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Gujarat High Court · body

2010 DIGILAW 267 (GUJ)

Rajabhai R. Gadhavi v. Divisional Controller

2010-05-14

H.K.RATHOD

body2010
JUDGMENT : H.K. Rathod, J. Heard learned Advocate Mr. AV Nair for learned Advocate Mr. HP Dave for petitioner. Petitioner - Conductor has challenged award passed by Labour Court, Ahmedabad in Reference No. 752 of 2007 dated 31st July, 2009 Exh. 10. Labour Court, Ahmedabad has dismissed the reference. Learned Advocate Mr.Nair for petitioner has raised contention before this Court that the bus of petitioner was checked by checking party on 3rd November, 2002. On 7.11.2002, report was submitted against petitioner in respect to his alleged misconduct of non issuance of tickets after collecting fare. ON 4.12.2002, charge sheet was issued against petitioner. Reply was submitted to charge sheet on 24.3.2003. Thereafter, inquiry was conducted on 5th May, 2003 and after completion of inquiry, dismissal order was passed against petitioner by competent authority on 27.4.2004. Thereafter, first appeal was dismissed by appellate authority on 31.1.2006 and second appeal was dismissed by second appellate authority on 23.8.2006 and thereafter, dispute was raised by petitioner which was referred to labour court for adjudication on 14.5.2007. He submitted that the labour court has committed gross error in not considering the question that the departmental inquiry which was conducted against workman is contrary to the principles of natural justice and also against the Discipline and Appeal Procedure of ST Corporation. He submitted that in departmental inquiry, there was no sufficient evidence led by reporter for proving misconduct against petitioner. He submitted that the traffic cash of petitioner conductor was not checked by checking staff. For that, he relied upon page 33 and submitted that the workman was examined in method of question and answer by competent authority and inquiry officer has acted as Prosecutor and Judge both and therefore, it amounts to denial of reasonable opportunity to petitioner which has caused great prejudice to petitioner and, therefore, labour court has committed gross error in rejecting said reference. 2. I have considered submissions made by learned advocate Mr. Nair for petitioner. I have also perused award passed by labour court. 2. I have considered submissions made by learned advocate Mr. Nair for petitioner. I have also perused award passed by labour court. Looking to the facts as emerging from record, as per charge sheet issued to petitioner, it was alleged that while the petitioner was on duty on 3.11.2002 on route from Ahmedabad to Jhalod, his bus was checked near Kathlal Cross Roads wherein it was found that from one group of four passengers travelling from Ahmedabad to Balasinor, an amount of Rs.150.00 was recovered by him from said group instead of Rs.140.00 at the rate of Rs.35.00 per ticket and tickets were not issued upto checking point and unpunched tickets were seized and an amount of Rs.10.00 was refunded back to passengers. In connection with the said serious misconduct, he was served with charge sheet on 4.12.2002 and departmental inquiry was conducted against him in accordance with the principles of natural justice and at the end of inquiry, misconduct was proved against him and, therefore, petitioner was served with show cause notice along with findings on 28.1.2004 and as the explanation given by petitioner to said show cause notice was not found satisfactory, he was ordered to be dismissed by order dated 27.4.2004. Both departmental appeals preferred by petitioner were dismissed and, thereafter, dispute was raised by petitioner which was referred to labour court for adjudication wherein labour court rejected reference by passing impugned award which is under challenge in this petition before this court. 3. Labour Court has considered statement of claim Exh. 4 and written statement filed by corporation at Exh. 6. Documents were produced by corporation vide list Exh. 7 and papers of departmental inquiry have been produced on record. It is necessary to note that before labour court, vide Exh. 8, purshis was filed by advocate for petitioner wherein advocate for petitioner has admitted legality and validity of departmental inquiry but raised contention in respect to findings which are perverse. In light of this purshis, whatever contentions raised by learned advocate Mr.Nair for petitioner before this court challenging legality and validity of departmental inquiry and role of inquiry officer as prosecutor and judge etc. cannot be entertained by this court because before labour court, by filing purshis Exh. 8, challenge as regards legality and validity of departmental inquiry was given up by petitioner and not challenged before labour court. cannot be entertained by this court because before labour court, by filing purshis Exh. 8, challenge