Karnataka High Court
The Managing Director, North East ... vs Ibrahim on 11 December, 2002
Equivalent citations: [2003(97)FLR678], 2003(2)KARLJ13, (2003)IILLJ279KANT, 2003 LAB IC (NOC) 123 (KAR), 2003 AIR - KANT. H. C. R. 734, (2003) 1 KCCR 311, (2003) 97 FACLR 678, (2003) 2 CURLR 182, (2003) 2 SERVLR 546, (2003) 2 LABLJ 279, (2003) 2 KANT LJ 13, (2003) 2 LAB LN 582, 2003 LABLR 456
Author: S.B. Majage
Bench: S.B. Majage
JUDGMENT S.B. Majage, J.
1. The respondent-workman, who was working as conductor, was subjected to domestic enquiry on the charge of not issuing tickets to 9 passengers despite collection of fare from them and thereafter, he was dismissed from service. So, he approached the Labour Court by raising an industrial dispute. The Labour Court held that said charge is not proved, but found violation of "issue and start" rule and consequently, sot aside the order of dismissal and ordered for reinstatement with 25% back wages. Aggrieved by it, the appellant-Corporation filed writ petition in this Court. The learned Single Judge affirmed said finding and maintained the order of reinstatement but refused entire back wages. Hence, this intra-Court appeal by the appellant-Corporation.
2. It is vehemently argued for the appellant-Corporation that charge of pilferage is proved by the evidence adduced, but the Labour Court has wrongly held it as not proved, and similarly, the learned Single Judge has failed to cozisider it and wrongly affirmed the finding recorded by the Labour Court. On the other hand, it is submitted for the respondent-workman that as the Corporation did not examine any witness after the domestic enquiry held to be not fair, the Labour Court was not correct in considering the documents not proved in accordance with law, and hence, the finding of fact recorded by the Labour Court and affirmed by the learned Single Judge that 9 ticketless passengers were found travelling in the bus itself cannot be maintained and even otherwise, said documents cannot establish the charge when no witness has been examined to prove them.
3. At the outset, it may be noted that, the respondent-conductor himself admitted that there were 9 ticketless passengers in the bus conducted by him, when it was checked. So, no evidence much less any proof was required to hold that respondent-workman had violated "issue and start" rule, which the Labour Court and the learned Single Judge held as proved.
4. Since Corporation not adduced oral evidence and relied on Exs. M. 1 to M. 14, it is argued for the respondent that Exs. M. 1 to M. 14 could not have been considered. So, whether or not, 14 documents marked for the Corporation "with consent" of both sides, could be looked into or Considered as evidence in the case, is the point.
5. In the case of State of Haryana and Anr. v. Rattan Singh, the Supreme Court has clarified and declared that "in a domestic enquiry, the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. Their lordships have further clarified that in domestic enquiry, what is required to be ascertained is, whether there is some evidence or was there no evidence, not in the sense of technical rules governing regular Court proceedings but in a fair commons ensure way as men of understanding and worldly wisdom will accept. Same has been reiterated by this Court in the case of North, West Karnataka Road Transport Corporation, Hubli and Anr. v. S.S. Poleshi, 2000(4) Kar. L.J. 538. The documents at Exs. M. 1 to M. 14 were marked with consent of both sides. If the argument of the learned Counsel for the respondent-workman is to be accepted and they could not have been looked into, marking them as exhibits with consent had no meaning or significance. So, the argument advanced for the respondent-conductor that said documents could not have been looked into or considered, has no force.
6. Though the Labour Court rightly considered said documents, it appears that it has not accepted the case of the Corporation about collection of fare from the 9 passengers by the respondent-Conductor on the grounds: that ticketless passengers' statement was in a printed form; that none of them was examined and that presence of penalty receipt at Ex. M. 3 shows non-collection of fare by the respondent, though there is no categorical/specific finding to that effect. So, whether or not, the Labour Court was right in holding so, is the next point for consideration.
7. In the case of Rattan Singh, supra, the Supreme Court has held that non-examination of the ticketless passengers is not a ground to hold that charge of pilferage is not proved. Same view is taken by this Court in the case of S.S. Poleshi, supra. Simply because statement of ticketless passengers is in a format, that does not lose its credibility. Whether statement could have been believed or not, is a different aspect, but to say that it could not have been looked into or considered, is not a correct proposition of law.
8. In view of penalty receipt, the Labour Court and also the learned Single Judge took the view that if, really, passengers had paid fare to the respondent-workman, there was no occasion for collecting penalty from such passengers and hence, non-collection of fare from 9 ticketless passengers by the respondent cannot be accepted. However, according to the Corporation, whenever a ticketless passenger is found in the bus, whether he had paid fare or not, for not possessing ticket by him, penalty is collected from such passenger not only to deter but also to motivate a passenger not to travel without a valid ticket.
9. Thus, the grounds, on which the Labour Court and the learned Single Judge held that charge of pilferage i.e., collection of fare from 9 ticketless passengers by respondent is not proved, do not come to the aid of respondent-conductor. So, the conclusion arrived at by them that there was no collection of fare from 9 passengers, is not correct. Further, the respondent-Conductor did not examine the Police Inspector at whose instance, he allowed 9 passengers without ticket, nor he stepped into the witness-box, nor brought any material on record in support of his defence before the Labour Court. So, in the circumstances and material on record, when kept in mind the law laid down by the Supreme Court in the case of Rattan Singh, supra, regarding the quality of evidence required in such cases, it can be said that the charge of pilferage against the respondent is proved.
