Pandian Roadways Corporation Ltd. vs Presiding Officer, Principal Labour Court and Another

V. Sirpurkar, J.—The petitioner Pandian Roadways Corporation filed this writ petition challenging the award of the Labour Court, Madurai,

dated December 15, 1992 in so far as it pertains to the order of reinstatement granted by the Labour Court, though, it had found that the

respondent V. Kasi was guilty of having misappropriated the Corporation''s amount.

The factual panorama is somewhat like this. Admittedly, the respondent V. Kasi was working in the petitioner-Corporation for 16 years. He

was working as a conductor and was operating the bus bearing Regn. No. TCP 4237 on the Erode to Devakottai and Madurai route. On

February 15, 1989 while the said bus was proceeding towards Madurai, the Checking Inspector was checking the bus on the Devakottai Road

and when they got into the bus in which the respondent was the conductor for the purpose of checking, they found that the respondent was

attempting to write the invoice hastily. The said invoice was snatched by the Checking Inspector in which the last entry appeared to be that the

respondent had collected money for 3-1/2 tickets for the journey from Devakottai to Madurai. On the passengers being checked, it was found that

there were in all 14-1/2 passengers in the bus out of whom only 11 had the tickets and 3-1/2 passengers did not have the necessary tickets. On

the said passengers being questioned, one of them, viz., Thirunavukkarasu gave out that they gave Rs. 35 to the conductor after boarding the bus

at Devakottai towards the fare and the conductor had given them back Rs. 2.40 having charged Rs. 32.60 for 3-1/2 tickets from Devakottai to

Madurai. The said person insisted that the conductor had not given any tickets much less 3-1/2 tickets to them and that this is how they were found

without tickets. The said statement of the passenger was recorded. The statement of the driver was also recorded and ultimately a domestic

enquiry was ordered against the respondent who was suspended on February 23, 1989.

After obtaining his explanation, the domestic enquiry was conducted in which the statement recorded by the Checking Inspector from

Thirunavukarasu, the statement of the driver and the statement of the respondent, etc., were relied on. Not only this, the Checking Inspector

himself was also examined. As a result of the enquiry, the Enquiry Officer came to the conclusion that the respondent had misappropriated Rs.

32.60 by not giving the tickets to the passengers when he had taken the amount from those passengers towards the fare between Devakottai to

Madurai. The said Enquiry Officer also concluded that the respondent had tried to hastily write in the invoice and in that process, he could only

write part of the entry and therefore, concluded that the respondent was guilty of the charge framed against him. Thereafter considering the past

record of the respondent which showed the previous punishment for the same irregularity, the respondent was ordered to be dismissed from

service.

The matter was taken to the Labour Court and the Labour Court framed four issues before it, the first issue being regarding the nature of the

enquiry, ultimately, the Labour Court came to the conclusion on the basis of the evidence let in before it that the enquiry itself was held coping up

with the rules of natural justice since all the opportunities were given to the respondent during enquiry. It has discussed the correctness of the

finding of the Enquiry Officer and has put the seal of approval on this finding. The Labour Court seems to have gone into the whole enquiry

threadbare, perused all the statements as also perused the evidence let in before the Enquiry Officer by the Checking Inspector and has come to

the conclusion that the enquiry was good and that the findings were also justifiable. It was tried to be shown before the Labour Court on behalf of

the conductor/respondent that the findings themselves could not be correct for the simple reason that the passenger who was found to be without

ticket was not examined before the Enquiry Officer and what he had said was incorrect. It was tried to be suggested by the respondent that in fact,

3-1/2 passengers had entered the bus not at Devakottai but, in the midst of a place called Amaravathiputhur and there was a dispute between the

passenger and himself whether they were liable to pay 3-1/2 tickets or 3 tickets and in that dispute tickets remained to be given. The Labour Court

has gone into the merits and demerits and found that the said defence was not worth noting and obviously was false. The Labour Court has found

out that the tickets were due to be given at Devakottai only and there was no question of stopping at Amaravathiputhur. The Labour Court has

also stated by looking into the evidence threadbare that the contention of the conductor that there was a dispute between the passenger and himself

was itself not justified and that it was clear that the conductor had failed to issue tickets. It is also significant to note that before the Checking

Inspector, the conductor himself in his statement has admitted that 3-1/2 passengers were found without tickets. On the basis of this, the Labour

Court came to the conclusion that the factual findings recorded by the Enquiry Officer were correct and that the enquiry was also conducted in a

proper manner by giving proper opportunity to the respondent at all stages. There is also a detailed reference to the notice served on the

respondent and the reply which the respondent has given in pursuance of the notice.