as regards legality and validity of departmental inquiry was given up by petitioner and not challenged before labour court. The petitioner is not entitled to raise such contention for the first time before this Court. Thereafter, labour court has considered finding given by inquiry officer and also considered reply given by petitioner against show cause notice and thereafter, labour court has examined the matter on the basis of decision which has been relied upon by petitioner's advocate before labour court. Labour Court has given detailed reasons in support of its conclusion. Labour Court has also considered that such misconduct of recovering fare and not to issue ticket being dishonesty and misappropriation of revenue of corporation by petitioner conductor and therefore, corporation has lost confidence in petitioner conductor, which is a serious misconduct. Labour Court has also considered default card where previously petitioner was punished by corporation. Therefore, considering all these facts, labour court has come to conclusion that this is not a case in which labour court can exercise discretionary powers in favour of petitioner who has lost confidence of corporation. Labour Court has also considered that looking to gravity of misconduct and default card of petitioner, punishment which has been imposed upon petitioner cannot be considered to be disproportionate or unjust looking to the serious misconduct which has been proved against the petitioner. Labour Court has considered decision of apex court in case of Karnataka State Road Transport Corporation v. B.S. Hullikutti reported in AIR 2001 (88) FLR 912 (SC) where following observations have been made by apex court: "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 the responsibility of the bus conductor to collect the correct fare from the passenger and deposit the same with the company They act in 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." 4. It is the responsibility of the bus conductor to collect the correct fare from the passenger and deposit the same with the company They act in 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." 4. In view of aforesaid observations made by labour court considering gravity of misconduct of recovering fare and not issuing tickets of Rs.140.00 upto checking point, this being serious misconduct proved against petitioner, labour court has rightly rejected reference by not exercising discretionary powers in favour of petitioner. As regards the contention raised by learned Advocate Mr. Nair that the traffic cash of conductor was not checked, such contention cannot be accepted because it was not necessary to be checked by checking staff as spot statement which was given by the petitioner on the spot, petitioner has admitted misconduct before checking staff and accordingly spot statement was recorded by checking staff that at the time of checking, petitioner conductor recovered fare from passengers and upto checking point, tickets were not issued. In view of that, traffic cash of conductor was not required to be checked by checking staff. Therefore, that contention raised by learned Advocate Mr.Nair cannot be accepted and same is, therefore rejected. Similar view to that effect has been taken by apex court in number of decisions reported in AIR 2007 SC 2987, AIR 2006 page 2208, AIR 2006 SC page 2730, AIR 2006 SC page 3227 and recent decision in case of Divisional Manager, Rajasthan SRTC v. Kamruddin, reported in 2009 (122) FLR 671 (SC). In said decision, apex court considered case of a bus conductor found to be carrying passengers without ticket. Relevant observations made by apex court in paragraph 9, 10 and 11 are quoted as under: "9. It is not a case where the misconduct against the respondent had not been proved. It is also not a case where the domestic enquiry was found to have been conducted in an unfair manner or contrary to the principles of natural justice. The services of the respondent had been terminated while the period of probation was not over. As a conductor, his performance during the period of probation was found to be unsatisfactory. It is also not a case where the domestic enquiry was found to have been conducted in an unfair manner or contrary to the principles of natural justice. The services of the respondent had been terminated while the period of probation was not over. As a conductor, his performance during the period of probation was found to be unsatisfactory. It is not in dispute that a disciplinary proceeding was initiated against him while he was found to have committed similar misconduct for the fifth time. It is also beyond any doubt or dispute that he had also been served with a letter of warning. 