Madras High Court
Pandian Roadways Corporation Ltd. vs Presiding Officer, Principal Labour ... on 21 December, 2000
Equivalent citations: (2001)IILLJ287MAD, (2000)IIMLJ721
JUDGMENT T. Meenakumari, J.
1. The writ petitions are for the issue of writ of certiorari to call for the records of the first respondent in I.D. No. 591 of 1990 and I.D. No. 638 of 1989, dated January 18, 1993 and August 24, 1992, respectively and quash the same.
2. The case of the petitioner in W.P. No. 13679 of 1993 is that the second respondent was employed as a conductor. When the bus was taking the trip to Anuppanadi at 16.30 hrs., it was checked by the checking Inspector at Sourashtra Colony stop. When the second respondent saw the checking inspector he rushed towards the passenger and after receiving the tickets from the passenger, he punched the tickets. The checking inspector after noticing this recovered the tickets from the passenger to verify the tickets. While verifying the tickets, it was found that 3 tickets for Rs. 1.35 were punched in the down II stage instead of up I stage. During the time of enquiry one passenger told the checking inspector that she along with two others were travelling from Anuppanadi to Neliyur and that when she got into the bus she had paid Rs. 10 to the second respondent and after receiving the money the second respondent issued three tickets and the balance to be returned to the passenger was written on the reverse of the ticket. According to the checking inspector, this amount had been written with an intention of getting back the tickets from the passenger and the second respondent had entered the tickets in the invoice as the starting numbers from Neliyur so that he could reissue the same tickets in Neliyur to Anuppanadi down trip. The checking inspector was of the view that the second respondent had the intention of reissuing the same ticket and misappropriating amount. After enquiry, the checking inspector submitted a report on August 29, 1989.
3. The case of the petitioner in W.P. No. 1485 of 1993 is that the second respondent therein was employed as a conductor in the Pudur Branch of the petitioner-Corporation. On January 14, 1988 he was on duty in Bus TML 6475 plying in the route between Periyar Bus Stand and Azhagarkoil. While the bus was proceeding from Azhagarkoil towards Periyar Bus Stand, the checking inspectors checked the bus at Sundararajanpatti at about 6.55 P.M. At the time of checking there were 37 passengers in the bus. After taking the invoice from the conductor, the checking inspectors started checking the tickets from the passengers individually. While checking the tickets a passenger who was travelling with a group of passengers gave 11 tickets. On examination of the tickets, it was found that the tickets were punched in the up trip i.e., from Periyar Bus Stand to Azhagarkoil. On enquiry from the passengers the checking inspectors were informed that they had paid the money to the conductor and that the conductor had issued the tickets. When the checking inspectors examined the invoice, they found that in the invoice the tickets had been issued in the up trip and after obtaining those tickets from the passengers who had travelled in the up trip, the tickets were again reissued to passengers in the down trip. The checking inspectors made an enquiry. On enquiry it was found that the second respondent had reissued the ticket and tried to misappropriate the amount. The checking inspector made a report to the petitioner-Corporation on January 17, 1988.
4. On the basis of the reports submitted by the checking inspectors the second respondent in each of the writ petitions was issued with charge-memo on September 6, 1989 and April 5, 1988 respectively calling upon them to submit their explanation. Accordingly, they submitted their explanation on September 11, 1989 and May 5, 1988 respectively. As the explanation submitted by the second respondent was not satisfactory the petitioner conducted a domestic enquiry.
The enquiry officer gave his findings on September 18, 1989 and December 24, 1988 respectively holding that all charges levelled against the second respondent were proved. Subsequently the petitioner-Corporation issued second show-cause notice to the second respondent in each of the writ petitions on September 23, 1989 and February 9, 1989 respectively directing the second respondent to submit his explanation for the proposed punishment of dismissal. The case of the petitioner is that the second respondent in each of the writ petitions was punished 37 times and 21 times respectively on prior occasions. The second respondent submitted explanation on September 27, 1989 and February 25, 1989 respectively. As the explanation submitted by the second respondent in each of the writ petitions did not contain any reason to reconsider the proposed punishment, they were dismissed from service with effect from November 23, 1989 and April 25, 1989 respectively. Aggrieved by the order of dismissal they approached the first respondent Labour Court under Section 2-A(2) of the Industrial Disputes Act and the same was taken on file in I.D. No. 591 of 1990 and 638 of 1989 respectively. The Labour Court by award dated January 16, 1993 and August 24, 1992, has set aside the order of dismissal and directed the petitioner herein to reinstate the second respondents herein in service with back wages. Aggrieved by the said orders, the petitioner-Corporation has filed the above writ petitions.
