Uttarakhand High Court
U.P. State Road Transport Corporation vs Presiding Officer on 5 April, 2021
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
Reserved on 25.02.2021
Delivered on 05.04.2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 661 of 2007
U.P. State Road Transport Corporation .......Petitioner
Vs.
Presiding Officer, Labour Court, Dehradun & another
.....Respondents
Mr. Rajeev Singh Bisht, Advocate for the petitioner.
Mr. M.C. Pant, Advocate, for respondent no.2.
Hon'ble Sharad Kumar Sharma, J (Oral)
The petitioner of the present writ petition is a "U.P. State Road Transport Corporation", as it then existed, which is a creation of the statute and it is a statutory body, and hence undisputed, it would be falling within a definition of an "Industry", as it has been defined under the "U.P. Industrial Disputes Act, 1947 (from hereinafter referred to as the "UPID Act"). Another fact, which particularly requires a reference at this stage itself, is that the respondent no.2/workman, herein, was working at the relevant point of time as "Conductor", who was an employee of the petitioner's Organization and there exists, a master and servant relationship, which was a genuine relationship between them, which persisted to subsist till the taking of the impugned action.
2. The petitioner to the present writ petition, had preferred this writ petition challenging the impugned award, which was rendered by the learned Labour Court, Dehradun, in the Adjudication Case No.134/2000, by an award dated 12.02.2001. As a consequence thereto, the learned Labour Court while setting aside the order of the termination of services of the respondent no.2/workman, which was made vide order dated 26.11.1999, holding it to be an illegal and void, had directed to modify the punishment order by converting it to the stoppage of annual increment; in place of the order of dispensation of 2 the services; with future effect. As a consequence thereto, the respondent no.2/workman was reinstated into the service, of the petitioner, under the modified order of punishment, under the award dated 12.02.2001.
3. The writ petition which was instituted by the petitioner/employer on 13.12.2001, and had filed the instant writ petition challenging the aforesaid award rendered in the Adjudication Case No.134 of 2000, on various accounts.
4. The history of the controversy, which engages consideration in the present writ petition, is that the respondent no.2/workman, who was working with the petitioner's organization as a Conductor. At the time, when respondent no.2 was dispensing his services i.e. on 11.07.1995, the bus which was being plied, on Dehradun - Kulhan Road, bearing Registration No.UML/9133, the respondent no.2 was the Conductor of the said bus. The said bus was inspected by the team headed by the Assistant Regional Manager, on the said date and on the surprise inspection, the Checking Authority, found that out of the total numbers of passengers, who were travelling in the said bus, there were about 25 passengers, who were found to be travelling without tickets.
5. At the stage of inspection itself, the Checking Authority, had issued the tickets to the passengers, who were being carried without tickets and were found to be the ticketless passengers and a mark to the said effect was also mentioned in the tickets, which were issued to the aforesaid passengers, as well as a reference of it in the route chart also was made showing that the check tickets were issued, under the checking remarks of the Inspection Team, which has conducted by the Checking Authority on the Bus on 11.07.1995. Apart from it, the fact which has been pleaded, was that when the Inspection Team, which was headed by the Assistant Regional Manager had issued the tickets to the passengers, the way bill was also simultaneously got endorsed by the respondent no.2, 3 precautionarily to fortify the fact that the 25 passengers, were found to be travelling without tickets in the bus. Ultimately, the Checking Authority headed by the Assistant Regional Manager, had submitted, its report to the Competent Authority on 11.07.1995 itself.
6. On 18.07.1995, in order to fortify the contents of the said report itself, which was submitted by the Inspection Team on 11.07.1995, the Assistant Regional Manager, had issued the notice to the respondent no.2/workman, calling upon him to give his explanation, with regards to the set of allegations and the findings which were recorded in the report against him, which has been recorded in the report of the Checking Authority dated 11.07.1995. It is not in controversy that the said notice, was served on respondent no.2 and in response to it, the respondent no.2 has also furnished his reply before the Assistant Regional Manager.
