Amthabhai Kalubhai Mayavanshi vs Divisional Controller

V.M. Sahai, J.—This Letters Patent Appeal has been filed under Clause 15 of the Letters Patent, challenging judgment of the learned Single Judge dated 25.8.2010 passed in Special Civil Application No. 5232 of 2009, by which the learned Single Judge has dismissed the writ petition and affirmed the award dated 10.7.2008, passed by the Presiding Officer, Labour Court, Godhra in Reference (LCG) No. 346 of 1995.

Since the facts are not disputed, the learned Counsel for the parties agree that this matter may be finally disposed of at the admission stage itself. With the consent of the learned Counsel for the parties, we have taken up this Appeal for final disposal.

The Appellant was conducting a bus of Gujarat State Road Transport Corporation (for short the Corporation) on 30.8.1994 on Machhi to Pavagadh route. The bus was on an extra trip as there was a fair at the temple and due to heavy rush, the Corporation had decided to run extra trips. 84 adults and 3 minors boarded the bus at Machhi. The Appellant had issued five tickets to a group of five persons of Rs. 1.25 ps. each and they were to get down from the bus about 5 Kms. from Machhi. Due to heavy rush of passengers, though the Appellant had made tickets of 74 passengers, but he could not make tickets of total 84 passengers in short span of time and when the bus was checked after 5 Kilometer of distance, 19 adult passengers and 2 minor passengers were found to have been travelling without tickets. The explanation of the Appellant in the inquiry proceedings was that due to fair, there was heavy rush of passengers and while he was making tickets, the bus was checked and he could not issue tickets to 19+2 passengers.

The Respondent Corporation issued a charge-sheet to the Appellant on 29.4.1994 levelling three charges against the Appellant. First charge was that a group of five passengers who were going from Machhi to Pavagadh, were issued tickets of Rs. 1.25 ps. each but before they got down from the bus, the conductor took back the tickets and five passengers were found without tickets by the Checking Squad. Second charge was that the tickets which were issued to the group of five passengers were found in the hands of the conductor by the Checking Squad and the Checking Squad took the custody of five tickets issued to the group from the hands of the conductor. Third charge was that the conductor did not issue tickets to 19+2 passengers. After conducting the departmental disciplinary proceedings, the second show cause notice was issued to the Appellant on 8.6.1994, wherein it was mentioned that the charge against the Appellant has been found to be proved and the Appellant may show cause as to why punishment of dismissal may not be awarded to him. Along with the show cause notice, copy of inquiry report was sent to the Appellant. In the last paragraph of the inquiry report, it was mentioned that twice warning was issued, eight times fine was imposed and twice yearly increments were stopped by various orders.

This second show cause notice was replied by the Appellant on 27.6.1994, wherein the Appellant stated that so far as issuing tickets to the group of five passengers was concerned, he had taken the tickets back to refund the excess amount. He further stated that because the bus was overloaded, he could not issue tickets to 19+2 passengers and excess amount of Rs. 13.25 ps. which was found from his cash bag, was required to be refunded to the passengers. It was stated by the Appellant that five tickets issued to the group of five passengers were taken back by him for the purpose of returning the excess amount. The statement given by passenger Shri Kanaiyalal C. Patel was signed by the Checking Squad and by the Appellant. The Appellant had also given statement in his own handwriting and stated that such a mistake will be not repeated. However, the statement of the Appellant was not accepted by the Inquiry Officer that he was doing road booking. The statement of the driver was also recorded, which was signed by the Appellant that by ringing the bell, he instructed the driver to start the bus. The excess cash, which was found in the cash bag of the Appellant conductor was not mentioned in the charge-sheet. However, the disciplinary authority dismissed the Appellant from service by order dated 8.7.1994.

