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2001 DIGILAW 459 (KAR)

N. S. PATELAPPA v. MANAGING DIRECTOR, BMTC

2001-06-19

R.GURURAJAN

body2001
GURURAJAN, J. ( 1 ) THIS petition is directed against the award in I. D. No. 1/99 dated 30. 3. 2001. ( 2 ) THE petitioner is an employee of respondent-Corporation. He was issued with a charge sheet on 26. 11. 1998. In the charge sheet it is stated that the vehicle bearing No. KA-01-F-143 is plying in route No. 286/1 from Jakkur to city market. The vehicle came to be checked by the Checking squad at Hebbal stage, point No. 4. An offence memo was issued stating that out of 55 passengers travelling in the bus, the petitioner failed to issue tickets to 10 passengers travelling from Byatarayanapura to Hebbal, despite collection of requisite charges from each one of the passengers at the boarding place itself. The penalty was imposed by the Corporation. The actual amount was collected by the Inspector from the Conductor. The petitioner-Conductor thereafter paid the penalty collection amount from the passenger. Later an enquiry was conducted and the enquiry officer based on the materials placed before him, found the petitioner guilty. The Corporation accepting the report terminated the service of the petitioner resulting in the petitioner filing a petition under section 104 (A) of the ID Act before the Labour Court, Bangalore, (for short Act) in ID No. 1/99. The said petition was contested. Evidence was recorded. The Labour Court upheld the enquiry and passed an award dismissing the petition filed by the petitioner. It is this award that is challenged before me. ( 3 ) MR. Hanumantha Raya, learned Counsel has raised several contentions in respect of his prayer. According to him, his client has not committed any mis-conduct what so ever. He also attacks the findings as perverse in the sense that the findings are not based on evidence. He further contends that the penalty imposed is harsh. He invites my attention to the evidence on record. After hearing the counsel at great length, I have perused the impugned award. ( 4 ) THE Labour Court heard the parties with regard to the validity of the enquiry. The petitioner has conceded the fairness of the enquiry. In these circumstances, the Labour Court framed the following points for its consideration:1. Whether the first party proves that the finding of the E. O. is perverse? 2. ( 4 ) THE Labour Court heard the parties with regard to the validity of the enquiry. The petitioner has conceded the fairness of the enquiry. In these circumstances, the Labour Court framed the following points for its consideration:1. Whether the first party proves that the finding of the E. O. is perverse? 2. Whether the punishment imposed by the second party is shockingly disproportionate to the alleged misconduct?it answered both the points against the petitioner. The Labour court has noticed the evidence placed on record and has come to a conclusion that the finding cannot be said to be a finding based on no evidence. The Labour Court refers to Ex. M1, the Conductor's pay bill, Ex. M5, offence memo and Ex. M3, statement of ticketless passengers. The Labour Court also refers to the un-disputed signature of the petitioner on Ex. M3. The penalty receipt is at Ex. M4 which shows the recovery of Rs. 175/- from one Mr. Yellappa. In the light of these materials, the labour Court rules that the finding is supported by evidence on record. The facts of the case in the light of Ex. M1, M3, M4 and M5 in the light of materials on record cannot be said to be no evidence as contended by the Counsel for the petitioner. The Courts can categorize a finding as perverse only when that finding suffered from no evidence. In this case, the material placed before the Enquiry Officer Warrant a finding against the petitioner. That finding is accepted by the Labour Court after applying its mind to the contention urged before it. I am unable to agree with the contention of the Counsel for the petitioner that no case is made out by the Corporation. ( 5 ) THE learned Counsel secondly contends that there is force on the petitioner with regard to the penalty payment with regard to ticketless passengers. There is no factual foundation for this. Even otherwise the payment of penalty is a consequential action. More over, as ! mentioned earlier, there is no evidence available on record with regard to an alleged force on him. Therefore, this contention is also not available to the petitioner in the case on hand. There is no factual foundation for this. Even otherwise the payment of penalty is a consequential action. More over, as ! mentioned earlier, there is no evidence available on record with regard to an alleged force on him. Therefore, this contention is also not available to the petitioner in the case on hand. An overall view of the matter in the light of the documentary evidence makes it clear that the petitioner cannot be said to be not guilty of the charges levelled against him. ( 6 ) IN so far as punishment is concerned, the Labour Court has noticed that the petitioner is only a probationer and even during probationary period, he has 30 default cases in addition to proved mis-conduct to his credit. In these circumstances, the Labour Court has ruled that no case is made out for any lineancy in the matter. This finding in my view also is perfectly justified. The respondent is a Public Corporation. It survives on the Revenue collected by the conductor from the passengers. Any lapse on the part of the conductor would drain out the Revenue collection of the Corporation. Therefore on the facts of this case, no sympathy can be shown to the petitioner on the facts of this case. ( 7 ) IN this connection, I may refer to a Judgment of Supreme Court in Civil Appeal No. 784/2001 dated 22. 