5. The Labour Court has set aside the order of dismissal passed against the second respondents in each of the writ petitions on the ground that the charge did not fall within the scope of Standing Orders 16(5), the management had not obtained any statement from the passenger and the management had not properly considered the scope of past punishments. The Labour Court has also held that the management had not proved that the second respondent herein had used the old tickets and misappropriated the collection amount.
6. Learned counsel for the petitioner has assailed the award on the ground that the charges levelled against the second respondents herein clearly fell within the scope of Standing Orders 16(5). Hence the findings of the Labour Court that it will not attract the provisions of Standing-Order 16(5) is erroneous. Learned counsel for the petitioner has further argued that the Labour Court has erred in holding that inasmuch as the second respondent had only attempted to misappropriate the amount, the same would not fall within the scope of Standing Order 16(5). At this juncture, learned counsel for the petitioner brought to the notice of the Court the Standing Order 16(5) which reads thus:
"Theft, fraud or dishonesty in connection with the company's business or property or a theft of another employee's property within the establishment."
In the light of the above, learned counsel for the petitioners submitted that as the second respondent in each of the writ petitions has attempted to misappropriate the petitioner's amount by reissuing the same tickets. It would amount to fraud or dishonesty in connection with the company's business. Learned counsel for the petitioner has further submitted that the other factor which weighed with the Labour Court that the statement of the passengers have not been obtained is also misconpeived for the fact that the checking inspector was examined as a witness in the domestic enquiry. He deposed that there was attempted misappropriation on the part of the second respondent herein. The checking inspector was also permitted to be cross-examined by the second respondent, but, for the reasons best known to the second respondent, they did not choose to cross-examine the checking inspector. Learned counsel for the petitioner submitted that the second respondent in each of the writ petitions was punished for 57 times and 21 times respectively and the same has been brought to the notice of the delinquent in the second show-cause notice. The past conduct of the second respondent itself will not entitle them for reinstatement. Learned counsel for the petitioner has argued that the Labour Court without taking into consideration these facts has set aside the order of dismissal passed by the petitioner against the second respondent in each of the writ petitions and has directed the petitioner herein to reinstate them in service. Hence the orders passed by the first respondent Labour Court in I.D. Nos. 591 of 1990 dated January 18, 1993 and 638 of 1989 dated August 24, 1992 are liable to be set aside. Relying upon the decision of the Supreme Court in Chandra Shekara Chart H. S. v. Divisional Controller K.S.R.T.C. , learned counsel for the petitioner has argued that if charges against workmen are not established, reappraisal of evidence cannot be made and the Court cannot go into the question whether charges could have been established by better or further evidence and it is not the function of the quasi-judicial authority.
7. Learned counsel for the second, respondent in each of the writ petitions submitted that the first respondent Labour Court was perfectly right in setting aside the punishment of dismissal on the ground that the charges have not been proved. Learned counsel, has also argued that the service records of the second respondent have not been properly considered by the petitioner-Corporation. Relying upon the decision of this Court in Virudhachalam Co-operative Urban Bank Ltd. v. Presiding Officer, Labour Court, Cuddalore 1995-II-LLJ-173 (Mad) learned counsel for the respondents has argued that the High Court is not the appellate authority over the conclusions arrived at by the Labour Court in setting aside the punishment of dismissal. He has also relied upon the decision of the Supreme Court in Chandra Shekara Chari case (supra), to the extent that this Court cannot go into the question whether charges could have been established by better or further evidence.