10. Even otherwise, according to the respondent-conductor himself, admittedly, 9 ticketless passengers were present in the bus when it was checked though, of course, according to him, they were student pass holders, who did not possess pass, and he obliged them in view of the request made by Police Inspector. It need not be said that carrying ticketless passengers by a conductor in a bus conducted by him itself is a serious misconduct.
11. At this juncture, reference can be had to the fact that the respondent-conductor had 31 earlier misconduct to his credit when he was subjected to domestic enquiry for the charge in question. Whether or not he was informed about his past history is immaterial, as held by this Court in the case of Karnataka State Road Transport Corporation v. A. Ramanna, ILR 2001 Kar. 2914 and also in the case of E. Gurumurthy v. Karnataka State Road Transport Corporation, Bangalore, 2002(2) Kar. L.J. 1 : ILR 2002 Kar. 600. It is for the reason that the past history can be taken into consideration only while imposing punishment and not for holding whether or not charge is proved.
12. In the present matter, the charge of pilferage is held proved. Even otherwise, the Labour Court and the learned Single Judge have held that 9 ticketless passengers were being carried in the bus by the respondent-Conductor; which itself is a serious misconduct. So, now the question of quantum of punishment comes for consideration.
13. In the case of Regional Manager, R.S.R.T.C. v. Ghanshyam Sharma, 2002-I-LJJ-234 (SC) the Supreme Court has observed as under:
"4. This Court in Karnataka State Road Transport Corporation v. B.S. Hullikatti, has held that in such cases where the bus conductors carry passengers without ticket or issue tickets at a lesser rate than the proper rate, the said acts would inter alia amount to either being a case of dishonesty or of gross negligence and such conductors were not fit to be retained in service because such inaction or action on the part of the conductors results in financial loss to the Road Transport Corporation. This Court was firmly of the opinion that in cases like the present, orders of dismissal should not be set aside.
5. Furthermore, we agree with the observations of the Single Judge in the present case that the Labour Court was not justified in interfering with the punishment of dismissal. Though under Section 11-A, the Labour Court has jurisdiction and powers to interfere with the quantum of punishment, however, the discretion has to be used judiciously. When the main duty or function of the conductor is to issue tickets and collect fare and then deposit the same with the Road Transport Corporation and when a conductor fails to do so, then it will be misplaced sympathy to order his reinstatement instead of dismissal".
(emphasis supplied)
14. However, when the said decision was relied on for the appellant-Corporation, the learned Single Judge has distinguished it on the ground that negligence of the respondent-Conductor is not of such magnitude as the one that was concerned before the Supreme Court since, according to the learned Single Judge, it is a case of failure to comply with "issue and start" rule and not a case, wherein such gross negligence as Supreme Court has noticed in the case of Ghanshyam Sharma, supra, could be attributed to the respondent-conductor.
15. We do not agree with the said view of the learned Single Judge, since it is clearly held in the said decision that as the main duty or function of the conductor is to issue tickets and collect fare, and if a conductor fails to do so, or when the bus conductor carry passengers without ticket, then it will be misplaced sympathy to order his reinstatement instead of dismissal.
16. In fact, in the case of Janatha Bazar (South Kanara Central Co-operative Wholesale Stores Limited) and Ors. v Secretary, Sahakari Noukarara Sangha and Ors., the Supreme Court has held that "Once an act of misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employee in service".
17. Not only that, there is a catena of decisions of the Supreme Court that when serious charge of misconduct is held proved, the only appropriate punishment is dismissal of workman from service and nothing less than that. If need be, reference can be had to the decisions in the cases of Apparel Export Promotion Council v. A.K. Chopra, . U.P. State Road Transport Corporation v. Subhash Chandra Sharma and Ors., U.P.S.R.T.C. v Mohan Lal Gupta, (2000)9 SCC 521 : 2001 AIR SCW 2330 B.S. Hullikatti, supra, Union of India and Ors. v Narain Singh, and latest one in Devendra Swamy v. Karnataka State Road Transport Corporation, . So also, this Court, in the cases of S.S. Poleshi, supra, A. Ramanna, supra and E. Gurumurthy, supra, has held that in such cases, punishment of dismissal of workman from service is the appropriate punishment.
18. In the instant case, though we have held that charge of pilferage is proved, still even if what is held by the Labour Court and also by the learned Single Judge that 9 ticketless passengers were admittedly found travelling in the bus conducted by the respondent-conductor, is considered, then also, in view of the well-settled law, even in such a case also, respondent-conductor cannot be retained in service. According to us, it will be misplaced sympathy to order his reinstatement instead of dismissal and as such, the award passed by the Labour Court and order of the learned Single Judge cannot be maintained.
In the result, the appeal is allowed and the impugned award and order are set aside and the order of dismissal of respondent-workman passed by the Disciplinary Authority is restored. However, in the circumstances, parties are directed to bear their respective costs.