1. 2001. The Supreme court while considering an identical case with regard to non-issue of tickets even after collection, has noticed as under"on the facts as found by the labour Court and the High court, it is evident that there was a short-charging of the fare by the respondent from as many as 35 passengers. We are informed that the respondent had been in service as a conductor for nearly 22 years. It is difficult to believe that he did not know what was the correct fare which was to be charged. Furthermore, the appellant had during the disciplinary proceedings taken into account the fact that the respondent had been found guilty for as many as 36 times on different dates. Be that as it may, the principle of res ipsa loquitur, namely, the facts speak for themselves, is clearly applicable in the instant case. Charging 50 paise per ticket less from as many as 35 passengers could only be to get financial benefit by the Conductor. Be that as it may, the principle of res ipsa loquitur, namely, the facts speak for themselves, is clearly applicable in the instant case. Charging 50 paise per ticket less from as many as 35 passengers could only be to get financial benefit by the Conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a Conductor because such action or inaction of his is bound to result in financial loss to the appellant- corporation. 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 in 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. " ( 8 ) THE Supreme Court has categorically ruled that any reinstatement in a case like this would be a misplaced sympathy in the above referred order. The Supreme Court has also noticed that it is the responsibility of the bus conductor to collect the fare from the passengers and deposit the same with the Company. They act in a fiduciary capacity as it is a case of mis conduct. If knowingly they do not collect the fare in the light of the Judgment of the supreme Court, i am clear in my view that no error is committed by labour Court in rejecting the petition filed by the petitioner on the facts placed before the Labour Court. ( 9 ) THE Counsel for the petitioner relies on three Judgment sreported in B. NAGARAJU vs MANAGEMENT, THE MANAGEMENT of SHRI GANAPATI BUS SERVICE, THIRUNELVELU vs presiding OFFICER, LABOUR COURT AND OTHERS and state OF BIHAR vs CHANDRA BHUSHAN SINGH AND OTHERS. ( 10 ) I. L. R. 1993 Kar 1008 is a case with regard to the imposition of penalty. ( 10 ) I. L. R. 1993 Kar 1008 is a case with regard to the imposition of penalty. The said Judgment states that the punishment is to commensure with the mis-conduct and past bad record has to be considered with an opportunity to meet by the petitioner. In the case on hand, the respondents have filed Ex. M16. , a past record of the petitioner, The same has been taken note of by the Enquiry Officer. The petitioner did have an opportunity with regard to past record. Before the Labour Court, no contention is urged with regard to any denial of an opportunity with regard to past mis-conduct. Even in the petition filed before this Court, no ground is taken regarding denial of any opportunity with reference to past record. In these circumstances, I am of the view that the Division Bench Judgment is not applicable to this case, particularly in the light of Ex. M16, which has been taken note of by the Enquiry Office and the Labour court. ( 11 ) THE second Judgment is equally not applicable to the facts of this case. In this case, the Labour Court ruled the dismissal was dis-proportionate in the light of the loss quantified to Rs. 4. 80. In the case on hand, the amount is much more than the amount involved in this case. In the present case, they have also recovered penalty as I see from the proceedings. Moreover, in the case on hand, the petitioner is a probationer and his past conduct is very had. Therefore, the said Judgment cannot be made applicable with reference to the material placed in the case before the Labour Court as well as before this Court. ( 12 ) THE third Judgment is equally not applicable to the facts of this case. That was a case with regard to an acquittal of charges of rashness by Criminal Court. In these circumstances, the Court ruled in that case that the punishment is unsustainable. ( 13 ) ALL the three Judgments, in my view are not applicable in the light of the facts placed before the Labour Court as well as in this court. ( 14 ) THE Counsel has placed a Circular dated 30. 3. 2001. This Circular is filed for the first time before me. ( 13 ) ALL the three Judgments, in my view are not applicable in the light of the facts placed before the Labour Court as well as in this court. ( 14 ) THE Counsel has placed a Circular dated 30. 3. 2001. This Circular is filed for the first time before me. There is no reference made in the petition or in the grounds with regard to the circular. It is not safe to rely on such Circular to give relief to workman who has found to be guilty by the Labour Court. ( 15 ) IN the result, this petition stands rejected at the admission stage itself --- *** --- .