10. The power of Labour Court and/or Industrial Tribunal in terms of Section 11A of the Industrial Disputes Act, 1947 to interfere with the quantum of punishment although cannot be denied, but it is also a well settled principle of law that the said power should be exercised judiciously. The Labour Court relied upon the decision of this Court in Bhagyo Mal (supra) wherein the High Court allowed back wages to the workman concerned. This Court in the facts and circumstances of the case found the order of the High Court to be self-contradictory, stating: "When the High Court had found that the respondent - employee deserved punishment on account of his misconduct, the High Court could not have rewarded the employee by granting him the back wages particularly when the Tribunal had converted the order of dismissal into that of the stoppage of two increments with cumulative effect. We, therefore, allow the appeal and set aside that part of the order of the High Court whereby the respondent - employee has been given the benefit of back wages. The rest of the order is maintained." We fail to understand as to how the said decision advanced the case of the respondent. 11. The question with regard to imposition of appropriate punishment upon a conductor of a bus belonging to a corporation constituted under the Road Transport Corporation Act, 1950 came up for consideration before this Court in Karnataka State Road Transport Corporation v. B.S. Hullikatti [ (2001) 88 FLR 912 (SC)], wherein it was held: "5. 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. 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. 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. 6.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." A three judge Bench of this Court in Regional Manager, RSRTC v. Ghanshyam Sharma [ (2002) 92 FLR 12 (SC)], reiterated the said principle, stating: "4. This Court in Karnataka SRTC v. B.S. Hullikatti has held that in such cases where the bus conductors carry passengers without ticket or issue tickets at a less 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." 5. Recently, similar view has been taken by Madras High Court in case of V.Periyakaruppan v. Tamil Nadu State Transport Corporation And Another, reported in 2010 Lab IC 1509, Madras High Court has observed as under in para 12 to 22 as under: "12. In view of the above, this Court has no reason to disbelieve the evidence of the checking inspector. Though it is alleged that the conductor being an office-bearer of the union and on an earlier occasion he had approached this Court and obtained interim stay on the ground that he was victimized, there is nothing on the record excepting the statement of the conductor to prove that allegation. Further the evidence does not indicate that the checking inspector with a malafide intention has acted only to victimise the conductor. Hence the challenge to the disciplinary proceedings cannot be accepted on the ground of victimization. 13. This leads us to the next question as to whether the Labour Court would be justified in exercising its discretion under Section 11-A of the Industrial Disputes Act, 1947 to modify the punishment of dismissal imposed by the Corporation. While considering the scope of judicial review in respect of a punishment imposed by the disciplinary authority, it has been now well settled by the judgment of the Supreme Court in Government of India v. George Philip, AIR 2007 SC 705 , where the Supreme Court, in paragraph-9 of the judgment, has held as follows:- "9. While considering the scope of judicial review in respect of a punishment imposed by the disciplinary authority, it has been now well settled by the judgment of the Supreme Court in Government of India v. George Philip, AIR 2007 SC 705 , where the Supreme Court, in paragraph-9 of the judgment, has held as follows:- "9. It is trite that the Tribunal or the High Court exercising jurisdiction under Article 226 of the Constitution are not hearing an appeal against the decision of the disciplinary authority imposing punishment upon the delinquent employee. The jurisdiction exercised by the Tribunal or the High Court is a limited one and while exercising the power of judicial review, they cannot set aside the punishment altogether or impose some other penalty unless they find that there has been a substantial non-compliance of the rules of procedure or a gross violation of rules of natural justice which has caused prejudice to the employee and has resulted in miscarriage of justice or the punishment is shockingly disproportionate to the gravamen of the charge." In fact in the above judgment, the Supreme Court had quoted with approval the following judgments in B.C.Chaturvedi v. Union of India, (1996) 72 FLR 316 (SC); Om Kumar v. Union of India, (2001) 2 SCC 386 and Damoh Panna Sagar Rural Regional Bank v. Munna Lal Jain, (2005) 104 FLR 291 (SC). 