8. Learned counsel for the petitioner has filed English translation of the respective impugned award. So far as I.D. No. 591 of 1990 is concerned, the Labour Court has observed that when the explanation given by the workman was gone through, he had told that he had mistakenly punched in Down 2 instead of punching in Up 1. The report given by the inspector has been marked as Exhibit M-8. The report says that the workman had punched the tickets of the starting numbers in the down buses to reissue them and that he had punched the last number tickets, with an intention to reissue them. The inspectors when they checked came to know that those tickets were punched wrongly. As per the statement of the management, it was stated that the second respondent herein, only after seeing the inspectors rushed and got the tickets from that passenger and punched them. Even if it was taken to be true, then it was not necessary for the workman wantonly to punch wrongly, even after seeing the inspectors. The Labour Court has further observed that there is no statement as to the receipt of the tickets once again from that passenger. Moreover, if he had thought to reissue the tickets after getting them from the passenger, there is no necessity for him to write the balance amount in the back side of the tickets. Further it should be taken into consideration that no statement was received from the passenger. The passenger was not even enquired in the domestic enquiry. If the passenger would have been examined, it would have been clear whether the conductor came to her after seeing the inspectors and punched the rickets or whether the conductor had punched the tickets while issuing to the passenger. If it is taken into consideration, that the passenger has not been enquired on the management side, it could be decided that the tickets were already issued to the passenger and they were also punched and so he was not enquired and no statement was obtained from him. On the charge that the conductor had tried to misappropriate Rs. 4.05 belonging to Corporation, the Labour Court has observed that only if the tickets were obtained from the passenger and reissued to some other passenger, then only it could be considered as misappropriation. There was no evidence that the conductor had received the tickets from the passenger. The charge has been levelled against him only on the suspicion that the tickets may be reissued in the next trip. The Labour Court has further observed that only if the tickets had been reissued and a charge of misappropriation was present, then only it could be considered as an offence under 16(5) of the Standing Order. The Labour Court has also observed that the conductor was issued with the second show-cause notice. In that, it was shown, that a warning was given to the petitioner in the previous years and fine has been imposed on him. Keeping in mind that he had wrongly punched, charge has been framed only on the basis of the presumption that because of that he can misappropriate causing loss to the management. At this juncture, it is clear that the conductor's previous service record was also not properly considered by the management. For all these reasons, the Labour Court has set aside the order of dismissal passed against the second respondent herein in W.P. No. 13679 of 1993.
9. So far as I.D. No. 638 of 1989 is concerned, the Labour Court has observed that there was no proper evidence for the charges that the ticket numbers specified in the old tickets have been used again. On seeing the continuity of the tickets the management has come to the conclusion that the tickets have been punched and they were issued from stage 1, i.e., from Periyar Nagar Bus Stand to Azhagar Kovil. But as per the receipts showing the collection and the first ticket number appears to be No. 37195 and the tickets, instead of punching No. 13, it had been wrongly punched against No. 1. Hence it was decided by the management witnesses that the tickets were old and used. It was agreed by the workman that the tickets collected from the passengers under Exhibit M-13 were continuous. The tickets issued as such, have been entered in the invoice book by the conductor. The tickets that were used for the upward journey from Periyar Nagar Bus Stand to Azhagar Kovil in which the beginning numbers of the tickets could not be identified by the management while going through the entry in the invoice book Exhibit M-12. The Labour Court has held that the charge relating to the issue of old tickets was not proved by the management. The Labour Court has further held that the management had not proved that the conductor had used the old tickets and misappropriated the collection amount. For these reasons, the Labour Court has set aside the order of dismissal passed against the conductor by the management and directed the management to reinstate the workman in service.
10. In Chandra Shekara Chari case (supra), the Supreme Court in para 9 of its decision has observed as follows in 1999-I-LLJ-1322 at p. 1325:
"9. ... Once the Tribunal has found that the charges against the appellant were not established, it was not open to the learned single Judge, who had rightly refused to re-appreciate the evidence to say that with better proof the charges could have been established. The learned single Judge had no jurisdiction, not even under Section 11-A of the Industrial Disputes Act, 1947, to enter into the question whether the charges could have been established by better or further evidence. That is not the function of the Court or any quasi-judicial authority. If it is found as a fact that the charges are not established, then the necessary consequences have to follow and, as a corollary thereto, appropriate orders are to be passed. There may be circumstances justifying non-payment of full back wages but they cannot be denied for the reason that the charges could have been established with better proof. If 'better proof' was available with the management, and it was not furnished or produced before the Court, a presumption would arise that such proof, if furnished, would have gone against the management. We are surprised that the view propounded by the learned single Judge, which falls in the realm of speculation, has been upheld by the Division Bench."
11. In the cases on hand also, I am of the view that the Labour Court after considering the materials on record and after going through the evidence adduced by both the sides, has come to the conclusion that the charges levelled against the second respondent in each of the writ petitions, were not established and has rightly set aside the order of dismissal passed by the petitioner-Corporation against the second respondent in each of the writ petitions and directed the petitioner- Corporation to reinstate them in service following the decision of the Supreme Court in Chandra Shekara Chari case (supra). It has been held in para 9, of 1999-I-LLJ-1322 at 1325:
"..... this Court has no jurisdiction not even under Section 11-A of the Industrial Disputes Act, 1947, to enter into the question Whether the charges could have been established by better or further evidence. That is not the function of this Court or any quasi-judicial authority....."
For the reasons stated above, I see no ground to interfere with the impugned orders. The writ petitions are dismissed. No costs.