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Judgment
K.P. Sivasubramaniam, J.—The management of the Transport Corporation seeks for the issue of a writ of certiorari to quash the award of
the Labour Court in I.D. No. 44 of 1995 dated 26.10.1995.
According to the management/petitioner, the respondent was employed as a Conductor in the Corporation. He had joined the services of the
Corporation on 6.1.1975 and was confirmed as a permanent worker on 1.11.1977. The past record of the worker was thoroughly unsatisfactory
and he has been punished for misconduct on several occasions. On 8.5.1994 he was on duty in the bus proceeding from Ooty to Palani. After the
bus had travelled from Mettupalayam to Theerampalayam, the bus was checked at Theerampalayam. The Checking Inspector found that two
passengers who got down did not have tickets, though fare had been collected from them. Another passenger proceeding from Mettupalayam to
Pugalur also did not have ticket though fare had been collected from them. Two more passengers who were travelling from Mettupalayam to
Tiruppur did not have tickets and no fare had been collected from them. The Conductor did not have any proper explanation and he was enquired
in the presence of the Driver. A statement was prepared and both the petitioner and the Driver had signed the statement without any protest.
A show-cause notice was issued to the petitioner. In his reply, the petitioner admitted his misconduct, but pleaded an excuse that five
passengers in question had entered into the bus from the front entrance and he had overlooked giving the tickets to them. The said explanation was
found not satisfactory, and the management after due enquiry and considering the past conduct , dismissed the employee from service.
The Labour Court found that there was no proof of the allegation that the employee had received the fare from the passengers. The Labour
Court further found that the quantum of loss was only Rs. 4.90. With the result, the Labour Court came to the conclusion that the punishment was
disproportionate and the management was directed to reinstate the employee and awarded 50 per cent backwages. Hence the above writ petition
by the management.
Learned counsel for the petitioner contends that the entire approach by the Labour Court was perverted. A perusal of the order itself would
disclose that the employee did not question either the validity of the enquiry or the findings rendered thereon in the enquiry proceedings. The only
issue which was raised was the quantum of punishment. That being so the Labour court was not justified in considering the evidence and rendering
a finding as though the misconduct had not been established in the enquiry. The employee had also suffered more than 20 earlier punishments and
considering the same, the Labour Court ought to have confirmed the dismissal order. Learned counsel also referred to various judgments in
support of his contention that the quantum of loss actually incurred by the Corporation was not the determinative factor and when once the
misconduct of misappropriation is made out, the management is justified in terminating services and that the Labour Court ought not to have
interfered with the quantum of punishment. The nature of the delinquency was such that no sympathy was warranted and the Labour Court
unfortunately had adopted an attitude of misplaced sympathy.
Mr. D. Hariparanthaman, learned counsel for the petitioner however, contends that there was no proof of the Conductor having received any
money for the fare from the passengers or having misappropriated the said amount. Even in terms of the evidence, at the most, the employee can
be held guilty of negligence only in not issuing the tickets. That was purely due to the circumstance that the bus was over-crowded and that in order
to keep up the timing, the Conductor could not stop the bus before the vehicle reached the stage. The bus has two entrance gates. Before the
employee could reach one of the two entrances, the Checking Staff had boarded the bus at the first stage and had collected the ticket book for
verification. The two passengers who got down at the stages did not possess tickets for their travel. Two more passengers were in the bus without
tickets for their travel and they were going to Tirupur. The Checking staff had issued tickets and collected the fare from the passengers. The
second stage was within four kilometers from Mettupalayam. The issuance of the tickets was delayed only due to overcrowd and it was beyond
the reach and control of the employee.
Learned counsel further contends that no case has been made out for sustaining a charge under Clause 16(c) of the Model Standing Orders.
Learned counsel further contends that no statement had been recorded from passengers and therefore, the employee did not have the
opportunity to cross-examine the witness.
I have considered the submissions of both sides. A perusal of the impugned award discloses that the employee had not questioned the validity of
the enquiry, nor has he questioned the findings rendered by the Enquiry Officer. The following extract in the award of the Labour Court discloses
the scope of the enquiry:-
@kDjhuh; elj;jg;gl;l cs; tprhuizg;gw;wp kDtpy; Fiw TwpapUe;jnghjpYk; kDjhuh; kPJ elj;jg;gl;l cs;tprhuiz rl;lg;goa[k;. , aw;if epajpg;goa[k; elj;jg;
gl;ljh vd;gij Kjd;ik gpur;rpidahf vLj;Jf;bfhz;L thjpltpy;iy. MtUf;F mspf;fg;gl;l jz;lid kpf mjpf jz;lid vd;W thjplg;gl;lJ/ vdnt. , t;tHf;fpy; jPh;khdpf;fg;gl
ntz;oa gpur;rpidfs; vd;dbtdpy;.
1/ kDjhuh; gzp ePf;fk; bra;ag;gl;l rl;lg;go rhpahdjh>
2/ kDtpy; nfhhpago kDjhuUf;F ghpfhuk; fpilf;ff; Toajh>@
The above extract clearly shows that neither the validity of the enquiry nor the findings against the employee was called in question and the only
issue which was argued was the proportionality of the punishment. That being so the approach of the Labour Court in having gone into the merits
of the evidence and finding by the Enquiry Officer cannot be sustained. It is also seen that the Labour Court had recorded the admission by the
employee himself that no tickets have been issued for five passengers. But the Labour Court would proceed further to state that no reliance can be
placed on the statement of the Checking Inspector alone to come to the conclusion that the employee had misappropriated the amount and that
such a conclusion was only a surmise. The Labour Court has proceeded further to state that the loss to the Corporation was only Rs. 4.90 and that
there was no warrant for dismissal of the employee from service. As regards the past conduct, though the Labour Court had taken into account the
fact that the employee had been subjected to punishment on 20 earlier occasions, strangely, the Labour Court had observed that the employee had
been punished ""only for 20 occasions"" which is an unpleasant and shocking observation to come from a Judicial Officer rendering enforcement of
law and honest living a mockery. Such observations are bound to demoralise honest conductors and employees. Not stopping there the Labour
Court had proceeded further to make shocking observations as though the management was responsible for the misconduct of the Conductor due
to the circumstance that the bus was over-crowded and that it was therefore not possible for the employee to issue tickets for all the passengers.