14. In U.P.State Road Transport Corporation v. Mohan Lal Gupta and others, (2000) 87 FLR 231 (SC), the Supreme Court has held that the question of award of any minor punishment in the facts of that case does not and cannot arise and neither Labour Court could alter punishment of termination having regard to its assessment of facts and contentions as regards validity of the inquiry proceedings. The employee has been found guilty of misappropriation and in such an event, if the appellant Corporation loses its confidence vis-a-vis the employees, it will neither be proper nor fair on the part of the Court to substitute the findings and confidence of the employer with that of its own by allowing reinstatement. The misconduct stands proved and in such a situation by reason of gravity of the offence, the Labour Court cannot exercise its discretion and alter the punishment. The misconduct stands proved and in such a situation by reason of gravity of the offence, the Labour Court cannot exercise its discretion and alter the punishment. In Bharat Heavy Electricals Limited v. M.Chandrasekhar Reddy, (2005) 104 FLR 806 (SC), the Supreme Court, while quoting the above judgment with approval, has held that the Labour Court has no unlimited jurisdiction under Section 11-A. The Labour Court has no power to exercise the discretion vested in it unless the same is based on justifiable grounds supported by acceptable materials and reasons thereof. 15. In South Indian Cashew Factories Workers' Union v. Kerala State Cashew Development Corporation Ltd., and others, (2006) 5 SCC 201 , the Supreme Court has held that if the enquiry is fair and proper then, in the absence of any allegations of victimisation or unfair labour practice, the Labour Court has no power to interfere with the punishment imposed. 16. A careful reading of the above judgments of the Supreme Court would go to show that in exercise of the power under Section 11-A, the Labour Court could not interfere with the imposition of punishment, unless the punishment is shockingly disproportionate to the gravamen of the charges. In fact in Damoh Panna Sagar Rural Regional Bank case (supra), the Supreme Court has observed that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic and moral standards. The Supreme Court has also held in that judgment that the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator and the scope of judicial review is limited to the deficiency in decision-making process and not the decision as such. 17. The Supreme Court in Regional Manager, RSRTC v. Ghanshyam Sharma, (2002) 92 FLR 12 (SC) has held that 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. On the facts of that case, the Supreme Court held that the Labour Court was not justified in interfering with the punishment of dismissal and should not have ordered reinstatement with continuity of service, but without backwages. 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. 18. In this context, we may also refer to the following judgments of the Supreme Court. In Mahindra and Mahindra Ltd., v. N.B.Narawade, (2005) 104 FLR 1218 (SC), the Supreme Court, while considering the discretion of the Labour Court under Section 11-A to interfere with the punishment, has held that the said discretion is certainly not unlimited, but could be exercised only in the following circumstances, namely, (i) when the punishment being so disproportionate to gravity of misconduct so as to disturb conscience of court, or (ii) existence of any mitigating circumstances which require reduction of the sentence, or (iii) past conduct of workman which may persuade Labour Court to reduce punishment. In M.P.Electricity Board v. Jagdish Chandra Sharma, (2005) 105 FLR 155 (SC), the Supreme Court, while quoting with approval the judgment in Mahindra and Mahindra Ltd. case, has held that the Court/Tribunal cannot interfere with quantum of punishment based on irrational or extraneous factors and certainly not on a compassionate ground and the said jurisdiction is not to be exercised capriciously or arbitrarily. 19. Further, a learned single Judge of this Court in the judgment in Management, Dheeran Chinnamalai Transport Corporation Ltd., v. Presiding Officer, Labour Court, 2002 (95) FLR 1031, has held that in the absence of adequate and acceptable reasons, the Labour Court has no power to reduce the punishment. In fact in the said judgment, the learned single Judge had quoted a Division Bench judgment of this Court in Sri Gopalakrishna Mill P.Ltd. v. Labour Court, 1980 (1) LLJ 425 , where the Division Bench held as follows:- "When a workman is charged for a serious misconduct as in this case, one cannotgo by the number of years of service put in by the workman or by the workman or by his age or by his married or unmarried status. If an unmarried worker is entitled to seek lenience in the matter of punishment as has been held by the Labour Court, a worker who is married and has children to support is equally entitled to claim leniency. This will lead to a situation that all workmen whether married or unmarried can claim leniency." 