7. The Disciplinary Authority, as per the service Rules called as "U.P. State Road Transport Corporation Employees (Other Than officers) Service Rule, 1981 (from hereinafter referred to as the "Service Rules, 1981"), the Disciplinary Authority, in the case of the Conductor, has been held out to be the Regional Manager. Hence, the Regional Manager, on 06.09.1995 is shown to have issued a letter to the respondent no.2, along with the copy of the report of the Checking Authority dated 11.07.1995, yet again calling for an explanation from respondent/workman, qua the contents of the report dated 11.07.1995. Once again, it is a fact which is borne out from records and not disputed that the respondent no.2, did submit a reply to the said notice of the Regional Manager and ultimately the Disciplinary Authority, by an order of 20.09.1995, had issued a charge-sheet, referring to the notice, which was issued on 06.09.1995, as well as the report of 11.07.1995, to the workman.
8. On issuance of the charge-sheet to the respondent no.2/ workman on 20.09.1995, the Regional Manager, had appointed an Inquiry Officer on 14.03.1996, to conduct the disciplinary 4 proceedings against the workman in accordance with the Service Rules of 1981, as it was then applicable over the service conditions of the respondent no.2 and further as per the documents and the findings which had been recorded by the Labour Court, the following facts are not disputed:-
(a) The report of 11.07.1995 and the charge-sheet dated 20.09.1995, along with the reply which was solicited by the Disciplinary Authority, was in receipt of respondent no.2.
(b) It was further not disputed that the respondent no.2, on the relevant date i.e. on 11.07.1995, was deployed as a Conductor, and was working in the said capacity when the aforesaid bus was being plied on the route, as already referred above.
(c) It is further not disputed by the respondent no.2, that he didn't submitted the reply to the notice which was initially issued by the Assistant Regional Manager on 11.07.1995, and later on by the Regional Manager, in response to the show-cause notice for the purposes of fortification of the inspection report of the Inspection Authority dated 11.07.1995.
(d) The undisputed fact which are apparent from record is that the respondent no.2, workman did effectively participate in the departmental proceedings, which was conducted against him. He was given an ample of opportunity to lead his evidence. He was given an opportunity to cross-examine the witnesses of the prosecution also.
(e) It was not further disputed that the respondent no.2, did cross- examine the witnesses of the prosecution, who supported the set of allegations which were leveled in the charge-sheet dated 20.09.1995, issued to the respondent no.2, with regards to the incident of 11.07.1995.
9. Ultimately, on culmination of the inquiry proceedings, in his report (Annexure No.6), the Inquiry Officer has held, that on appreciation of evidence both oral and documentary, that the respondent no.2, has misconducted himself in discharge of his duties and the set of allegations as leveled against the respondent no.2, 5 would fall to be a misconduct, as defined and contemplated under the Rules of 1981, which is of a grievous in nature, and particularly, the set of allegations, as already referred above and which was recorded and proved in the findings of the inquiry report submitted by the Inquiry Officer, the conduct of respondent no.2, would fall to be within the parameters of conduct/misconduct, as it has been provided under Rule 61 of the Service Rules, 1981.
10. Consequently, on the submission of the inquiry report by the Inquiry Officer before the Disciplinary Authority, the Disciplinary Authority after being satisfied with the findings recorded in the inquiry report, with regards to the set of allegations which were leveled against the respondent no.2, and agreeing with the contents of the Inquiry Report, the Disciplinary Authority, as per the provisions of Part 10 of the Service Rules, 1981 had issued the show-cause notice on 05.05.1997, calling upon respondent no.2, to submit his reply with regards to the findings of the report submitted by the Inquiry Officer, which establishes the alleged misconduct of the respondent no.2, which as per the show cause dated 05.05.1997, was a grievous misconduct falling under Rule 61 of Rules of 1981. The show cause thus issued on 05.05.1997, accompanied with it the copy of the report of the Inquiry Officer.
