Allahabad High Court
U.P. State Road Transport Corporation ... vs Smt. Meena Kumari Dixit W/O Late Sri ... on 28 August, 2006
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
JUDGMENT Sudhir Agarwal, J.
1. Heard Shri Rahul Anand Gaur, learned Counsel appearing on behalf of U.P. State Road Transport Corporation (hereinafter referred to as the Corporation) the petitioner and Shri D.N. Dubey, learned standing counsel appearing for contesting respondent No. 1.
2. The writ petition is directed against the award of the Labour Court dated 16.7.1988 holding that punishment of dismissal of the workman (Shri Laxmi Kant Dwivedi) from the post of Conductor on the charges of carrying passengers without ticket is harsh and disproportionate and thereby setting it aside, it has granted relief of back wages to the extent of 1/4* of the salary to the workmen.
3. The brief facts giving rise to the writ petition are that the workman, late Laxmi Kant Dwivedi, was appointed as Ticket Conductor at Mahoba Depot of Corporation in October 1990. While he was discharging his duty at bus No. U.P. 93/2349 running between Kanpur and Khajuraho, the aforesaid bus was checked by Senior Station Incharge, in which 24 passengers out of 50 passengers were found travelling without ticket. His explanation was sought for and thereafter departmental enquiry was conducted whereupon the charges were found proved and by order dated 30.6.1994 he was dismissed from service. The workman raised an industrial dispute, which was referred for adjudication to the Presiding Officer, Labour Court, Kanpur registered as Adjudication case No. 297 of 1996. The workman concerned sought to assail order of punishment on the ground that no passenger was found without ticket, enquiry was conducted ex-parte, an outsider was appointed as Enquiry Officer and he was not afforded any opportunity to cross-examine witnesses. When the proceedings were pending before the Labour Court, the workman died and substituted by respondent No. 1 being his legal heir.
4. The Labour Court after hearing all the parties held that the charge levelled against the workman that he was carrying 24 passengers without ticket is proved. He discarded the defence that the allegations were levelled against the workman for extraneous consideration, and, has recorded a finding of fact that the charge stands proved. Thereafter, he proceeded to consider the question of punishment and considering the fact that the workman died leaving behind his widow having two minor children who are facing starvation on account of non-availability of any source of earning livelihood set aside the punishment of dismissal' and has directed the appellant to pay arrears of salary to the widow from the date of the order of the dismissal to the extent of 1/4th of the arrears of salary.
5. Learned Counsel for the employer, Corporation vehemently contended that once the charge of serious misconduct of carrying passengers without ticket was found proved the Labour Court erred in law and committed manifest error apparent on the face of record by interfering with the quantum of punishment.
6. On the contrary learned Counsel for respondent No. 1 contended that enquiry was not conducted fairly, the workman was not afforded opportunity, there was no material to show that passengers were travelling without ticket and the entire finding is perverse.
7. Heard learned Counsel for the parties and perused the record.
8. From the perusal of record it is apparent that the Labour Court has recorded a finding of fact that departmental proceedings have been conducted against the petitioner workman giving him due opportunity of defence and the charges were also found proved. In this view of the matter it is not permissible to review such findings particularly at the instance of respondent No. 1 who has not challenged the same.
9. Now coming to the question as to whether the Labour Court was justified in setting aside the punishment of removal on the ground of being harsh, excessive and non-commensurating to the gravity of charge, it has to be answered considering the ambit of power which the Labour Court could have exercised in such matters. It will be appropriate to have a brief resume of precedents on the question as to whether and when it is open to Industrial Tribunal or Labour Court to interfere with the quantum of punishment.
10. Under Section 11A of the Industrial Disputes Act, 1947 the Labour Court and Tribunal have been empowered to set aside the order of discharge or dismissal where an industrial dispute relating to the discharge or dismissal is referred for its adjudication and in the course of adjudication proceedings, it found that the order of discharge or dismissal is not justified. The Labour Court and the Tribunal is also empowered, in such case, to direct the employer to reinstate the workman on such terms and conditions as it deems fit or to give such other relief to the workman including the award of lesser punishment in view of discharge or dismissal.
11. Section 11A of the Industrial Disputes Act, 1947 is reproduced as under:
11-A. "Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen-
Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case maybe, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:
Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.
12. This provision came up for consideration before a three-Judge Bench of the Apex Court in Union of India v. B.C. Chaturvedi and it was held that interference on the proportion of punishment of penalty is permissible only when the punishment or penalty is shockingly disproportionate.
13. In Colour-Chem Ltd., v. A.L Alaspurkar and Ors. it was held:
Consequently, it must be held that when looking to the nature of charge of even major misconduct which is found proved if the punishment of dismissal or discharge as imposed is found to be grossly disproportionate in the light of the nature of the misconduct or the past record of the employee concerned involved in the misconduct or is such which no reasonable employer would ever impose in like circumstances, inflicting of such punishment itself could be treated as legal victimization.
