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Judgment
M. Venugopal, J.—The Petitioner has filed the present writ petition seeking a relief of Writ of Certiorarified Mandamus in calling for the records relating to the award dated 30.09.2005 passed by the First Respondent in I.D. No. 70/02 and to hold that termination of his service by the Second Respondent by an order dated 02.08.2001 is illegal and to quash the same and consequently directing the Second Respondent to pay the Petitioner the back wages from the date of termination of his service to the date of his superannuation with continuity of my service and other attendant benefits including pension.
The Petitioner as Conductor joined the services of the Second Respondent/Transport Corporation on 30.06.1975. On 28.09.2000, he worked as Conductor in the bus running between Trichy and Madurai. At about 7.00 p.m, the bus commenced its trip at Trichy. Many number of passengers boarded the bus at Trichy over and above its capacity. He issued tickets to all the passengers who boarded the bus at various stops and recorded it in the invoice.
According to the Petitioner, the management introduced a new system of issuing tickets to the passengers. In the old system, the conductor used to write the fare in the ticket and issued the duplicate of it to the passenger and the original would be kept in the ticket book and the number of tickets sold in a stage would be recorded in the invoice. He was acquainted with the old system for long number of years.
Under the new system, the tickets were issued from ticket bundles. Each ticket bundle consists of 50 tickets of particular and preprinted fare denomination. The Conductor used to complete the invoice at each stage before the bus reached the next stage by recording the number of tickets sold from each ticket bundle.
Due to sudden switch over to the new system, it was not easy for the Conductor, like the Petitioner to keep an account of the passengers who boarded the bus at different stages and the number of tickets issued to them, which he was able to do quiet easily as per the old system.
As per the old system, while recording the number of passengers travelling in the bus and the number of staff allowed free travel without ticket would be recorded separately in the invoice. But in the new system, there was no column in the invoice to record such free travelers in the bus and the conductors were also not asked to record their travel either in the invoice or in any other document maintained by them and the staff were allowed to travel by just showing their identity card issued by the managements of the Corporations. As a matter of fact, when the bus started its trip at Trichy, a staff of the Second Respondent/Corporation also boarded the bus and showed his identity card for his travel.
The learned Counsel for the Petitioner/Employee submits that three checking inspectors checked the bus at Melur. They checked all the passengers in the bus. All passengers except one were possessing valid tickets. At the time of checking it was found that it was a group of two passengers, but they have only one ticket. As such one was not possessing the ticket and was travelling without ticket from Trichy taking advantage of the crowd in the bus.
The plea of the Petitioner is that he was not paid the money for two tickets nor was asked for issuance of two tickets and the Petitioner is received the fare for only one ticket for Trichy to Madurai and issued the ticket for the same.
Because of the fact that one passenger of the group was not in possession of a ticket he was to be visited with fine by the checking inspectors. To avoid payment of fine, the passenger gave a false statement to the checking inspectors implicating the Petitioner that he tendered Rs. 55/-to him for two tickets from Trichy to Madurai and the Petitioner issued only one ticket and further he failed to issue another ticket.
The contention of the Petitioner is that the Petitioner denied the statement of the passenger and also that he had not received the fare for two tickets from him and issued him only one ticket for which alone he collected the fare and to that extent he gave a written statement. Moreover, the checking inspector checked his cash bag and found no excess amount of Rs. 27.50. In reality, a sum of Rs. 25.50 was found as shortage in the Petitioner''s cash bag.
The Petitioner was suspended of his service by an order dated 29.09.2000 which was later revoked by an order dated 20.10.2000. A charge memo was issued to the Petitioner on 10.10.2000. As per the charge memo, the allegation against the Petitioner was that after collecting a fare Rs. 55/-from the group of two passengers travelling from Trichy to Madurai for two tickets, he issued only one ticket for one passenger and failed to issue ticket for another Rs. 27.50 and thus endeavoured to misappropriate a sum of Rs. 27.50 and further refused to sign in the statement of the passenger and that he furnished a false statement.
The Petitioner submitted his explanation and denying the charges. A domestic enquiry was conducted by the Second Respondent Transport Corporation.
The learned Counsel for the Petitioner takes a stand that the domestic enquiry as against the Petitioner was not conducted in accordance with the principles of natural justice and also of fair opportunity was not provided to him to deny the charges. However, the Enquiry Officer gave his report dated 18.12.2000, holding that the charges levelled against the Petitioner were proved. The Second show cause notice dated 16.02.2001, was issued by the Second Respondent based on the report of the Enquiry Officer and it was mentioned that the management accepted the findings of the Enquiry Officer and proposed to dismiss the Petitioner from service and called for his explanation. Accordingly, the Petitioner submitted his explanation dated 16.03.2003, mentioning that the charges could not be held proved against him and requested the Management to drop the proposed action of dismissing of service, but, the Petitioner was dismissed from service on 02.08.2001.
