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2017 DIGILAW 1091 (ALL)

U. P. S. R. T. C. v. Ramesh Kumar Gupta

2017-04-24

SAUMITRA DAYAL SINGH

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JUDGMENT : Saumitra Dayal Singh, J. This writ petition has been filed by the U.P. State Road Transport Corporation (hereinafter the management) against the award of the Labour Court, Agra dated 24.01.2012, in Adjudication Case No. 48 of 2002. By that award the Labour Court has granted relief to the workman, a bus conductor - of reinstatement with continuity of service together with 50% back wages and costs Rs. 2,500/-. 2. The respondent-workman was terminated from service on 17.06.1999. The relief of reinstatement was granted by the award dated 24.01.2012. In the instant writ petition, under interim order dated 19.09.2012, the operation of the award dated 24.01.2012 was stayed subject to the petitioner depositing 50% of the amount of back wages awarded. Out of the amount so deposited, the respondent workman was allowed to withdraw half of that amount and the remaining amount has remained invested in a security in a Nationalized Bank. 3. Also, during the pendency of this writ petition, the workman attained the age of superannuation. Therefore, today, the relief of reinstatement cannot be granted. The only issue requiring consideration by the Court is with regard to award of back-wages, 25% of which has already been paid to the respondent workman under the interim order of this Court. 4. Briefly, the facts are, respondent workman - Ramesh Chandra Goyal had initially been appointed by the petitioner Corporation in the year 1989, on the post of driver. Later, he was called to work as a conductor. On 28.10.1993 while the workman was thus discharging duty as conductor on a bus plying on Agra- Bharatpur route, the same was subjected to surprise check by the Traffic Superintendent, near its destination, Bharatpur. 5. According to the management, during that surprise check, it was found, the workman had closed the way-bill at Kirawali (a station/stop - three stops before the point/place of inspection), without recording details of nineteen tickets sold by him. This included two tickets of passengers who boarded the bus from Kirawali to Bharatpur; thirteen passengers who boarded the bus thereafter from Achhnera for Bharatpur and; four passengers who boarded the bus from Dachhavadi for Bharatpur. 6. Thus, according to the management, the workman had sold and collected money from nineteen passengers with intent to misappropriate that amount by having not recorded the details of those tickets in the way-bill. 6. Thus, according to the management, the workman had sold and collected money from nineteen passengers with intent to misappropriate that amount by having not recorded the details of those tickets in the way-bill. He would have taken back the tickets at the end of the journey and sold them again, on another journey of that bus, on that route. 7. Also, it was further alleged that there were found travelling on the bus, nine ticket-less travellers, from whom the workman had charged the fare but not issued tickets. It was thus again the case of the management that the workman had acted with intent to misappropriate the fare money. The statements of few passengers are also said to have been recorded in support of above allegations. 8. Occasioned by the above event, initially a report was submitted by one Sri Bhushan Kumar who reported the alleged misconduct of the respondent-workman. Thereupon, a preliminary inquiry is said to have been conducted in the matter resulting in a charge sheet dated 30.01.1996 issued to the respondent workman followed by a domestic inquiry. 9. The domestic inquiry thus conducted by the management has been found to be vitiated by Labour Court vide its order dated 19.12.2007, which order has not been challenged by the management, either independently or by means of the present writ petition. No argument has been addressed to doubt the correctness of the order of the Labour Court dated 19.12.2007. 10. However, upon the domestic inquiry being held vitiated, fresh evidence was led by the management before the Labour Court to bring home the charges. It is upon consideration of the pleadings and such evidence led before the Labour Court that the award is now to be tested. 11. Before the Labour Court, on behalf of the management, Sri Ravindra Singh, Service Manager of the Corporation was examined. He disclosed himself to be part of the inspection team that conducted the surprise check on the bus in question on 28.10.1993, near Bharatpur. He categorically stated to have found during inspection, nineteen passengers to whom tickets had been issued by the respondent workman, details of which had not been recorded in the way-bill and nine passengers to whom tickets had not been issued, but fare collected. 12. He categorically stated to have found during inspection, nineteen passengers to whom tickets had been issued by the respondent workman, details of which had not been recorded in the way-bill and nine passengers to whom tickets had not been issued, but fare collected. 