14. In U.P. State Road Transport Corporation v. Subhash Chandra Sharma and Ors. the Court referred to Section 11 of Industrial Disputes Act, 1947 & held where the charge of misconduct found proved against the workman is serious, the Labour Court is not justified in interfering with the order of removal. In the aforesaid case, the charge against the workman was that he, in a drunken state, went to the Assistant Cashier in the Cash room alongwith the Conductor and demanded money from the Assistant Cashier. When refused the workman abused him and threatened to assault him. The aforesaid charge was proved but the Labour Court held that the punishment of removal is not justified and therefore set aside the same. The Apex Court disapproving interference of the Labour Court in the matter of punishment, observed as under:
It was certainly a serious charge of misconduct against the respondent In such circumstances, the Labour Court was not justified in interfering with the order of removal of respondent from the service when the charge against him stood proved. Rather, we find that the discretion exercised by the Labour Court in the circumstances of the present case was capricious and arbitrary and certainly not justified. It could not be said that punishment awarded to the respondent was in any way "shockingly disproportionate" to the nature of the charge found proved against him.
15. In Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh it was held that the punishment of dismissal awarded to the workman could have been interfered only if it is disproportionate to the misconduct proved by the workman and not otherwise. In Muriadiah Colliery Kamgar Union v. Bihar Collieri Kamgar Union referring to Section 11A of the Industrial Dispute Act, 1947. The Apex Court held:
It is well established principle in law that in a given circumstance it is open to the Industrial Tribunal acting under Section 11(A) of the Industrial Disputes Act, 1947 has the jurisdiction to interfere with the punishment awarded in the domestic inquiry for good and valid reasons. If the Tribunal decides to interfere with such punishment it should bear in mind the principle of proportionality between the gravity of the offence and the stringency of the punishment....
16. In Hombe Gowda Educational Trust and Anr. v. State of Karnataka and Ors. the Apex Court after a review of the entire earlier case law observes as under:
This Court repeatedly has laid down the law that such interference at the hands of the Tribunal should be inter alia on arriving at a finding that no reasonable person could inflict such punishment The Tribunal may furthermore exercises its jurisdiction when relevant facts are not taken into consideration by the Management which would have direct bearing on the question of quantum of punishment.
17. In M.P. Electricity Board v. Jagdish Chandra Sharma the Apex Court observed that the punishment of termination of service awarded to a workman found guilty of breach of discipline cannot be said to be disproportionate or harsh.
18. In the matter of Transport Corporation itself where the workman is found guilty in financial matters, the Apex Court found that the punishment of dismissal or termination is not disproportionate since such misconduct should not be dealt with leniently. In R.M. U.P.S.R. T.C. Etawah and Ors. v. Hoti Lal and Ors. it was held:
It is not only the amount involved, but the mental set-up, 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 post of trustworthiness and integrity are inbuilt requirements of functioning, it would not be proper to dealt with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals 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 exceptionable. Judge in that background, conclusions of the Division Bench of the High Court are not proper.
19. In the case in hand the duty of the workman concerned was to protect the revenue of the Corporation by checking that no passenger is travelling in the bus without ticket and to issue tickets' by collecting fair from the person travelling in the bus without ticket. He admittedly failed in his duty when out of 50 passengers, 24 were found travelling without ticket. The workman-conductor of the bus engaged in financial transactions, was acting in fiduciary capacity and was expected to show highest degree of integrity and trust-worthiness. He failed to satisfy the same. In the circumstances merely for the reasons that in the past no such misconduct of the workman came to the light of the employer, it could not have been a ground to interfere with the punishment, since the charge found proved against the workman itself is extremely grave and serious. The observations of the Apex Court in Hoti Lal (Supra) are fully applicable to the facts of this case.
20. This Court is aware of the circumstance that during the pendency of the dispute the workman died and his widow was pursuing the matter. This aspect has also influenced the approach of the Labour Court in interfering with the quantum of punishment. However, In my view this approach would show displaced sympathy for the reasons that the employer, if found his workman, to be guilty of such a grave and serious misconduct, and decide to impose punishment of removal, for any subsequent event, it is not open to the Labour Court or the Tribunal to interfere with any such discretion exercised by the employer since it cannot be said that the discretion as exercised by the employer at the time of dismissal was not justified.
21. In my view therefore, the Labour Court erred in law in setting aside the punishment of removal and by directing for payment of 1/4th of arrears of salary to the respondent No. 1.
22. In the result, the writ petition succeeds and is allowed. The award impugned in the writ petition is set-aside to the extent it interferes with the punishment of removal imposed upon the workman concerned and direct for payment of 1/4th arrears of salary to the respondent. The punishment of removal as imposed upon the workman is up-held.
23. Parties shall bear their own costs.