The Petitioner raised an Industrial Dispute which was taken on file in I.D. No. 70 of 2002 on the file of the First Respondent/Labour Court, Trichy. A preliminary issue was held against the Petitioner by concluding that the Second Respondent/Management conducted the domestic enquiry against the Petitioner in a proper manner. The First Respondent/Labour Court passed an award dated 30.09.2004, dismissing the Industrial Dispute in I.D. No. 70 of 2002 filed by the Petitioner. In the award it was held that the charges levelled against the Petitioner was proved and the termination of service was legal one.
The learned Counsel for the Petitioner urges before this Court that the award of preliminary issue and findings with regard to the charges levelled against the Petitioner are arbitrary and violative of Article 14 of the Constitution of India. Further, the Petitioner was not able to effectively defend the charges and cross examine the MW-1 and further was not in a position to put forth his case in the enquiry.
It is the contention of the learned Counsel for the Petitioner that the Management witness was not examined in chief and that not deposed and a novel procedure was adopted whereby the management witness asked the Enquiry Officer to treat his basic report marked as Ex.M1 and his evidence in chief and the Enquiry Officer readily obliged. Immediately, the Petitioner was asked to cross examination of MW.1 and as such he was denied the opportunity.
The learned Counsel for the Petitioner submits that the impugned award passed by the First Respondent in I.D. No. 70 of 2002 is an erroneous one.
That apart, the learned Counsel for the Petitioner submits that after the impugned charges levelled against the Petitioner were true that there would have been excess amount in the cash bag but admittedly there was no excess amount in his cash bag at the time of checking. But, this factual aspect of the matter had not been adverted to properly by the First Respondent/Labour Court. In any event, the punishment of dismissal order against the Petitioner was extremely disproportionate one and it amounts to legal victimization.
In response, it is the contention of the learned Counsel for the Second Respondent/Management that the Petitioner was on duty in the bus bearing Registration No. TN 55 N 0087 on 28.09.2000 and during its 19.00 hours trip from Trichy to Madurai, a Checking Inspectors at Melur, made a surprise inspection. It was found out by the Checking Inspectors team that the Petitioner received Rs. 55/-(Received Fifty Five only) from two group passengers for Trichy to Madurai and he was issued only one ticket for Rs. 27.50 to one passenger and had not issued another ticket for the second passenger and thus attempted to misappropriate a sum of Rs. 27.50.
The learned Counsel for the Second Respondent/Management expatiating his arguments contents that the passenger furnishing a statement as to the above facts, in which the driver of the bus affixed his signature as a witness and that the Petitioner refused to sign the statement and that he initially admitted the misconduct and gave a false statement after though when he was requested to give a statement.
The learned Counsel for the Second Respondent/ Management brings to the notice of this Court that the Petitioner was suspended on 29.09.2000. A charge memo dated 10.10.2000 was served on the Petitioner. Pending disciplinary action, on 20.10.2000, the suspension was revoked. He had not submitted any explanation for the charges framed against him within the stipulated period and therefore the Second Respondent/Management appointed one G. Vellaichamy as a Domestic Enquiry Officer. The enquiry was held on 04.12.2000. The Petitioner has participated in the enquiry the Management witness was examined in the presence and was also cross examined by the Petitioner. The Petitioner also examined himself and furnish a letter dated 04.12.2000 itself. The Domestic Enquiry Officer submitted its finding to the Second Respondent/Management by his letter dated 18.12.2000 holding that the charges framed against the Petitioner were proved.
The Management after examining the finding of the Domestic Enquiry Officer accepted the same in all respects. The Second Respondent/Management came to a provisional conclusions of dismissing the Petitioner from service. A show cause notice was served on the Petitioner on 16.02.2001, calling upon him to explain as to why the provisional conclusion arrived by the Management and the Transport Corporation should not be implemented for the proved misconduct. As a matter of fact, the Petitioner had not submitted his explanation for the second show cause notice. After taking into account the gravity of the proved misconduct and taking notice of the past record of the Petitioner in which he has been punished on twenty occasions earlier including on one occasion for the similar misconduct and one disciplinary case is pending against him, the Management dismissed him from service with effect from 02.08.2001. The enquiry was conducted in accordance with the principles of natural justice and dismissing the Petitioner for proved misconduct is a valid one. Hence, he seeks for the dismissal of the writ petition.