12. Also, he admitted that upon such inspection, the inspecting team made entries of nineteen tickets (as aforesaid) in the way-bill and issued tickets to the nine ticket-less travellers on the bus at that time and made entries in the way-bill. He further stated that according to the statements of the passengers recorded during the inspection, it had been concluded that the respondent workman had already received money from the passengers whose entries had not been made in the way-bill. 13. From the record, it appears that the workman did not doubt the correctness of statement made by Ravindra Singh namely, nineteen tickets had not been recorded in the way-bill and tickets had not been issued to other nine passengers found travelling on the bus. 14. In response, the respondent-workman pleaded he had only been appointed a driver by the Corporation and had not been trained to work on the post of conductor. It was further his case that prior to 28.10.1993, the date of incident, he had been driving staff car of the officers of the Corporation. According to him, Sri Bhushan Kumar filled up and made entries in the way-bill according to his own wish and that the entire case set up against the workman was false and fabricated. 15. In the course of leading evidence while the workman stated he had never been trained to work as a conductor and he had not been given any order to work on that post. However, during his cross examination, the workman admitted to have never objected to work as conductor. 16. On merits of the charges, the workman stated, he had allowed some passengers to board from Bachhawani and was in the process of preparing their tickets when the inspection team snatched the way-bill from him and thus prevented the respondent-workman from completing the entries in the way-bill. Also, he claimed, therefore, he had not been able to record the sale of tickets to nineteen passengers in the way-bill and that he had not collected any money from the other passengers to whom tickets had not been issued. 17. Also, he claimed, therefore, he had not been able to record the sale of tickets to nineteen passengers in the way-bill and that he had not collected any money from the other passengers to whom tickets had not been issued. 17. It is seen, in the initial part of its award while evaluating the evidence, the Labour Court has drifted and delved into conduct of the domestic inquiry proceedings. That discussion in the award, is in my view, irrelevant inasmuch as the Labour Court by its earlier order dated 19.12.2007 held domestic inquiry to be vitiated. Therefore, the evidence and material forming part of the said domestic inquiry could neither be "fresh material" or "material on record" for the purpose of Section 6 (2-A) of the U.P. Industrial Disputes Act, 1947 (which is pari materia to section 11-A of the Industrial Disputes Act, 1947) as held by the Supreme Court in the case of Neeta Kaplish v. Presiding Officer, Labour Court (1999) 1 SCC 517 in respect of section 11-A of the Central Act. The discussion of that evidence and its effect is therefore irrelevant. 18. From the evidence led before it, the Labour Court found the workman had been appointed on the post of driver and that he had been made to work on the post of conductor without giving him adequate training. Thereafter, solely because the workman had not been held guilty on any earlier occasion, the Labour Court rushed to a finding, without adverting to any other evidence, that the workman had not deliberately caused financial loss to the petitioner corporation. 19. Having thus recorded its finding, the Labour Court has interfered with the quantum of punishment and concluded, the carelessness/negligence of the respondent workman did not warrant punishment of termination and that the said punishment is excessive. However, the Labour Court has not exonerated the workman but has, merely observed that the punishment is excessive. 20. On the above finding and observation the Labour Court has therefore, set aside the termination and granted relief of reinstatement with continuity of service and 50% back wages besides awarding costs of Rs. 2,500/-. 21. Heard Sri U.S.Singh Visen, learned counsel for the petitioner and Sri Surya Prakash Singh, learned counsel for the respondents-workman. 22. 20. On the above finding and observation the Labour Court has therefore, set aside the termination and granted relief of reinstatement with continuity of service and 50% back wages besides awarding costs of Rs. 2,500/-. 21. Heard Sri U.S.Singh Visen, learned counsel for the petitioner and Sri Surya Prakash Singh, learned counsel for the respondents-workman. 22. Sri Visen, learned counsel for the petitioner, perhaps being influenced by the approach of the Labour Court, sought to rely on the reply and stand taken by the respondent-workman during the course of domestic inquiry to establish that the workman was working as a conductor without any objection and therefore, he could not set up his defence of lack of training to work as conductor. 