11. The respondent no.2, on the receipt of the show-cause notice which was issued by the Disciplinary Authority/Punishing authority on 05.05.1997, along with the inquiry report and other materials which were relied by the Inquiry Officer, has responded to the show-cause notice on 19.05.1997. In the reply to the show-cause notice of the Disciplinary Authority/Punishing Authority dated 05.05.1997, did commensurate to satisfy fully the pre-conditions of imposition of the proposed penalty on the workman/respondent no.2.
12. The respondent no.2, on 19.05.1997, did submit the detail reply to the show-cause dated 05.05.1997, to the authority concerned. Consequently, the Punishing Authority/Disciplinary 6 Authority/Regional Manager, after finding the set of allegations leveled against the workman/respondent no.2, to be established and proved by evidence to be a serious misconduct, had passed an order on 26.11.1999, whereby, the services of the respondent no.2, as a workman/conductor was dispensed with. The order no.1214 dated 26.11.1999 was duly served on the workman.
13. Being admittedly a workman with the employer/petitioner, the respondent no.2 had invoked the provisions contained under Section 4-K of the UPID Act, seeking a reference of an industrial dispute for an adjudication by the Competent Authority. The State Government being satisfied with the reference as it was made by the Government Order No.5409-13/D.Dun - C.P. 11/2000 dated 02.08.2000; had referred a dispute to the Labour Court for adjudication, before the court against the order of dismissal dated 26.11.1999. Accordingly, on the reference being made by the State Government, the aforesaid Adjudication Case was referred to be decided and was registered as Adjudication Case No.134/2000 and the following question of reference was formulated:-
**D;k lsok;kstd }kjk vius deZpkjh Jh mn;pUn jeksyk iq= Jh ekroj flag ifjpkyd dh lsok;sa fnukad 26&11&99 dks lekIr fd;k tkuk vuqfpr@ voS/kkfud gS ;fn gkW rks oknh Jfed D;k fgrykHk@vuqrks'k ikus dk vf/kdkjh gS ,oa vU; fdl fooj.k ds lkFkA**
14. On issuance of the notice on the proceedings, as a consequence, of registration of the Adjudication Case No.134/2000 on 02.08.2000, the petitioner/employer filed its written statement on 14.12.2020 and it has supported the set of charges which were referred in the charge-sheet and the reports, which were the basis of it and the findings which were recorded by the Inquiry Officer. A counter reply to the written statement of the workman was also submitted by the petitioner employer, through its Regional Manager on 03.02.2001.
15. The respondent no.2, too had filed his written statement though he had made an attempt to deny the set of allegations which were leveled and proved and had also, filed his replication to the 7 written statement of the employer/petitioner. Ultimately, under the aforesaid backdrop, the learned Labour Court had passed an impugned award only on the ground of "disproportionately of punishment holding it to be not commensurating to the set of allegations or misconduct leveled against the respondent no.2".
16. Having heard the learned Counsels for the parties, and particularly, the learned Counsel for the petitioner, he had draw the attention of this Court to the findings, which has been recorded by the learned Labour Court from two major prospectives:- (i) That the workman/respondent no.2, before the Labour Court had confined his argument only with regards to the disproportionately of the punishment which was imposed. (ii) The respondent no.2/workman has addressed the issue on the competence of the Labour Court, to interfere into an aspect of determining the disproportionately of the punishment on the basis of the provisions contained under Section 11-
A of the UPID Act, wherein, a certain latitude of interference under the circumstances of each case under which the domestic inquiry was conducted had been left open to be ventured into by the Labour Court. Reference could be made to Section 11-A of U.P.I.D. Act, which is quoted hereunder:-
"11-A. Delegation of powers.- The State Government may, by notification in the Official Gazette, direct that any power exerciseable by it under this Act or rules made thereunder shall, in relation to such matters and subject to such conditions if any, as may be specified, in the direction, be exerciseable also by such officer or authority subordinate to the State Government as may be specified in the notification."