The Appellant raised industrial dispute. So far as third charge of not issuing tickets to 19+2 passengers is concerned, the Labour Court has recorded a finding of fact that this charge was not proved against the Appellant. The reason given by the Labour Court is that if the conductor has issued tickets to 74 passengers, there was no reason as to why he would not issue tickets to 19+2 passengers. But, because of rush in the bus, he could not issue tickets and the bus was checked at a distance of 5 kilometer from Machhi, from where the bus originated. The Labour Court, Godhra recorded a finding that the finding of the Inquiry Officer was perverse, and in view of Clause 7(a) of Schedule-A of the Discipline and Appeal Procedure for Gujarat State Road Transport Corporation Employees had been framed under Regulation 80 of the Gujarat State Road Transport Corporation Employees Service Regulations (for short, the Discipline and Appeal Procedure), since the Appellant has furnished the reasonable explanation for not issuing tickets to 19+2 passengers, therefore, the Appellant was exonerated of the third charge. However, the Labour Court held that the Appellant was guilty of first and second charge and rejected the reference on 10.7.2008. The writ petition of the Appellant was dismissed on 25.8.2010.

Learned Counsel Mr. J.S. Brahmbhatt for the Appellant has vehemently urged that the Appellant was not guilty of any misappropriation of the amount of the Corporation as the bus was on the route as a special service to bring the devotees from the temple and due to heavy rush, in all 87 passengers boarded the bus, out of which, 84 were major and 3 were minor. The Appellant was doing road booking due to heavy rush in the bus. ''Road Booking'' means when conductor issues tickets to passengers while bus is in motion. ''Stand Booking'' means that tickets are issued at the bus-stand. The Appellant had issued tickets to 74 passengers. But, while the bus travelled only a distance of 5 kilometer, the Checking Squad checked the bus before the Appellant could make tickets of 19+2 passengers. The Appellant was not found guilty of this charge No. 3 of taking 19+2 passengers without ticket. The learned Counsel further urged that so far as the group of five passengers was concerned, their tickets had been made by him and while they got down from the bus, they handed over their tickets to the Appellant for refunding some amount back to them and that is why, the tickets were found in the hands of the Appellant. The Appellant was not guilty of charge Nos. 1 and 2. The learned Counsel lastly urged that the past conduct has been considered by the Respondent while awarding punishment of dismissal. Since it was not mentioned in the charge-sheet that the past conduct of the Appellant would be taken into consideration while awarding punishment, the Appellant did not had any opportunity to give suitable reply to it. At least, a notice was required to be issued to the Appellant that his past conduct would be taken into consideration and in absence of any such notice, the order of dismissal was illegal, which was also based on past misconducts.

Learned Counsel for the Respondent Mr. Hardik C. Rawal has urged that the Appellant did not submit any reply to the charge-sheet. But, he appeared before the Inquiry Officer and gave his statement. In his statement, the Appellant had admitted that he had issued tickets to a group of five passengers and had taken the tickets back from them. Cash of Rs. 13.25 ps. was found in excess in the bag of the Appellant. In his cross-examination before the Inquiry Officer, the Appellant admitted the statement given by him before the Checking Squad. One passenger Shri Kanaiyalal C. Patel gave statement before the Checking Squad that he gave Rs. 7.50 ps. for five tickets and when he got down from the bus at his destination, the tickets were given back to the conductor by the wife of Shri Kanaiyalal C. Patel. The act of taking back the tickets established that there was intention to misappropriate the amount of the Corporation. These facts established the charge Nos. 1 and 2 against the Appellant. Past conduct of the Appellant was considered for which no notice was required to be given to the Appellant.

We propose to take up the first question as to whether the Appellant was guilty of taking back the issued tickets in his hand from the group of five passengers who were found without ticket by the checking squad. From the material on record, it is clear that the Appellant had issued tickets to the group of five passengers of Rs. 1.25 ps. each and had taken back the tickets in his hand to recollect as to what amount was to be returned back to them. Normally, a conductor mentions at the back of ticket as to what amount has to be refunded. When the passengers got down from the bus, they handed over their tickets back to the Appellant for refunding the excess amount. Kanaiyalal C. Patel, the passenger in his signed statement before the Checking Squad has clearly stated that he paid Rs. 7.50 for five tickets and his wife after getting down from the bus had given the tickets in the hand of the Appellant. Fare of five persons at the rate of Rs. 1.25 each would be Rs. 6.25. The refund due was Rs. 1.25. From these facts, it is borne out that the tickets were handed back to the Appellant for refund of Rs. 1.25. No other view on facts was possible. Since the Appellant took back the tickets in his hand to verify as to what amount was required to be refunded, the Checking Squad checked the bus and found the passengers, who had got down from the bus, without tickets as their tickets were in the hand of the Appellant.

