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2017 DIGILAW 528 (KAR)

DASHARATH HOBU CHAWAN v. NEKRTC

2017-02-28

RATHNAKALA

body2017
ORDER : RATHNAKALA, J. 1. The petitioner who is an ex-employee of the respondent/Corporation is challenging the award passed by the Labour Court whereby his claim petition seeking reinstatement is dismissed. 2. The facts not in dispute between the parties is that the petitioner/workman while working as a conductor with the respondent/Corporation was charged of misconduct of pilferage and after Departmental Enquiry, he was dismissed from service. He made an individual claim before the Labour Court and the same was contested by the Management. After completion of pleadings, preliminary issue was framed regarding validity of the Departmental Enquiry held against him. After recording the evidence of both the parties, the issue was answered against the Management. Thereafter the Management adduced its evidence on merits by examining its official who was a member of the checking squad. Rebuttal evidence was let in by the workman. After considering the evidentiary material available on record, the claim petition was rejected. 3. Sri. P.Vilas Kumar, learned counsel for the petitioner submits that once the Departmental Enquiry held was not fair and proper, it was incumbent upon the Labour Court to order the Management to pay subsistence allowances to the workman till the disposal of the case but the said factor was not considered by the Labour Court. Though in the dismissal order, the Disciplinary Authority had quoted the history of multiple misconduct of the workman, no evidence was adduced by the Management about the past history records. On the above two counts, the award of the Labour Court may be set aside and the workman be reinstated to his original post with continuity of service and back wages. 4. Sri. Subhash Mallapur, learned counsel for the respondent submits that the petitioner did not request the concerned Court for any allowance during the pendency of his claim petition after Departmental Enquiry was set aside. He has not shown that he is not working anywhere for gain. Though the Management did not adduce any evidence about his past records, in the dismissal order, which is upheld by the Labour Court, the particulars of previous misconduct is cited and the workman has not disputed the said fact. The Labour Court on a proper appreciation of evidentiary material has rejected his claim and the said order cannot be disturbed. 5. The Labour Court on a proper appreciation of evidentiary material has rejected his claim and the said order cannot be disturbed. 5. As to the question of misconduct proved against the workman, while he was on duty as a conductor on 29.12.2000, despite collecting a fare of Rs. 11/- from five of the adult passengers, he had not distributed the tickets and from another passenger, he had not collected a fare of Rs. 10/- and the Disciplinary Authority dismissed him from service on the charges proved and also in the backdrop of his history sheet probably without providing him an opportunity in respect of the history sheet. The learned Labour Court during the course of appreciation of evidence, observed that the Divisional Controller himself was one of the members of the checking squad and the workman has not attributed mala fides against the members of the checking squad. The workman was aware of his past history record since it was cited in his dismissal order and his service was not yet regularized. In the backdrop of the above, the Labour Court endorsed the action taken by the Management which had lost faith against the workman. 6. The Apex Court in its judgment in the case of U.P.State Road Transport Corp. & Anr. v. Gopal Shukla & Anr. in Civil Appeal No. 2038/2012 : (Reported in (2015) 9 SCALE 567), observed that "... The Conductor holds the post of trust under the Corporation. It is extremely difficult on the part of the checking authorities to check in a constant manner. An employee holding the post that requires trust and confidence is expected to behave with discipline, loyalty and also maintain the fiscal sanctity. He should not allow anything to creep in which would make him a person of questionable integrity. .... The motive of the respondent from the act is inherent. An employee holding the post that requires trust and confidence is expected to behave with discipline, loyalty and also maintain the fiscal sanctity. He should not allow anything to creep in which would make him a person of questionable integrity. .... The motive of the respondent from the act is inherent. When such kind of indiscipline causes financial loss to the Corporation, adequate punishment has to be imposed and in our view such misconduct does not stand on a lesser footing than embezzlement or corruption and more importantly results in loss of faith and breaches the trust." In a case where the embezzlement of amount is minimal then also no sympathy can be extended to the workman since it is not the amount embezzled by a delinquent employee but the mens rea to misappropriate the public money [per the judgment of the Apex Court in the case of U.P. State Road Transport Corporation v. Suresh Chand Sharma, reported in (2010) 6 SCC 555 ] : (2010 AIR SCW 3859). 7. Any sympathy shown in these kind of cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant (per the judgment of the Apex Court in the case of Municipal Committee, Bahadurgarh v. Krishnan Bihari & Ors., reported in AIR 1996 SC 1249 ). Similar view was taken by the Apex Court in the case of U.P. State Road Transport Corporation, Dehradun v. Suresh Pal, reported in (2006) 8 SCC 108 : ( AIR 2006 SC 3227 ). 8. In the light of the above, the misconduct of embezzlement having been proved against the petitioner that too in the early stage of his career, it necessitates to endorse the award passed by the Labour Court. 9. Hence, the petition is rejected.