20. Another Division Bench of this Court, in which I was a party, in Pandiyan Roadways Corporation Ltd. v. Employee P.Murugesan, (2002) 3 LLN 570, held that misconduct amounting to misappropriation of ticket fare cannot be considered as minor misconduct and in that event power exercised by the Labour Court to modify the punishment, without acceptable reasons, cannot be sustained. The above judgment was quoted with approval by another Division Bench, in which also I was a party, in N. Mylsamy, Pollachi and another v. Cheran Transport Corporation Limited and another, 2004 (101) FLR 963 (Mad.)., where the Division Bench held that the exercise of discretion by the Labour Court is not automatic, but should be exercised with sufficient reasons. 21. Keeping the above catena of judgments in mind, the facts of the present case should be looked into. The proved misconduct is that the conductor, having collected the fare of Rs.21.70, did not issue ticket to the passenger and thereby misappropriated the sum of Rs.21.70. The other charges, namely, refusing to sign in the tickets issued to the passenger by the checking inspectors as well as refusing to sign in the inspection report as well as the statement of the passenger; refusing to receive the report of the checking inspectors and also instructing the driver not to start the bus until his command, have also been found to be proved. For the above proved misconduct, conductor deserves the punishment of dismissal. Such an order of punishment imposed by the Corporation should not have been interfered by the Labour Court in exercise of its discretionary power. I find absolutely no reason for the Labour Court to modify the punishment. In this context, we may also refer to the past record of the conductor, which has been taken note of by the Corporation to impose the punishment of dismissal on the conductor. I find absolutely no reason for the Labour Court to modify the punishment. In this context, we may also refer to the past record of the conductor, which has been taken note of by the Corporation to impose the punishment of dismissal on the conductor. In fact the conductor throughout his service in the Corporation had committed various misconducts and particularly in respect of the incidents that had taken place between the periods 12.5.77 and 4.6.94, the conductor had been proceeded with departmental proceedings and was either imposed with the punishment of fine, censure or warning. To name a few, he was imposed with the punishment of fine in respect of an incident that took place on 28.6.77 for not issuing the ticket to a passenger in the bus bearing Regn.No.TMN 5245. He was severely warned for allowing his friends to travel in the bus on 9.10.77 without getting the fare for the journey. He was again warned for the incident on 18.7.79 for non-issuance of tickets to three passengers. He was again warned for the incident on 22.5.80 for allowing a passenger to travel beyond the place for which the fare was collected. He was again inflicted with censure for the incidents between 12.7.81 and 16.11.81 for showing deficit amounts. He was again warned for the incident on 16.5.82 for having recorded lesser collection of fare in the invoice book, even though he had collected full fare. He was again inflicted with censure for the incident on 17.11.83 for not collecting the fare in the bus bearing Regn.No.TML 6410. He was again imposed with the punishment of stoppage of increment for a period of one year without cumulative effect for the incident on 2.9.90 for making corrections in the value of tickets and has misappropriated a sum of Rs.29.20. He was also suspended for a period of two days for the incident on 17.2.87 at Palani Bus stand for beating the driver. 22. For the above proved misconduct, this Court is of the considered opinion that the punishment of dismissal is not in any way disproportionate to the charges levelled against the conductor, particularly taking into account the past record of service. As has been rightly pointed out by the learned counsel for the Corporation, there cannot be any misplaced sympathy in matters like this." 6. As has been rightly pointed out by the learned counsel for the Corporation, there cannot be any misplaced sympathy in matters like this." 6. In view of facts of this case as considered by this court and also in view of aforesaid decisions, contentions raised by learned Advocate Mr. Nair for petitioner cannot be accepted. Same are, therefore, rejected. According to my opinion, labour court has rightly not exercised powers under section 11-A of ID Act, 1947 because punishment of dismissal in such serious misconduct cannot be considered to be disproportionate or unjust and harsh and, therefore, there is no error committed by labour court which would require interference of this Court while exercising powers under Article 227 of Constitution of India. Hence there is no substance in this petition and same is, therefore, dismissed.