The Labour Court came to the conclusion that taking back the tickets from the passengers was with no other purpose than to misappropriate the fund of the Corporation. Whereas, the conductor has stated in the inquiry proceedings that the tickets were taken from the passengers so that he may refund the excess amount which was taken by him from the passengers. The Labour Court came to the conclusion that this statement of excess of the amount to be refunded to five passengers was an afterthought of the conductor because he has not stated about refund before the Checking Squad, and that was the reason why he took back the tickets from the group of five passengers.

The Discipline and Appeal Procedure in Clause 3, classifies the offences committed by employee, in two classes, (a) Acts of Misconduct, and (b) Minor Lapses and Delinquencies. Clause 5 provides for dealing with acts of misconduct and Clause 4 provides the procedure for dealing with minor lapses and delinquencies. It further mentions that acts of misconduct are those which have been specified in Schedule ''A''. Schedule ''B'' applies to minor lapses and delinquencies. The allegation of taking the group of five passengers without ticket and their ticket in the hand of the conductor would fall under the first category ''Acts of Misconduct''. Schedule ''A'' at item No. (12) reads as under:

12 (a) Theft.

(b) Fraud, dishonesty or misappropriation in connection with the business or the property of the Corporation.

The Disciplinary Authority as well as the Labour Court have relied on Schedule ''A'' item No. 12(b). The question arises as to whether the Appellant had committed any misconduct as provided by Schedule ''A'' item No. 12(b) and is guilty of fraud, dishonesty or misappropriation in connection with the business or the property of the Corporation. The Appellant has been found by the Disciplinary Authority as well as by the Labour Court guilty of charge Nos. 1 and 2 of taking the group of five passengers without ticket and their tickets were taken back by him, which the Checking Squad found in his hand. Even accepting that the Appellant had not stated before the Checking Squad that he has taken back the ticket from the group of five passengers for refunding the excess amount, the facts found by the Checking Squad did not disclose any fraud, dishonesty or misappropriation committed by the Appellant in connection with the business or the property of the Corporation. The findings of the Disciplinary Authority and the Labour Court that the group of five passengers was travelling in the bus without ticket, are liable to be held as unreasonable and perverse in view of the fact that the leader of the group of five passengers, who were travelling together, Mr. Kanaiyalal C. Patel, had stated that his wife had returned the tickets issued to them back to the conductor. Therefore, these five passengers could not be taken to be travelling in the bus without ticket. Further, the ticket found in the hand of the Appellant was for the purpose of refunding the excess amount and no other purpose has been mentioned for taking the tickets in his hand, by the conductor, either by the Disciplinary Authority or by the Labour Court. It is not the case of the Respondent that any other destination from the place where the bus was checked, had a fare of Rs. 1.25. Therefore, the tickets could not be re-used by the Appellant.

From the material on record, we are of the considered opinion that the Appellant was not guilty of taking back the issued tickets to the group of five passengers which was found in his hand as there was no intention to re-use the tickets nor he was guilty of taking them without ticket. The order of the Disciplinary Authority and award of the Labour Court is based on irrational factors. There is no material on record to establish that the Appellant had caused any financial loss to the Corporation. The Labour Court misdirected itself in holding that the defence of the Appellant that he took back the tickets from the group of five passengers to refund the excess amount was an afterthought. We are conscious of the fact that we cannot reassess the evidence nor we can interfere on the ground that another view is possible on the material on record. But, the finding of the disciplinary authority and the Labour Court that the Appellant was guilty of charge Nos. 1 and 2 is based on assumption and suppositions. Their findings are based on no evidence which could prove that the Appellant is guilty of misconduct, thus, the findings of guilt of the Appellant are clearly perverse. Therefore, the first and second charge against the Appellant were not proved and the orders passed by the Disciplinary Authority, Labour Court and the learned Single Judge on charge Nos. 1 and 2 cannot be maintained.

