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Judgment
Ravi V. Malimath, J—The case made out against the petitioner workman is that when he was working as a conductor with the respondent-corporation, the bus was checked and it was found that he had issued 7 invalid tickets to the passengers travelling from Belgaum to Kolhapur and had not shown the sale of the said tickets in the way bill. Therefore, he had attempted to pilfer the respondent-corporation with revenue to the tune of Rs. 203/-. That on a physical check of the tray bill, he was found in possession of various invalid tickets in a total sum of Rs. 6,610/-. On an articles of charge being issued, he submitted his reply. Inquiry was held. He participated in the same. The inquiring officer held that the charges were not proved. The disciplinary authority on going through the inquiry report did not accept the same. A second show cause notice was issued to the workman. He submitted his reply to the same. The disciplinary authority having considered it, dismissed the workman from service. Aggrieved by the same, he filed a petition under Section 10(4)(A) of the Industrial Disputes Act, 1947(hereinafter referred to as the ''ID Act'', for short). By the impugned order, the petition was dismissed. Hence, the present petition.
Sri. Ravi Hegde, learned counsel for the petitioner contends that the impugned order is bad in law and liable to be set aside. That the inquiring officer was justified in holding that the charges have not been proved. However, the disciplinary authority having not accepted the inquiry report have committed an error in re-appreciating the evidence and in coming to the conclusion that the charges have been proved. Hence, he pleads that the petition be allowed by setting aside the order of dismissal. In support of his case, he relies on the judgment reported in Rajinder Kumar Kindra Vs. Delhi Administration through Secretary (Labour) and Others, AIR 1984 SC 1805 : (1984) 49 FLR 424 : (1986) LabIC 374 : (1984) 2 LLJ 517 : (1984) 2 SCALE 428 : (1984) 4 SCC 635 : (1985) 1 SCR 866 : (1984) 2 SLJ 492 : (1985) 17 UJ 465 to contend that when there is total lack of evidence, even a writ court can go into that issue.
On the other hand, learned counsel for the respondent, defends the impugned order. He contends that the disciplinary authority as well as the labour Court have rightly held that the inquiry report is erroneous. That in spite of clinching evidence against the workman, the inquiring officer committed an error in holding that the charges were not proved. The disciplinary authority have rightly performed their duty in reversing the order. Hence, no interference is called for.
Heard learned counsels.
The charges levelled against the petitioner is that he has issued 7 invalid tickets to passengers. That he was found in possession of the invalid tickets to the tune of Rs. 6,610/-. In order to prove the charges, the management led-in their evidence. The facts were concluded since the workman was found in possession of the invalid tickets. Checking squad served an office memo on him. His signature was also obtained on the same. It was also mentioned therein that invalid tickets worth Rs. 6,610/- were found in the tray of the workman. Therefore, immediately on having found the same, office memo was issued. On the other hand, it is contended by the workman that the office memo was not served on him at the spot. However, it is a mere contention. The records would indicate that the office memo was served on him. Articles of charges were issued. Therefore, such a contention cannot be accepted.
The evidence of Diwakar and Shivashankar who are the Assistant Traffic inspector was also recorded in the course of inquiry. Based on their evidence and the documents produced, the management was able to establish that as on the alleged date and place, the workman had issued 7 invalid tickets and was in possession of the same. However, the inquiring officer disbelieved the same. It is the contention that the panch witness has turned hostile and therefore the entire case of the management falls on the ground. V am of the considered view that such a contention cannot be accepted. The clinching evidence of the Assistant Traffic Inspector-Diwakar and Shivashankar would clearly indicate that the workman was found in possession of invalid tickets of different denominations amounting to Rs. 6,610/- and also issued invalid tickets to 7 passengers. Nothing worthwhile has been elicited in their cross-examination to disbelieve their evidence. Therefore, merely because the panch witness has turned hostile would not by itself affect their evidence in view of the clinching evidence against the workman. Hence, such a contention cannot be accepted.
Even otherwise, past history sheet of the workman would show that he committed identical misconduct on four previous occasions. They include of having not issued tickets nor collected the revenue from the passengers and on all the four occasions, he has received punishments. Therefore, this factor was also taken into account while dismissing the workman from service.