17. It may not be out of context to refer that even the Labour Court under the facts of the case, was conscious of the fact of its limitation, while exercising its powers under Section 11-A of the UPID Act, pertaining to the disproportionately of the punishment, and has precautionarily observed that the ambit of interference under Section 11-A of the UPID Act, could be only exercised when the punishment imposed upon the workmen shaken the very consciousness of the labour court itself, which can be otherwise held 8 that the punishment imposed was disproportionate. The Labour Court, has also ventured into the findings which had been recorded by the Inspecting Authority, Inquiry Officer and the reasons which were given in the order of termination by reappreciating the circumstances, under which the respondent no.2, was found to be carrying 25 passengers without tickets on 11.07.1995, in the bus and rather the Labour Court, Dehradun has observed that though the said misconduct did chanced, but since the inspection which itself was conducted at 08:00 PM and as there were about 100 passengers, who were at that time travelling in the bus, the Labour Court, has held that in all probability the circumstances may not be so conducive for respondent no.2, to issue the tickets to all the passengers and hence had taken considerate view, holding thereof that while exercising powers under Section 11-A of the UPID Act, the punishment imposed deserves to be modified and accordingly, the Labour Court has modified the order of dismissal dated 26.11.1999, to the following extent:-
**vr% eSa vfHkfu.kZ; nsrk gwW fd lsok;kstdksa }kjk vius deZpkjh mn;pUn jeksyk iq= Jk ekroj flag] ifjpkyd dh lsok;sa fnukad 26&11&99 ls lekIr fd;k tkuk vuqfpr o voS/kkfud gS vkSj blds LFkku ij mldh okf'kZd osru o`f) jksdus dk n.M fn;k tkrk gS ftldk Hkfo';xkeh izHkko ugha gksxkA oknh Jfed dh lsok esa iquZLFkkfir fd;k tk; rFkk fiNyh vof/k dk iw.kZ osru o :0 1000@ okn O;; fn;k tk;A**
18. Learned counsel for the petitioner had submitted that the parameters for determining the seriousness of the misconduct which were leveled against an employee, would always be dependent upon the perspective and the circumstances of each case under which the misconduct was found to have been committed by the workman/respondent no.2, there cannot be a common yardstick for its assessment. He has further argued that the interpretation of the misconduct, particularly, in relation to the statutory Transport Corporation, once it relates to a serious misconduct, where there is a breach of trust, between the master by its employee and there is an apparent dereliction of non issuance of the ticket resulting to having an impact of financial misappropriation, he has submitted that non issuance of the tickets to the travelling passengers or carrying the passengers without tickets, itself would be a grievous misconduct and it would entail the dispensation of service of an employee and no 9 lenient view, could be adopted when there is a loss of trust of the employer on his employee, due to the engagement of an employee into a conduct of financial irregularity. He has further submitted that the award of the Labour Court, would be bad in the eyes of law; for the reason being that the very modification of the order of punishment, by exercising its powers under Section 11-A of the UPID Act, could not be reasonably unfurled, and to reappreciate the set of allegations leveled, and all the set of allegations when it stands to be established to have been committed and only the aspect which was argued by the workman before Labour Court was with regards to the disproportionately of the punishment and in support of his contention, learned counsel for the petitioner has made a reference to the judgment which was rendered in the case of Uttar Pradesh State Road Transport Corporation Vs. Pradeep Kumar, reported in 2016 (15) (SCC) 122, particularly, he has drawn the attention of this Court to paragraphs nos.4, 5 and 6 of the said judgment, which is extracted and referred to hereunder:-
"4. We have heard learned Counsel for the Appellant. She submitted that the labour court was not justified in interfering with the punishment awarded as the misconduct alleged was of serious nature. What was alleged against the workman is that he had collected fare from 78 passengers and did not issue the tickets to them, which amounted to criminal breach of trust. Once such a misconduct was proved, reinstating the workman could not be justified. It was submitted that though the labour court may, in an appropriate case, interfere with the punishment awarded, but only when such punishment is not otherwise justified. Reliance is placed upon the judgment of this Court in the case of U.P. State Road Transport Corporation, Dehradun v. Suresh Pal. Relevant observations are:
7. Short question for our consideration in the present case is whether the punishment which has been modified by the learned Single Judge is justified or not? The learned Single Judge found that the punishment awarded in the present case is disproportionate to the guilt of the delinquent. So far as, the guilt of the Petitioner is concerned, in the domestic enquiry it has been found that the Petitioner is guilty of not issuing tickets to the twenty passengers and the same finding of the domestic enquiry has been upheld by the Labour Court and the High Court.
