charge against him during the aforesaid period of three years.
3. The counsel for the petitioner submits that respondent No. 1 has been reinstated in service and is being paid current salary in pursuance of the aforesaid order dated 26.2.2001. In pursuance of the aforesaid order respondent No. 1 had joined his duties and there has been no complaint/charge against him during the last three years since the date of enforcement of the award of the Labour Court. Since part of the award has been complied with the only question that remains to be decided by this Court is regarding the back wages of the workman.
4. The admitted facts of the case are that respondent No. 1 was appointed as a Conductor in the petitioner-Corporation. On 21.1.1990 he was entrusted Bus No. URO-7908 of the Corporation to conduct. When the bus was being taken for the alleged purpose of rotation in the night, he was intercepted by the checking squad which found that respondent No. 1 was driving the bus instead of conducting. There was one passenger sitting in the bus without ticket. It is alleged that the fare of Rs. 1.50 was recovered from the passenger. Departmental proceeding was held against respondent No. 1 and ultimately he was dismissed from service on 30.8.1990. Aggrieved by his dismissal from service, respondent No. 1 raised an industrial dispute, which was referred to the Labour Court, Gorakhpur. On the basis of the pleadings, the Labour Court framed an additional issue on 8.11.1994 to the effect "whether the domestic inquiry conducted by the employer was legal and justified?" The Labour Court answered the reference in favour of the workman vide its award dated 2.6.2000, impugned to this writ petition, which was enforced by publication on 5.12.2000 under Section 6A of the U. P. Industrial Disputes Act. Against the impugned award this writ petition has been filed. The impugned award has been challenged, inter alia, on the ground that the Labour Court has committed an error in reducing the quantum of punishment and in substituting itself as the punishing authority and that the Labour Court give reasons for interfering in the quantum of punishment awarded to respondent No. 1 who was dismissed from service not only for the alleged embezzlement of Rs. 1.50 only but for another charge also found proved against him that he was driving the bus instead of conducting it.
5. The counsel for the respondent-workman submits that the punishment of dismissal from service awarded to respondent No. 1 in the peculiar facts and circumstances of the case is too harsh and disproportionate to the charges levelled against him. He further submits that the conductor has been penalised though he had not committed any misconduct whereas the guilty person, i.e., the driver was left scot-free by the authorities. He further submits that both the charges have been categorically dealt with and the finding of fact recorded by the Labour Court are absolutely justified and legal and are not liable to be interfered with by this Court under Article 226 of the Constitution.
6. The Labour Court by its order dated 20.11.1999, held that the domestic enquiry conducted by the petitioner was not legal, fair, proper and justified.
7. From a perusal of the impugned award it appears that the enquiry evidence of the driver was not recorded. The Enquiry Officer was also not produced before the Labour Court. It is further apparent from the enquiry proceedings that neither the driver was given any charge-sheet nor any report was filed against him as to why he had allowed the conductor to drive the bus. The Labour Court has given a categorical finding in para 13 of the impugned award that it is not brought out anywhere by evidence on record in which circumstances the conductor was asked by the driver to drive the bus. The driver was not even proceeded with any enquiry and was not given any punishment.
8. It is clear from the facts that the whole bus was vacant except one passenger and the bus was being taken for the purpose of rotation in the night. Neither in the enquiry proceedings nor in the report it has come as to why the petitioner, who was a conductor, was given the bus by the driver to drive it, i.e., what were the reasons/circumstances. The peculiar fact of this case is that the conductor was driving the bus and the bus driver was conducting the bus. Was the driver of the bus ill? Or was he not in a condition to drive the bus? Or there was any other reason. Since in the peculiar circumstances of this case the driver was conducting the bus it was the duty of the driver to have given ticket to the lone passenger in the bus as the conductor was driving the bus. It appears that there was some emergency in which the driver had handed over the bus to the conductor, as he was not in a position to drive it and even Issue ticket to the only passenger. Looked from any angle it was the driver of the bus who had committed the misconduct in the bus as he had handed over the bus worth Lacs of rupees to the conductor for being driven. In the peculiar facts and circumstances of the case where the conductor was driving the bus, the Labour Court has rightly come to the conclusion that misconduct, if any, was committed by the driver of the bus who had been left scot-free. The respondent-workman had been out of service for more than 11 years for the alleged embezzlement of a paltry sum of Rs. 1.50 only for which the bus driver was responsible and no reason has been shown as to why no charge-sheet was given to the driver as to why enquiry was not held against him.
9. The Labour Court has also given a categorical finding of fact that the used tickets found with the conductor were not utilised by him, therefore, he could not be punished. It is not clear that if the conductor was driving the bus how he could have used the tickets, which according to the checking squad had already been used. Thus, looking by any angle no case is made out against respondent No. 1. The counsel for the petitioner has only stated that respondent No. 1 workman was involved in embezzlement of the Corporation money of Rs. 1.50 by not issuing ticket to the alleged lone passenger. He has relied upon the decision rendered by the Apex Court in the Regional Manager, U.P.S.R.T.C., Etawah and Ors. v. Hoti Lal and Anr. 2003 (2) AWC 1070 (SC) ; (2003) 3 SCC 605, in which it has been held that the judicial review is very limited and restricted to exceptional cases and that the Court must give reasons for holding the punishment to be not commensurate with the charges and a mere statement that the punishment was disproportionate would not suffice. Proportionality of the punishment depending on many circumstances if the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning the matter should be dealt with iron hands.
10. The facts of the above cited case are not applicable to the present case for the reasons that the Labour Court has found as a matter of fact that the driver in this case was not examined in the enquiry or before the Labour Court at all in order to establish the circumstances in which he had asked the conductor to drive the bus. In the instant case conductor was driving the bus and the driver was conducting the bus and ticket worth Rs. 1.50 only was not issued to the lone passenger.
11. The counsel for the petitioner then relied upon the decision given by the Supreme Court in Madhya Pradesh State Electricity Board v. Jarina Bee, 2003 (3) SCCD 1094 ; (2003) 6 SCC 141, wherein it has been held that the payment of full back wages is not the natural consequence of an order of dismissal being set aside. In the aforementioned case the Apex Court awarded Rs. 85,000 towards full back wages to meet the ends of justice.
12. In the instant case no charge against the respondent-workman could be proved by the employer and he was dismissed from service for committing the alleged misconduct of not issuing ticket of Rs. 1.50 only. The employer had failed to establish a case against the respondent.
13. In the facts and circumstances of the present case and for the reasons that there is no illegality in the award the workman is entitled to reinstatement with full back wages. The respondent was given a wholly disproportionate and harsh punishment for misconduct not committed by him and without any fault of his. The respondent had already been out of service for more than 11 years and has suffered. In such circumstances payment of full back wages to him is justified.
14. For the reasons stated above, this writ petition is dismissed. The award of the Labour Court is upheld. No order as to costs.