The evidence of the management-witness would show that the claimant was found in possession of the invalid tickets. On the other hand, there is no explanation from the workman as to how he came in possession of those tickets. Such an issue was not even discussed by the inquiring officer. The inquiring officer was duty bound to record his findings as to the evidence of the management witnesses and the absence of any adequate explanation by the workman. He has failed to do so. The oral evidence has not been discussed by the inquiring officer with regard to the possession of invalid tickets possessed by the workman as well as the passengers. It is for this reason that the finding recorded by the inquiring officer was found fault with. Therefore, what falls for consideration is as to whether the workman was possessing invalid tickets when the bus was checked and whether invalid tickets were issued to the passengers. The contention that all the passengers were in possession of the invalid tickets, therefore, would not come into play. Based on the evidence and the records, it would indicate that 7 invalid tickets were issued to the passengers. Therefore, that is what had to be considered by the inquiring officer which he has failed to do so. Even otherwise it is not the case of the workman that false documents have been created by the management and there is unfair labour practice on behalf of the management. In fact, he has not stated that the officer has not checked the bus on the alleged date, time and place. On the other hand, he has not explained as to how he came in possession of the invalid tickets. He has not assigned reason as to why the number of tickets issued to the passengers is not mentioned in the way bill. All these facts are supposed to be within the knowledge of the workman and it is he who had to explain the same. He has failed to do so.
The counsel for the petitioner specifically relies on the para 18 of the judgment of the Supreme Court in the case of Rajinder Kumar(Supra). Therein the Hon''ble Supreme Court has held that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come, such a finding is perverse. To hold that the findings are perverse does not constitute reappraisal of evidence. Therefore, the Hon''ble Supreme Court was of the view that between appraisal of evidence and total lack of evidence there is an appreciable difference which could never be lost sight of and the High Court ought not to have short circuited the writ petition. Therefore, the facts therein would indicate that the High Court dismissed the petition on the ground that the same would amount to re-appreciation of evidence. There is no dispute with the principle as enunciated therein. It is one of the fundamental principle for re-appreciation of evidence. However, the issue herein is not one of lack of evidence. The issue herein is, whether the evidence justifies the findings recorded by the authorities. The evidence of MW-1 as well as the statement of Diwakar marked as Ex. M-7 are sufficient evidence to prove the charges against the workman. It is not a case of lack of evidence. This is a case of absolute evidence being led-in by the corporation in order to prove the charges against the workman. Therefore, the said judgment would be of no avail to the workman. Therefore, it cannot be said that the order is perverse.
The impugned orders herein are as a result of appreciation and substantial evidence against the workman. The Hon''ble Supreme Court in a recent judgment reported in G.M. (Operations) S.B.I. Vs. R. Periyasamy, (2015) 1 LLN 31 : (2015) 1 SCJ 7 has reiterated the scope of judicial review and the manner in which the power of judicial review has to be exercised. It was held in paras 8 to 10 and 16 that the permissible enquiry was whether there was no evidence on which findings were arrived at or whether there was any perversity in the findings and not whether evidence was acceptable or not, that the question of adequacy of evidence also could not have been gone into to conclude that evidence was insufficient to hold the respondent guilty. The Hon''ble Supreme Court held that the High Court in exercise of its writ jurisdiction cannot go into question of sufficiency or adequacy of evidence to set aside findings of fact, that the justification offered by Division Bench that the Single Judge of the High Court had to undertake exercise of analysing findings of the enquiry officer because the appellant had deprived the respondent of his livelihood is untenable, that the transgression of jurisdiction cannot be justified on the ground of consequences. As a consequence, the Hon''ble Supreme Court restored the dismissal order passed on the workman.
Hence, following the said judgment, I am of the considered view that the finding of the disciplinary authority cannot be said to be based on lack of evidence. Substantial evidence has been led in and the findings recorded are just and appropriate. Hence, on all these grounds I find no good ground to interfere.
The petition being devoid of merit is dismissed. Rule discharged.