The Petitioner was a Conductor and holding the position of trust. If incumbent like the Petitioner starts misappropriating the money by not issuing a ticket and pocketing the money thereby causing loss to the Corporation then this is a serious misconduct. It is 10 unfortunate that the Petitioner was appointed in 1988 and in the first year of service he started indulging in malpractice then what can be expected from him in the future. If this is the state of affairs in the first year of service and if such persons are allowed to let off to the light punishment then this will be a wrong signal to the other persons similarly situated. Therefore, in such cases the incumbent should be weeded out as fast as possible and same has been upheld by the Labour Court. We are firmly of the view that such instances should not be dealt with lightly so as to pollute the atmosphere in the Corporation and other co-workers.
8. Normally, courts do not substitute the punishment unless they are shocking disproportionate if the punishment is interfered or substituted lightly in the punishment in exercise of their extraordinary jurisdiction then it will amount to abuse of the process of court. If such kind of misconduct is dealt with lightly and courts start substituting the lighter punishment in exercising the jurisdiction Under Article 226 of the Constitution then it will give a wrong signal in the society. All the State Road Transport Corporations in the country have gone in red because of the misconduct of such kind of incumbents, therefore, it is the time that misconduct should be dealt with iron hands and not leniently.
9. Learned Counsel for the Appellant invited our attention to a decision of this Court in U.P.S.R.T.C. v. Hoti Lal wherein, this Court has very categorically held that a mere statement that it is disproportionate would not suffice to substitute a lighter punishment. This Court held as under:
The court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. The scope for interference is very limited and restricted to exceptional cases. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. A mere statement that it is disproportionate would not suffice. It is not only the amount involved but the mental setup, the type of duty performed and similar relevant circumstances which go into the decision-
making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals 11 with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court are not proper."
In view of the above observation made by this Court there remains nothing more to be added."
5. We find merit in the submission of learned Counsel for the Appellant particularly in view of the law laid down by this Court in the case of Suresh Pal (supra), which is clearly applicable to the case in hand.
6. Accordingly, we allow this appeal, set aside the judgment and order passed by the High Court as well as the award of the labour court and restore the order of punishment."
19. In the said judgment in the matters of Pradeep Kumar (Supra), the Hon'ble Apex Court has held that where there is a criminal breach of trust by an employee or the workman, and particularly, in the set of circumstances, which was almost identical in nature of carrying the passengers without ticket, the Hon'ble Apex Court, has held that wherever there is a breach of trust due to financial irregularity, the reinstatement into the service cannot be directed.