The learned Counsel for the Petitioner cites the decision of the Honourable Supreme Court in Kesoram Cotton Mills Ltd. v. angadhar and Ors. reported in 1962 II LLJ 371 , wherein it is held that the concerned workmen were not given copies of the statements made by the witnesses before they were called upon for the domestic enquiry to cross-examine the witnesses on such statements read over in the presence of the concerned workmen and marked as evidence in examination-in-chief of the respective witnesses and the conclusion of the industrial tribunal that such procedure adopted at the domestic enquiry was against the principles of natural justice, in the circumstances, was justified.
He also relies on the decision of Honourable Supreme Court in Kuldeep Singh and Commissioner of Police and Ors. reported in 1999 I LLJ 33, wherein it is held as follows:
...the findings recorded at domestic enquiries, a distinction has to be maintained. The distinction is between decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable, the order of punishment of dismissal would be perverse and therefore amenable to judicial scrutiny. But if there is some evidence on record which is acceptable, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings could not be interfered with.
He also seeks in aid of the decision of this Court in W.B. Correya Vs. Dy. Managing Director, Indian Airlines and Others, wherein it runs as follows:
It is true that it is not necessary for a person who has given the statements behind the back of the person charged to speak word by word or sentence by sentence before the Tribunal. But the facts referred to in the statements should be affirmed at least in a general why in his evidence before the Tribunal.
The Indian Airlines Corporation owes its existence to the Air Corporation Act of 1953. Therefore, it is a statutory authority. Section 45(2)(b) of that Act, enables the Corporation by notification in the official gazette, to make regulations not inconsistent with the Act or the Rules made thereunder regarding the terms and conditions of service of its officers and other employees. The regulations, which deal with the disciplinary proceedings, have been framed under the said statutory power of the Corporation. Therefore, the officers and the employees of the Corporation have a statutory status and for the violation of any of the statutory regulations relief can be sought in writ jurisdiction by the aggrieved party. It is therefore, not possible to treat this purely as a matter between the master and his servant so as to exclude the writ jurisdiction.
He also draws the attention of this Court in Indian Airlines and Others Vs. W.B. Correya, wherein it runs as follows:
If the statement(recorded behind the back of the delinquent employee) is not put to the witness and he had not been given an opportunity to deny or affirm the same there is, in fact, no evidence of that witness in the course of chief examination at all and it is very doubtful whether such a statement, notwithstanding copies thereof had already been furnished to the worker, can be used as substantive evidence against the worker concerned. It is this aspect of the matter that weighed with Ramanujam, J., who held that the failure to put these statements to the witnesses and the witnesses not having affirmed their statements -not having stated that they stood by their statements-violated the principles of natural justice. On the face of it, the procedure followed by the enquiry officer is certainly defective and prejudicial to the Respondent herein.
This Court has gone through the findings of the Enquiry Officer dated 18.12.2000. On going through the findings of the Domestic Enquiry Officer dated 18.12.2000, it is evident that on behalf of the Second Respondent/Transport Corporation Management witness M.W.1, Ticket Checking Inspector C.C.D., Pudukottai, has been examined. Also Exs.M.1 to M6 have been marked. On behalf of the Petitioner/workmen witness W.W.1 has been examined(Petitioner/Conductor). Further, Ex.W1 statement of the Conductor has been marked. In the Domestic Enquiry it is not conducted on behalf of the Petitioner/conductor that the concerned passenger to whom passenger had not issued ticket has got into the bus at Trichy. In the spot statement the Petitioner/conductor has refused to sign but the driver of the bust has signed in the statement.
The evidence of M.W.1 before the Domestic Enquiry Officer is to the effect that the passenger has informed him that he has given a sum of Rs. 100/-to the Petitioner/Conductor asking him to give two tickets for proceeding to Trichy to Madurai and after receiving the money the Petitioner/Conductor has received further sum of Rs. 5/-leaving for a sum of Rs. 55/-amount for two tickets has given Rs. 50/-and issued only one ticket Ex.M3 for Rs. 27.50(Rs. 27.50 + 0.50) but not issued another ticket which has been proved from the statement of passenger namely Ex.M5 and that the Inspectors are given another ticket to the passenger for Rs. 27.50. Therefore, it is candidly clear that the Petitioner has issued only one ticket for Rs. 27.50 though he has received an amount of Rs. 55/-for two tickets from group passengers and this shows his intention to misappropriate a sum of Rs. 27.50 which is lawfully due to the Second Respondent/Transport Corporation.