The excess amount of Rs. 13.25 found in the bag of the Appellant, was explained by the Appellant that it was to be refunded to the passengers who had paid extra amount while purchasing the tickets. However, it was not mentioned in the chargesheet and therefore, it could not have been considered either by the Disciplinary Authority or by the Labour Court. Even Schedule ''B'' which provides for Minor Lapses and Delinquencies, its item No. 12 is extracted below:

Excess cash up to Rs. 25/- found with a Conductor.

From the aforesaid item No. 12, it is clear that excess cash upto Rs. 25/- found with conductor could be a minor lapse, for which warning and reprimand could be issued by the officer authorised by Clause (4). But, this charge was not levelled against the Appellant. Therefore, if any amount was found in excess in the cash bag of the Appellant, he cannot be held to be guilty of minor lapses or delinquencies in absence of any charge framed by the Respondent against the Appellant.

The next argument of the learned Counsel for the Appellant is that the past conduct of the Appellant could not be considered while imposing punishment of dismissal. The Hon''ble Apex Court in paragraph 34 and 35 of the judgment in the case of Mohd. Yunus Khan Vs. State of U.P. and Others, has held as under:

The courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the charge-sheet should contain such an article or at least he should be informed of the same at the stage of the show cause notice, before imposing the punishment.

This Court in Union of India v. Bishamber Das Dogra considered the earlier judgments of this Court in State of Assam v. Bimal Kumar Pandit, India Marine Service (P) Ltd. v. Workmen, State of Mysore v. K. Manche Gowda, Colour-Chem Ltd. v. A.L. Alaspurkar, D.G., RPF v. Sai Babu, Bharat Forge Co. Ltd. v. Uttam Manohar Nakate, and Govt. of A.P. v. Mohd. Taher Ali and came to the conclusion that it is desirable that the delinquent employee be informed by the disciplinary authority that his past conduct could be taken into consideration while imposing the punishment. However, in case of misconduct of a grave nature, even in the absence of statutory rules, the Authority may take into consideration the indisputable past conduct/service record of the delinquent for "adding the weight to the decision of imposing the punishment if the fact of the case so required.

In view of the decision of the Hon''ble Apex Court, looking to the charges against the Appellant and the findings recorded by us in the earlier paragraph of this judgment, the charge was not of grave nature which warranted consideration of the past conduct of the Appellant. In view of the facts of the case in hand, we are of the opinion that the past conduct of the Appellant could not be taken into consideration because it was neither mentioned in the charge-sheet nor in the second show cause notice issued to the Appellant.

We are further of the considered opinion that the dismissal order passed against the Appellant by the Respondent for the reasons given above cannot be maintained. However, the Appellant has already attained the superannuation age on 30.9.2002, there is no question of directing any reinstatement in service. Therefore, interest of justice would be served if we direct the Respondent that the Appellant shall be treated to be in continuous service from the date of dismissal till the date of superannuation for the purpose of pension and post retiral benefits. He shall be paid his all retirement dues, including pensionary benefits. However, the Appellant shall not be entitled for any back wages from the date of dismissal till the date of superannuation, but in lieu thereof, he shall be paid compensation of rupees one lac only.

In the result, this Letters Patent Appeal succeeds and is allowed. Order passed by the Disciplinary Authority dated 8.7.1994, award passed by the Labour Court, Godhra dated 10.7.2008 in Reference (LCG) No. 346 of 1995 and order passed by the learned Single Judge dated 25.8.2010 in Special Civil Application No. 5232 of 2009 are set aside. The Appellant shall be treated to be in continuous service from the date of dismissal till the date of superannuation for the purpose of pension and post retiral benefits. The Appellant shall be paid his all retirement dues, including pensionary benefits. However, the Appellant shall not be entitled for any back wages from the date of dismissal till the date of superannuation, but in lieu thereof, he shall be paid compensation of rupees one lac only. The aforesaid direction shall be complied by the Respondent within a period of four months from today.

Parties shall bear their own costs.