Hence, he submits that the said Labour Court award of modifying the punishment under Section 11-A of the UPID Act, was outside the ambit and the spirit, for which the provisions contained under Section 11-A of the UPID Act, was incorporated by the legislature
20. Learned Counsel for the petitioner had further referred, to yet an another judgment which was rendered in the case of U.P. State Road Transport Corporation and another Vs. Gopal Shukla and another reported in 2015 (8) SCC 241. The Hon'ble Apex Court in the said judgment, too has almost observed that the substitution of the punishment of dismissal, into stoppage of the annual increment with cumulative effect under the aid of Section 6 (2-A) of the UPID Act to be read with Section 11-A of the Act; merely on the basis of a principle of a mercy could not be extended to an employee engaged in financial irregularity, and hence upheld with the order of dismissal from service, on the set of allegations of carrying 25 passengers without tickets, the Hon'ble Apex Court has observed that the 12 modification of the punishment, under the aforesaid circumstances and backdrop ought not have been ventured into by the Labour Court. The reference may be had to the contents of the Paragraph Nos.12, 13 and 14, where the Hon'ble Apex Court wherein it has been held that the Labour Court or for that matter even the High Court, where set of allegations of carrying the passengers without ticket is established, against the employee workman/conductor. The Court should be slow in proceeding to give judicial shelter to a person, who is a corrupt and for that purposes a reference may also be to the paragraph nos.12, 13 and 14 of the said judgment, which are extracted hereunder:-
"12. On a mere glance at the said reasons, it is quite vivid the reasons are really imaginary and reveal some kind of unacceptable theoretical perceptions by the Labour Court. The conduct of the conductor would clearly show that the factum of personal gain was established. The reason given that the passengers would have complained and they would not have taken the side of the conductor and would have made a complaint against the conductor are not based on any evidence, but are eloquently expressed by innate creativity of the Labour Court. As the factual matrix reveals, there could not have been any recovery. The non-recovery of the amount does not mean that there was no personal gain to the conductor or concealing of corruption for personal gains by lodging a report with the police regarding misplacing of waybill by the employee. Needless to emphasise the said charge has been proven in the domestic enquiry. The Labour Court has not really dislodged that finding. It has really proceeded in a mercurial manner and adverted to the issue of misappropriation. It has remained wholly oblivious to the facts that conductor had allowed 25 passengers to travel without ticket; that by virtue of the said act, the Corporation had sustained loss; that he had mischievously lodged an FIR at the police station regarding misplacing of waybill by him; that his conduct manifestly shows his involvement for personal gain, and that the eventual act was to conceal the corruption which was rooted in his personal gain. The finding recorded by the Labour Court 13 on this score is absolutely perverse and the High Court has repeated the reasons and concurred with the conclusion. Thus, the irresistible conclusion has to be that the charge pertaining to personal gain has been proved. We may clearly state that the contrary conclusion would tantamount to ignoring the obvious and, in a way, treating the pinchbeck to be real. Though there is concurrent finding of fact, but the approach being manifestly perverse, the same can be interfered with in exercise of power under Article 136 of the Constitution. It has been so held in Alamelu v. State ((2011) 2 SCC 385), Heinz India (P) Ltd. v. State of U.P. ((2012) 5 SCC 443) and Vishwanath Agrawal v.
Sarla Vishwanath Agrawal ((2012) 7 SCC 288).
13. In view of the aforesaid analysis, the irresistible conclusion is that both the Labour Court and the High Court have fallen in error by imposing a lesser punishment on the respondent- workman whereas the only punishment, on establishment of the charges which have been accepted by the labour court, should have been dismissal and not a lesser one
14. In the facts and circumstances of the case, we are impelled to state that the exercise of power under Section 6(2-A) of the Act by the Labour Court is absolutely arbitrary and it can be said without any shadow of doubt that it has not been exercised in a judicial manner. Additionally, when we have further held that the charge pertaining to personal gain has been established, the said view gets more support. It is so, as has been observed in Shobha Suresh Jumani V. Appellate Tribunal, (2001) 5 SCC 755 that there is a cancerous growth of corruption which has affected the moral standards of people and all forms of governmental administration."
21. The principle laid down by the Hon'ble Apex Court in the case of Niranjan Hemchandra Sashittal V. State of Maharashtra, reported in 2013 4 (SCC), 642, also lays down an 14 identical parameters to deal with corrupt employee, engaged in financial gains, no solace is to be given to them.
22. On the contrary, the argument of the learned counsel for the respondent no.2 by extracting the implications of Section 11-A of the UPID Act, which is quoted hereunder:-
"11-A. Delegation of powers. - The State Government may, by notification in the Official Gazette, direct that any power exercisable by it under this Act or rules made thereunder shall, in relation to such matters and subject to such conditions if any, as may be specified, in the direction, be exercisable also by such officer or authority subordinate to the State Government as may be specified in the notification."