23. The argument so made is wholly misconceived in view of the clear declaration of law made in the case of Neeta Kaplish (supra), wherein the Supreme Court has held as below :- "27. The record pertaining to the domestic enquiry would not constitute "fresh evidence" as those proceedings have already been found by the Labour Court to be defective. Such record would also not constitute "material on record", as contended by the counsel for the respondent, within the meaning of Section 11-A as the enquiry proceedings on being found to be bad, have to be ignored altogether. The proceedings of the domestic enquiry could be, and were in fact, relied upon by the Management for the limited purpose of showing at the preliminary stage that the action taken against the appellant was just and proper and that a full opportunity of hearing was given to her in consonance with the principles of natural justice. This contention has not been accepted by the Labour Court and the enquiry has been held to be bad. In view of the nature of objections raised by the appellant, the record of enquiry held by the Management ceased to be "material on record" within the meaning of Section 11-A of the Act and the only course open to the Management was to justify its action by leading fresh evidence as required by the Labour Court. If such evidence has not been led, the Management has to suffer the consequences." 24. In the instant case, admittedly, upon the domestic enquiry being held vitiated, by the Labour Court, management did lead evidence before the Labour Court to bring home the charge. If such evidence has not been led, the Management has to suffer the consequences." 24. In the instant case, admittedly, upon the domestic enquiry being held vitiated, by the Labour Court, management did lead evidence before the Labour Court to bring home the charge. As such, it was the worth and weight of that evidence alone which the Labour Court was obliged to examine and base its conclusions on, first, in respect of guilt of the workman, and then if required, for specific reasons to be recorded, on the question of quantum of punishment. 25. That having been said, the respondent workman during his cross examination, admitted he never objected to work as a conductor. The workman having not objected to work as a conductor, this fact ought to have been given due weightage while testing his bona fides along with other unrefuted evidence led by the management involving non-recording of sale of nineteen tickets therein and; of nine ticket-less travellers upto well beyond the stop/station where the said passengers boarded the bus, in the background of admitted fact of his having recorded sale of all other tickets in the way-bill. 26. Thus, though the workman claimed appointment on post of driver, he did admit to have been directed to work as a conductor. Having accepted to work as a conductor, the workman did not have a license to cause loss to the Corporation. At best, he may have claimed to have acted bona fide and therefore his mistake to be bona-fide. 27. In respect of his claim of bona fide conduct, it is observed that before the Labour Court, the workman did not dispute the fact that he had not recorded sale of all the tickets. Thus factually, it stood established that nineteen tickets sold by the workman had not been recorded by him in the way-bill. 28. The workman tried to get over this difficulty by merely stating that the way-bill had been snatched from him by the inspecting team who made entries thereon. 29. The workman however, does not appear to have cross examined Sri Ravindra Singh to establish that the way-bill had not been closed by him prior to the surprise inspection or that the way bill was still open when the inspection was carried out. 29. The workman however, does not appear to have cross examined Sri Ravindra Singh to establish that the way-bill had not been closed by him prior to the surprise inspection or that the way bill was still open when the inspection was carried out. The workman also did not lead any evidence to establish the place or time of inspection such as to disprove the management case. 30. On the other hand, the management witness had clearly stated that upon the inspection being made it was the inspecting team that recorded the nineteen tickets on the way-bill and further nine tickets were issued to the ticket-less travellers who were travelling on the bus and those entries were also recorded in the way-bill by the inspecting team. 31. In respect of the nineteen tickets, again, two had been sold at least three stop prior to the point of inspection. In such a situation, the burden was squarely on the workman to explain and establish the circumstance/s in which he did not record the sale of tickets (19) in the way-bill and why he had not been able to make sales of nine other tickets. 32. Also, there is no contradiction in the case pleaded and proved by the parties i.e. in the first place it appears that the respondent workman did not state that he had not closed the waybill or that he had sold tickets to nine passengers. Also, on the other hand, it is the admitted case of both parties that entries in respect of such nineteen tickets sold by the respondent workman and nine tickets sold by the inspecting team were recorded on the way-bill by the inspecting team itself. While looking at this fact, it need be remembered that the bus was beyond the boarding station/point of all twenty eight passengers (19+9). 