Suffice it for this Court to sustain that the Domestic Enquiry Officer in his findings dated 18.12.2000, has come to the inevitable conclusion that the charges 1 to 3 levelled against the Petitioner/ employee have been proved and they also come under the Model Standing Order 16(C) 16(A) and 16(Y) of the Second Respondent/Transport Corporation.
The Second Respondent/Management dismissed the Petitioner from service as per its order dated 02.08.2001.
As against the dismissal order dated 02.08.2001 passed by the Second Respondent/Management, the Petitioner/employee filed I.D. No. 70 of 2002 on the file of the First Respondent/Labour Court, Trichy and the First Respondent/Labour Court on an appreciation of oral and documentary evidence available on record has come to resultant conclusion that the punishment awarded to the Petitioner is not too harsh and grossly disproportionate to the nature of misconduct and resultantly dismissing the Industrial Dispute without costs. The First Respondent/Labour Court has framed three points determination in the Industrial dispute and has held that the Domestic Enquiry conducted has been fair and proper one adhering to the principles of natural justice and also held that the charges levelled against the Petitioner have been proved and moreover it is held that dismissal of the Petitioner is justified and has not found any reason to modity the punishment awarded by the Second Respondent/ Transport Corporation.
Even though, MW.1 has asked the Enquiry Officer to treat the basic report marked as Ex.M.1 and in the instant case though there is no sworn affidavit in chief by witness M.W.1 yet the request made by him to treat the Basic report as Ex.M1 as evidence in chief and the same being accepted by the Domestic Officer is not a fatal one affecting the conduct of the Domestic Enquiry. It cannot be gainsaid that the Petitioner/Employee was given an adequate opportunity to cross-examine witness MW.1 and he has availed the said opportunity in a proper manner. Therefore, when the Petitioner has been provided with an ample opportunity to cross examine the M.W.1 and has exhausted the same, it is not open to the Petitioner at a later point of time to approbate and reprobate in the matter in issue as opined by this Court.
As far as the present case is concerned, the M.W.1, Enquiry Officer has not deposed about the substance of the complaint. But, however, he has marked his basic report as Ex.M.1 as his evidence in chief and the same cannot be found fault with, in any manner inasmuch as there is no need to repeat like a parrot cry (verbatim) as of the contents of the Basic report.
In Siba Nath Deuri v. Assam State Transport Corporation and Ors. reported in 2003 LLR 427 (Gau) it is held that "Removal of Conductor in allowing 17 passengers to travel ticketless after receiving the fare will be justified, since his conduct amounted to misappropriation of public money and for his personal gain."
In B. Vasudere Naik v. Karnataka State Road Transport Corporation reported in 2003 LLR 454 (Kar) it is held that "setting aside the dismissal of bus Conductor by the Labour Court amounted to misplaced sympathy when he has been guilty of allowing six ticketless passengers to travel despite collecting fair."
It is to be noted that there is a fiduciary relationship between the Petitioner/Conductor and the Second Respondent/Transport Corporation is the employer. The Petitioner has to maintain a confidentiality and also he should not indulge in any act bordering in loss of confidence and fidelity upon him by the employer. He cannot by any means deprive the Second Respondent/Management the amount lawfully due to the employer namely the money(sold ticket being given to the passenger when the tender money). Siphoning of the amount due to the Second Respondent, even though the amount is said to be smaller one is not a relevant of material factor in the consideration of this Court. Already the Petitioner''s past record has been taken into account by the Second Respondent/Transport Corporation and according to the Second Respondent/Management the Petitioner has been punished on twenty occasions earlier in including one action for similar misconduct like the one in the present case. Therefore, looking at any angle the Petitioner cannot be shown any mercy and whatsoever and such the order of dismissal dated 02.08.2001, passed by the Second Respondent/Management is valid and justifiable in the considered opinion of this Court based on the facts and circumstances of the case which float on the surface.
Apart from the above, even the award passed by the First Respondent/Labour Court, Trichy, in I.D. No. 70 of 2002 on perusal of this Court does not suffer from any serious material irregularity or patent illegality warranting any interference in the hands of this Court sitting in writ jurisdiction. Viewed from any angle the writ petition is devoid of merits and consequently it fails.
In the result, the writ petition is dismissed leaving the parties to bear their own costs. Resultantly, the award passed by the First Respondent/Labour Court, Trichy in I.D. No. 70 of 2002 is affirmed by this Court for the reasons assigned in the writ petition.