The attempt on the part of learned counsel for the employee to make it appear as though the failure was only due to over-crowding, cannot be
sustained. It is the duty of the Conductor to see to it that all the passengers are issued with tickets and the proper fare is collected from them. It is a
common practice that if it was not possible to issue tickets/collect fares before the bus reaches the next stage, the bus would be stopped sufficiently
before the stage and will proceed further only after collecting the fare from all the passengers and after issuing tickets. Therefore, the contention
that the vehicle was over-crowded and that the Conductor in order to keep up the timings, had to reach the next stage, cannot at all be accepted.
The Conductor holds a very unique position in the functioning affairs of the Transport Corporation and if such defaults can be allowed to
continue, no public Transport Corporation can run in profit, much less avoid huge loss.
The attempt on the part of learned counsel for the petitioner to plead that there was no loss to the Corporation in not having issued tickets
cannot at all be sustained. Even it be assumed that the Conductor had not received any fare from the passengers, the loss to the Corporation
cannot at all be disputed considering that five passengers are let off without being required to pay for the tickets and not collecting the fare from
them.
The observation of the Labour Court in throwing the blame on the management is very unfortunate and reflects absolute judicial perversion
which even the employee will not dare to raise. The Supreme Court as well as this Court have repeatedly held that in charges relating to the
misappropriation especially in the case of Conductors employed in the Transport Corporation, the quantum of loss to the Corporation is really
irrelevant. It is the conduct which has to be viewed seriously. In the present case, this is not the first occasion when the employee was found guilty.
He has been subjected to previous punishments of 20 times out of which at least 10 of the charges relate to non-issue of tickets or issuing tickets of
lesser denomination after having received maximum fare.
Therefore, I am inclined to hold that the directions to the Corporation to reinstate such an employee in service cannot at all be sustained. From
the point of view of the Corporation, it will not be in their interest to keep him under their employment considering the repeated conduct of
misappropriation by the employee. That being so interference with the order of dismissal and also gifting 50 per cent of the backwages, is totally
unjustified.
Though learned counsel for the petitioner made references to various judgments, I am inclined to hold that the said judgments have no
relevance to the facts of the present case. While dealing with the issue of non-examination of the passengers, reference is made to a judgment of
this Court in JEEVA TRANSPORT CORPN. LTD. v. P.O., I.T. 2002(2) L.L.N., 704. That was a case in which a witness who was examined
on the side of the worker was not cross-examined. In this case apart from the fact that the management witness had been cross-examined by the
petitioner, it is only the petitioner/employee who had deposed himself as a witness. In his oral evidence, the petitioner/employee does not dispute
the fact the tickets have not been issued to the passengers.
Reliance was placed on the judgment of N.V. Balasubramanian, J. in CHERAN TRANSPORT CORPN. LTD. v. P.O., L.C. 1999 (3)
L.L.N. 329. In that case, the non-issuance of ticket to one passenger was proved, but the explanation of the Conductor in respect of other charges
were not considered and the learned Judge held that the dismissal from service was disproportionate to the charge which was established.
Reference was made to the judgment of the Supreme Court in SRI GANAPATI BUS SERVICE v. LABOUR COURT 2001 (1) L.L.N.,
In that case, the Labour Court did not try the question as to whether the enquiry was valid and proper as a preliminary issue and no
opportunity was given to the employer to lead evidence in support of the charges. However, the Labour Court found that the enquiry was proper
and valid. On the facts of the case, the Supreme Court held that not trying the question as a preliminary issue had not prejudiced the employer in
any manner and the award of the Labour Court ordering reinstatement was confirmed.
In that case, the employee had not taken the stand conceding the legality and fairness of the enquiry, nor has he restricted the scope of the
enquiry before the Labour Court only to the quantum of punishment. On facts also as already stated, the petitioner has suffered at least 20
punishments towards past misconduct and therefore, there is no comparison on the facts of the said case.
Learned counsel for the management rightly refers to the judgment of a Division Bench of this Court in KASI v. PANDIAN ROADWAYS
CORPN. LTD. 2003 (2) L.L.N. 642. The Division Bench after holding that the Conductor was guilty of not issuing tickets to three adults and a
child though fare has been collected from them, and the Labour Court had held that the misconduct was not proved and had directed
reinstatement, the Division Bench agreed with the order of the learned single Judge quashing the award. The Division Bench took note of the
various judgments of the Supreme Court observing that it would be misplaced sympathy by the Labour Courts in such cases where it was found
that the bus Conductors have either not issued tickets or had issued tickets of a lower denomination, knowing fully well the correct fare to be
collected. They are working in a fiduciary capacity and it would be a case of gross misconduct if they knowingly do not collect any fare. Therefore,
for the aforesaid reasons, I am not inclined to sustain the award of the Labour Court in a case of this nature where the delinquent''s misconduct
appears to be chronic.
In the result, the writ petition is allowed and the award of the Labour Court is set aside restoring the order of dismissal as ordered by the
management. No costs.