Karnataka High Court
E. Gurumurthy vs Karnataka State Road Transport ... on 10 January, 2002
Equivalent citations: [2002(94)FLR217], ILR2002KAR600, 2002(2)KARLJ1, 2002 AIR - KANT. H. C. R. 359, 2002 LABLR 334, (2002) 94 FACLR 217, (2002) 2 KANT LJ 1, (2002) 2 LABLJ 155, (2002) 3 SCT 1026, (2002) 4 SERVLR 162, (2002) 1 CURLR 886, (2002) 2 LAB LN 613
Author: N. Kumar
Bench: N. Kumar
JUDGMENT N.K. Jain, C.J.
1. It is alleged that the appellant-workman was a permanent employee working as a conductor and while he was on duty in bus No. MYF-2671, the vehicle was checked by the squad on 5-3-1985 before Stage No. 23, Kumaranahalli and it was found that 30 passengers out of 72 were without ticket. A charge-sheet was issued on four points, namely, that the conductor had failed to issue tickets to two passengers travelling from Harapanahalli to Nelagondanahalli; four passengers travelling from Harapanahalli to Arsikere; and 13 passengers travelling from Harapanahalli to Hikkingere cross despite collection of fare from each of the passengers and further failed to issue tickets to 11 other passengers travelling from Harapanahalli to Kumaranahalli despite collection of fare from two of them and had neither collected any fare from remaining passengers nor issued tickets to them. Also a penalty of Rs. 54A was recovered from the 9 passengers who had not paid the fare. A memo was issued on the misconduct. An article of charge was also issued on 21-3-1985. After enquiry, he was dismissed from service on 24-1-1986. An industrial dispute was raised. The Labour Court held that the domestic enquiry is not fair and proper. Thereafter, both the management and the workman adduced evidence. On appreciation of the said evidence, the Labour Court held that the charge relating to non-issue of tickets to nine passengers is proved and it was also found that the checking squad had collected penalty from these nine passengers travelling ticketless in the bus. Taking into consideration Section 11-A of the Industrial Disputes Act ('Act' for short), the Tribunal passed the award dated 6-2-1997 setting aside the order of dismissal and directing reinstatement of the workman into service with back wages from 30-3-1990. The respondent-KSRTC challenged the same in Writ Petition No. 4352 of 1999. Initially interim order was passed on 11-2-1999 and in pursuance of that he was reinstated.
2. The learned Single Judge on consideration of the material facts ultimately found that the respondent-KSRTC had adduced evidence to prove the charge, so also the workman to disprove the charge. It was observed that the Tribunal on consideration found that the charges relating to non-issuance of tickets to 9 passengers has been proved and it was also found that the checking squad had collected penalty from those 9 passengers travelling ticketless in the bus. It was further observed that in spite of the fact that the said charge has been proved, the Labour Court has ordered reinstatement with full back wages, which according to the learned Single Judge was not justified. Learned Single Judge also considered the decision of the Apex Court in Karnataka State Road Transport Corporation v B.S. Hullikatti, wherein the Supreme Court held that a person who is held to be guilty of non-issuance of tickets should not be retained in service. Considering the admitted facts that the conductor-respondent was involved in 18 other earlier cases during his service and considering the Supreme Court decision on the point to take note of the past conduct for the purpose of imposing punishment, the learned Single Judge allowed the writ petition and set aside the award of the Labour Court. Hence this appeal.
3. The learned Counsel for the appellant-workman submits that the learned Single Judge has erred in reversing the award of reinstatement and further submitted that once the Industrial Tribunal has recorded the finding that the charges of collection of fare in respect of all passengers has not been established, the learned Single Judge should not have reversed the finding on that basis. He also submits that the appellant-workman could not issue the tickets as the vehicle was intercepted by checking squad and this fact has not been considered by the learned Single Judge. Therefore, the order of the learned Single Judge is liable to be set aside.
4. We have heard the learned Counsel for the parties and perused materials placed on record and also the case-laws relied on by the learned Counsel.