Lastly, however, the Labour Court came to the conclusion that though the charges were properly framed and proved before the Enquiry

Officer, and though, the respondent was guilty of the misconduct for misappropriation of Rs. 32.60 yet considering the fact that for the last seven

years, he had behaved properly and there was no complaint against him, he deserves to be reinstated in service. It was pointed out before the

Labour Court that the service record of this employee was black and blue inasmuch as he has suffered suspension and also suffered punishment of

stoppage of one increment for a period of three months. Labour Court has also noted that the respondent has denied the fact that he was so

punished by the Corporation for his misconduct in the past. The only reason as to why the Labour Court awarded reinstatement appears to be that

the petitioner has served the Corporation for 16 years and there was no charge against him for the past seven years. Using this singular

consideration, the Labour Court has awarded reinstatement granting him the relief u/s 11-A of the Industrial Disputes Act.

Learned counsel appearing on behalf of the petitioner Corporation has seriously challenged this portion of the award. It is significant to note

firstly that the finding regarding the guilt has not been challenged by filing an independent writ petition. However, learned counsel for the respondent

very seriously tried to support the judgment by suggesting that the findings themselves were wrong; it has been wrong on merits. Now, it will not be

proper for this Court to go into the merits or demerits of the factual findings at this stage. Even if the factual findings are to be considered, the

findings are absolutely correct. The only criticism that was levelled by the learned counsel for the respondent is that though the passenger''s

statement was recorded, in fact, the said passenger could not read and write and that he was not examined and cross-examined at the enquiry. In

the first place, it is not necessary for the said passenger to be produced for cross-examination and there is approval of the Supreme Court to this

proposition in State of Haryana and Another Vs. Rattan Singh, wherein not only was that ticketless passenger was not examined, but his statement

was also not recorded. The Apex Court has found that in the domestic enquiry, strict and sophisticated rules of evidence do not apply. All

materials which are logically probative for a prudent mind are permissible and that there is no allergy to hearsay evidence provided it has a

reasonable nexus and credibility. In this case, the statement of the conductor/respondent itself suggests that 3-1/2 passengers in the bus were

without any tickets. It is also accepted by him that the entry was not complete. The only defence being that there was dispute between him and the

passenger and he did not have time to complete the entry. The explanation is obviously incorrect as there was no rush in the bus and there were

only 14-1/2 passengers, all of them having boarded at Devakottai. Even the driver of the bus does not subscribe to the view that the bus had

stopped at Amaravathiputhur. Therefore, the defence of the conductor that he had no time to complete the entry and give the ticket has to fail on

its own. Once there is admission statement and once there is clinching evidence of the Checking Inspector who were examined at the enquiry and

allowed to be cross-examined supporting the prosecution theory, there is no question of there being any incorrectness about the finding on merit.

However, as regards the punishment the learned counsel for the petitioner very severely opposed the award on the basis of the Supreme Court

decision in U. P. State Road Transport Corporation v. Basudeo Chowdhury, 1997 (2) SCC 370. Learned counsel for the petitioner drew my

attention to the fact that this was a similar case where the conductor failed to give tickets and had tried to misappropriate the amount which in fact

belonged to the transport Corporation. The Supreme Court in paragraph 4 has put a stamp of approval in the following words:

The misconduct that was found established was thus serious in nature and the Labour Court has rightly upheld the punishment of removal from

service that was imposed on the petitioner. The High Court was in error in interfering with the award of the Labour Court and in substituting the

penalty of censure for removal from service on the view that there was only an attempt to cause loss of Rs. 65 to the Corporation and the action of

the Corporation terminating the services of the petitioner was not justified.

Following this judgment, similar view was taken in W.P. No. 7792 of 1993 in which this Court (myself) following the Division Bench judgment

in B. Govindarajulu Vs. The Management of K.P.V. Shaik Mohamed Rowther and Co. (P) Ltd. and Another, , wherein the Division Bench had

deprecated the action on the part of the Labour Court to reward reinstatement to such an erred conductor. This decision applied on all fours to the

present situation. The Labour Court had to give a finding regarding the quantum of punishment and for that it had to appreciate the nature of the

misconduct, its effect, the appending circumstances under which the misconduct has been committed, and other allied factor as to whether the

misconduct was because of the ordinary human weakness and as to what was the record of service of the person who engaged himself in such

misconduct. The award does not show any such comparison having been made. Beyond expressing its firm opinion on a singular act that the

respondent/conductor had not committed any misconduct for the last seven years and he had put in 16 years of service, the Labour Court had shut

its eyes to the earlier misconduct which was repetitive in nature. The decision in Pandian Roadways Corporation Vs. Presiding Officer, Additional

Labour Court and Another, and are almost similar in nature. The Court does not think therefore, that the Labour Court was right in awarding

reinstatement as it did in paragraph 18 of its order. Instead, I am of the firm opinion that the punishment of dismissal was well justified. The award

is modified to that extent and the grant of reinstatement set aside.

It is reported that in pursuance of the award, the said conductor had served after he was reinstated and he is still in the service of the

Corporation. If any salary paid to him during that period that shall not be interfered with as he had worked during that period. However, the Court

restores the punishment of dismissal which was ordered against him by the concerned authorities by the Transport Corporation. The petition stands

allowed in the light of the above observation. No costs. Consequently, W. M. P. Nos. 12276 and 27174 of 1993 are dismissed.