33. Therefore, the respondent workman could draw no benefit from the evidence adduced by him that the inspecting team had made entries in the way-bill as these entries had been admittedly made by the inspecting team as it is not disputed by the respondent workman that he had not recorded in the way-bill tickets sold by him earlier. 34. It is in this light that the finding of the Labour Court as to the bona fide of the respondent workman and his carelessness/negligence is required to be examined. 35. 34. It is in this light that the finding of the Labour Court as to the bona fide of the respondent workman and his carelessness/negligence is required to be examined. 35. The workman having not recorded in the way-bill nineteen tickets sold by him, especially when the inspection took place near three stops further from the stop/station where the passengers (two) boarded the bus, clearly appears to be a case of the respondent workman having acted with motive that was, in the least, not bona fide. 36. This also indicates that the plea of lack of training was an after thought or a mere eye-wash inasmuch as on his own showing, the workman was aware of his duty as a conductor to record the sale of tickets in the way-bill as he was found to have done in respect of all tickets sold by him, except nineteen, though the bus was nearing the end of its journey. 37. It cannot, therefore, be said that the workman did not understand the relevance of recording the sale of tickets in the way-bill as also the manner in which entries were to be made in the way-bill. As such the plea of lack of training is of no consequence. It is also difficult to believe, in the facts of this case, the workman could have or would have, of his own either recorded the sale of nineteen tickets or issued and recorded nine other tickets in the way-bill when the bus was near its end of journey. 38. Thus, the finding recorded by the Labour Court as to bona fide of the workman does not appear to be based on evidence on record. It is then, perverse. 39. In this regard it may be noted that the Supreme Court has in the case of V. Ramanna v. APSRTC (2005) 7 SCC 338 , held that not making entries in the way-bill by the conductor and not issuing tickets is a serious misconduct. Similarly, the Supreme Court has also held in the cases of Regional Manager, RSRTC v. Ghanshyam Sharma (2002) 10 SCC 330; (2012) 1 SCC 442 ; (2003) 3 SCC 605 that carrying passengers without tickets is a serious misconduct. In those cases the Supreme Court upheld the punishment of removal from service on such charges. 40. Similarly, the Supreme Court has also held in the cases of Regional Manager, RSRTC v. Ghanshyam Sharma (2002) 10 SCC 330; (2012) 1 SCC 442 ; (2003) 3 SCC 605 that carrying passengers without tickets is a serious misconduct. In those cases the Supreme Court upheld the punishment of removal from service on such charges. 40. Also, it needs examination whether interference made by the Labour Court with the punishment awarded by the management on the reasoning that the same is excessive, is wholly without jurisdiction inasmuch as the Labour Court has not exonerated the workman of the charges levelled against him. In absence of such findings, the Labour Court had no jurisdiction to interfere with the punishment awarded by the management, which in any case was not excessive in light of the aforesaid pronouncements of the Supreme Court. 41. In such a case, fact of the workman not having been charged or punished on an earlier occasion is not decisive to judge whether the punishment awarded was disproportionate to the charge levelled. The workman was holding a position of trust. If such an employee is found to have broken the trust once, the employer would be within its rights to claim loss of confidence. 42. Also, I find the Labour Court has not recorded finding of innocence of the respondent workman and has not given any other reason to interfere with the punishment awarded to the workman. It has merely observed that the punishment of removal from service is excessive for the carelessness/negligence on part of the respondent workman. 43. Therefore, for all the reasons given above, this writ petition deserves to be allowed. In such a case the matter may have been remitted to the Labour Court, to rehear the case and frame a fresh award. However, in view of the fact under an interim order 25% back wages has already been paid to the respondent workman coupled with the fact that he attained the age of superannuation during pendency of this writ petition, no useful purpose may be served if this matter is sent back to the Labour Court now. 44. In view of the fact that 25% back wages have already been paid to the respondent workman the same shall not be recovered from him. 44. In view of the fact that 25% back wages have already been paid to the respondent workman the same shall not be recovered from him. As for the remaining 25% back wages lying in deposit under interim order of this court, the ends of justice would be met if 5% of such back wages (1/5 of the amount deposited) together with interest accrued thereon is also paid to the workman. The remaining 20% of back wages together with interest accrued thereon may be claimed and paid over to the petitioner. 45. The writ petition is allowed in part and the award of the Labour Court dated 24.01.2012 in Adjudication Case 48 of 2002 is modified to the above extent.