5. The main argument is that when it has been held by the Tribunal that the respondent-KSRTC had failed to prove that the appellant-workman had not collected the bus fare from all the passengers, the order of the Tribunal should not have been set aside. The same is not tenable for the reason that mere non-collection of fare by not issuing tickets will not absolve the liability of appellant-workman when the passengers were travelling without tickets. Admittedly, it has come on record and has not been disputed that on checking, the appellant-workman had not issued tickets to 9 passengers and the checking squad had collected penalty from them who were travelling ticketless. Therefore, reinstatement on the basis of observation that the conductor has not collected the fare from all the passengers has not been established is improper. The argument that the appellant-workman had not issued the tickets as the vehicle was intercepted by the checking squad will not be of any help and not acceptable at this stage. Moreover, this explanation was not offered at the earliest point of time nor was agitated before the learned Single Judge. In view of this the appellant-workman cannot take advantage of that fact. The appellant-workman can be held guilty for non-issuance of tickets and not entitled to continue in service and this non-collection of fare has resulted in a loss to the Corporation. The learned Single Judge has rightly applied the decision of the Supreme Court in Karnataka State Road Transport Corporation's case, supra, wherein while considering a case of respondent who had put in 22 years of service as conductor and charged 50 paise per ticket less, by issuing tickets of lesser denomination, from as many as 35 passengers to get financial benefit, it was held the act was either dishonest or was grossly negligent and the respondent was not fit to be retained as a conductor as such action was bound to result in financial loss, held that dismissal should not have been set aside. However, since he was superannuated the Court has not set aside the reinstatement but directed non-entitlement for back wages. Their Lordship also made the following observation:
"It is misplaced sympathy by the Labour Courts in such cases when on checking, it is found that the bus conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower denomination knowing fully well the correct fare to be charged. It is the responsibility of the bus conductors to collect the correct fare from the passengers and deposit the same with the Company. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare".
6. It has also come on record that the appellant-workman during his service was involved 18 times on earlier occasions and the same has not been disputed. Therefore, the petitioner cannot take advantage of the Labour Court's observation that "the admission of W.W. 1 that he was involved in certain cases of misconduct will not be of any assistance to the management to show that the quantum of punishment is justified", which is not correct. So the argument that he cannot be dismissed considering his earlier misconduct and that the punishment is disproportionate to the charge proved is not acceptable. No doubt, merely on the basis of past misconduct, one cannot be held guilty of the misconduct in a case, which is being tried or is the issue in question. But, when the charge in a ease in issue is proved, the past conduct can be taken into consideration as per Regulation 25 of the Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971 while imposing the punishment even without giving an opportunity of hearing. In the instant case, as stated on earlier occasion the appellant-workman was 18 times involved in misconduct and in view of Regulation 25 and looking to the past conduct of appellant-workman, imposing punishment of dismissal of the appellant-workman cannot be said to be bad. The order of the learned Single Judge needs no interference. The argument that the punishment imposed is disproportionate to the charge proved is not sustainable at this stage and the decision relied on in Management of Shri Ganapati Bus Service, Thirunelveli v Presiding Officer, Labour Court and Others1, is not applicable to the facts of the case on hand. A reference can be made to the case of Uttar Pradesh State Road Transport Corporation v Basudeo Chaudhary, wherein the conductor was removed on the ground of alleged misconduct of attempting to cause loss of Rs. 65/- to the Corporation by issuing tickets to 23 passengers for a sum of Rs. 2.35 but recovered Rs. 5.35 per head and also making entry in the waybill as having received the amount of Rs. 2.35 which was subsequently altered to Rs. 2.85. The Court held that it was not possible to say that the Corporation removing the conductor from service has imposed a punishment which is disproportionate to his misconduct. Similarly, in Punjab Dairy Development Corporation Limited and Another v Kala Singh, it was held once the misconduct was proved, the necessary consequence will be that the management had lost confidence and that the Labour Court had rightly declined to exercise the power under Section 11-A to grant relief with minor penalty. A reference can also be made to the decision of the Supreme Court in Janatha Bazar (South Kanara Central Co-operative Wholesale Stores Limited), Mangalore and Others v Secretary, Sahakari Noukarara Sangha and Others, wherein, in a reference the Labour Court directed reinstatement with 25 per cent back wages on the ground that his past record was without blemish and the High Court upheld the same. The Supreme Court held that the proved cases of misappropriation do not call for any judicial review and further held that in the absence of any evidence regarding past misconduct by the employees the Labour Court cannot substitute the penalty.
7. Lastly, it was argued that the learned Single Judge has erred in considering Section 11-A of the Act. On consideration, we find that when the Labour Court has exercised its discretion invoking Section 11-A of the Act, this Court is equally competent to exercise the same to the effect and can see as to whether the discretion so exercised is arbitrary or capricious and not justified in the facts of the given case as each case depends upon the facts and circumstances of its own. That apart in a case of proved misconduct, the Labour Court cannot give reinstatement on the basis of sympathy invoking Section 11-A. As stated, in above case misconduct has been proved and to our mind, once the employer has lost confidence in his workman, looking to his past conduct, the dismissal order cannot be set aside reinstating him invoking Section 11-A. Therefore, the argument that Section 11-A cannot be invoked, has no substance.
8. No other point was raised.
9. In the facts and circumstances of the above case as discussed, the learned Single Judge has rightly set aside the order of the Tribunal and restored the order of the Corporation dismissing the appellant-workman. In view of the above discussion, we find no error or illegality in the order of the learned Single Judge so as to call for any interference.
10. This writ appeal is dismissed with no order as to costs.