23. The learned counsel for the respondent no.2 had submitted that the exercise of powers by passing the impugned award by modifying the punishment was absolutely justified and hence, this Court; should not ventured into, the eventuality aspect of the matter once the Labour Court has exercised its powers within the ambit of Section 11-A of the UPID Act and in relation thereto, the respondent no.2, has referred the judgment reported in FLR 2000 (85) page 284 "UP State Road Transport Corporation Vs. Subhash Sharma & others" as well as the judgment reported in 2015 (SCC) 12, page 408 "H.L. Gulativs Vs. Union of India and others" and lastly he has referred the judgment rendered in the case of the "Santram V. Rajinderlal reported in AIR 1978 SC 1601".
24. As far as, the argument which has been extended by the learned counsel for the respondent no.2/workman, is that in the light of the aforesaid principles relied, for the purposes of commensurating the punishment to be imposed, I am in disagreement with the argument which has been extended by the learned counsel for the respondent no.2/workman, and the logic for not accepting the principles as sought to be pressed into is that the cases referred to by the learned counsel for the respondent no.2, were the authorities which were though engaging an aspect of carrying passengers without tickets, but it was not engaging an issue whether the fact of carrying 15 of 25 passengers without ticket was an admitted fact, by the workman against whom the enquiry was conducted and the charges were proved, that too when the workmen confines the argument to quantification of punishment, in that eventuality the Act of misconduct amounts to be admitted by him.
25. For the reasons that has been recorded in the process of factual determination which has been made as above, it is clearly established that the respondent no.2, did accepted the act of carrying 25 passengers without ticket and as per my opinion once a financial responsibility is being handed-over to an employee by an employer, it's a reposement of trust, and particularly, to that of a Conductor of the State Transport Corporation, it is a trust of an employer, which has been established to be breached, if he carries the passengers without tickets and no sympathetic or lenient view or soft view, could be taken by slackening the punishment and its magnitude because the established allegations itself, which are having financial implications were sufficient enough for the purposes of dispensation of service of an employee, who on account of his misconduct was found to have committed the financial irregularity. Even, if the implications as per the statutory mandate of Section 11-A of the UPID Act, is taken into consideration, which contemplates an exercise of powers by virtue of allegation made by an Official Gazettee could not be exercised in contravention to the misconduct, which constitutes to be a part, of Part 9 of the Service Rules, 1981.
26. For the reason aforesaid, the scrutinisation of the inquiry proceedings, which was not disputed by the workmen and exercising its inherent powers under Section 11-A of the UPID Act, by modifying the punishment, I am of the view that under the given set of circumstances and particularly in view of the judgment relied by the learned counsel for the petitioner, the Labour Court, has erred at law in interfering in modifying the punishment by converting it into a punishment of withholding of annual increment with future effect, the facts and circumstances doesn't appeal to the this Court and the consciousness of the purpose of Section 11-A of the UPID Act;
16because the nature of punishment imposed by dismissing the service is not shocking enough, looking to the allegations of carrying passengers without ticket, which otherwise stood proof by virtue of evidence which was placed on record and was very well established in the inquiry proceedings against respondent no.2, which was not even disputed by respondent no.2, seriously questioning, any procedural defect in carrying out of the disciplinary proceedings against him.
27. Consequently, the writ petition succeeds and the same is allowed. The impugned award dated 20.08.2001, as published on the notice board on 27.08.2001 which was rendered in Adjudication Case No.134 of 2000, is hereby set aside, consequently upholding the order of dismissal from service dated 26.11.1999, as has been passed by the Disciplinary Authority.
28. During the pendency of the writ petition this Court has been informed that the respondent no.2/workman, had met with the sad demise on 29.06.2011, and his heirs were substituted; having held that the dismissal was justified under the set of misconduct which were leveled against the respondent no.2 (Deceased). In case, if any financial/and other benefit has been paid to the heirs of the respondent no.2 (deceased) as a consequence of the impugned award in question during the pendency of the writ petition, that may not be clamed back to be paid by them, because they cannot be personally attributed with any error of law in availing the said benefit, but however, it is made clear that once this Court by virtue of the present judgment has upheld the dismissal order, no retiral benefits, if any due, as per the Rules applicable by the Department would be paid.
29. For the reasons aforesaid the writ petition is allowed, the impugned award is quashed.
(Sharad Kumar Sharma, J.) NR/