Maharashtra State Road Transport Corporation Vs Bhimarao Ganpatrao Gundle

@JUDGMENTTAG-ORDER

B.H. Maralapalle, J.@mdashOn March 11, 1980 the respondent was on duty as a conductor for Bus No. MTB 2411 going from Jintoor to Nanded The said bus was checked by the flying squad of the petitioner-Corporation near village Mandhani and it was found that one group of 12 adults and 8 minors and another group of two adults and one minor passenger was without tickets. Both the group of passengers stated that they had handed over money for the bus tickets to the respondent-conductor and he did not issue them tickets. The statement of first group leader by name Ms. Mankarnibai as well as the second group leader Shri Gorakhnath was recorded and both of them stated that they had paid the money to the respondent- conductor and he did not issue tickets. The respondent-conductor gave an explanation that as there was a heavy rush due to Bazaar day and the bus was crowded, he could not issue the tickets and the amount tendered was short and the tickets were to be issued only after the full amount of ticket was received by him. This explanation was not accepted by the petitioner-Corporation and therefore, charge sheet dated April 25, 1980 was issued against the respondent levelling charges of misconduct under Clauses 7(a), 7(c), 12(b) and 35(b) of Schedule A of the Discipline and Appeal Procedure (Approved Service Rules of the Corporation).

2. A Departmental Enquiry was instituted against the respondent and simultaneously he was suspended by an order dated May 6, 1980. He submitted reply to the charge-sheet on May 16, 1980 and the enquiry was completed on July 14, 1980. A second show cause notice dated July 17, 1980 came to be issued which was replied by the respondent on August 12, 1980. The reply given to the second show cause notice was not found to be satisfactory and taking into consideration the seriousness of the charges proved as well as the past service record of the respondent-employee, the Corporation issued an order of dismissal on. September 9, 1980. The employee preferred'' first appeal and the same came to be decided and rejected on November 18, 1980 and the second appeal met the same fate by order dated March 19, 1981. He therefore, raised an industrial dispute for a demand of reinstatement with continuity in service with full back wages. The said demand came to be referred for adjudication by the Labour Court at Aurangabad in Reference I.D.A.O No. 7/87 under the provisions of Sections 10(1)(c) and 12(5) of the Industrial Disputes Act, 1947.

3. The petitioner-Corporation opposed the claim by filing a written statement and contended that not only the charges proved against the employee were of serious nature but also past service record of the said employee was far from being satisfactory and, therefore, it was not a fit case to say that the order of dismissal amounted to shockingly disproportionate punishment.

4. On considerations of the oral and documentary evidence and the arguments advanced by the respective parties, the learned Judge of the Labour Court held that (a) the domestic enquiry conducted against the employee was fair and proper and was in consonance with the principles of natural justice, (b) the findings recorded by the Enquiry Officer could not be dubbed as perverse, (c) the order of dismissal could not be said to be proper or legal and (d) the punishment awarded by the Corporation was shockingly disproportionate to the charges proved. By this award dated August 20, 1987 the learned Judge of the Labour Court allowed the reference and directed the petitioner-Corporation to reinstate the employee giving continuity of service and full back wages from September 11, 1980. This award has been brought in question in the instant writ petition and by an order dated February 18, 1980 a Division Bench of this Court while admitting the petition had granted stay to the impugned award, as a result of which the award has not been implemented and the respondent-employee is not reinstated till this date.

5. Shri Karlekar, learned counsel appearing for the petitioner submitted that the findings by the Labour Court that the punishment of dismissal was shockingly disproportionate to the nature of the charges proved are erroneous if regard be had to the nature of the charges as well as the past record of the concerned employee and that the reasoning in support of this finding is not sound. The learned Judge of the Labour Court observed in the impugned award that none of the passengers who were found to be ticketless were examined, the explanation given by the employee was not properly turned down by giving cogent reasons and the said explanation was satisfactory. The learned Judge further observed that though the Corporation had issued a circular directing the bus conductors to issue tickets first and then start the bus was in operation, it was very difficult to follow this rule specially when on a Bazaar day, the bus was over crowded with about 97 to 98 passengers. iF any case even if it was held that the employee failed to comply with this circular, the punishment for such a failure cannot be an extreme punishment of dismissal from service and, therefore, the order of punishment required interference, observed the learned Judge.

6. The learned counsel for the petitioner relied upon the following judgments of this Court:-

i) The Divisional Controller, Maharashtra

Divisional Controller, M.S.R.T.C. Chandrapur Vs. Giridhar Raghunath Derkar, .

ii) Pandurang Kashinath Wani v. Divisional Controller, M. S. R. T. C., Dhule, 1296 I LLJ 540 (Bom).

iii) Maharashtra State Road Transport Corporation Vs. Sharafat Ali Gulam Ali Sayyed, .

7. Shri Godhamgaonkar, learned counsel appearing for the respondent-employee has Supported the impugned award and submitted that the learned Judge of the Labour Court has rightly invoked his discretion u/s 11-A of the Industrial Disputes Act and no interference is called for in the said order by this Court under its supervisory powers under Article 227 of the Constitution of India. He submitted that the circumstances prevailing namely that it was a bazaar day and the bus was over crowded and amount of fair was short, justify the finding that the punishment of dismissal was shockingly disproportionate to the charge proved against, the employee. He placed reliance on the judgment of the Karnataka High Court in the case of Karnataka State Road Transport Corporation v. B. M. Patil, 1996 II LLJ 536 (Kan) and in the case of N. Chinnaiah Vs. The Depot Manager, APSRTC and Another, . The learned counsel also urged that the employee would reach the age of superannuation some time in the year 2001 and he had joined the employment of the Corporation in the year 1968. By the time he was removed from, service he had put in about twelve years of service and, therefore, taking into consideration these factors, in addition to the reasoning given by the Labour Court, the award impugned deserves to be confirmed.

8. It is well established that Section 11-A of the Industrial Disputes Act, empowers the adjudicator under the said Act to substitute or mould the punishment meted on the employee by the employer in certain cases and these are discretionary powers to be invoked in the facts and circumstances of each case. When such powers are being invoked, the adjudicator is required to examine the connected parameters namely the nature of the charge proved, the length of service of the employee and the past service record etc. In the case of Divisional Controller M.S.R.T.C 1995 III LLJ(Supp) 462 (SC) (supra), this Court was dealing with a similar case of a conductor who was dismissed from service for a similar charge and the order of dismissal was set aside by the Labour Court. This Court considered the judgments of the Supreme Court in the case of Baldev Singh v. Presiding Officer, Labour Court, Patiala, 1995 III LLJ (Supp) 462, Scooters India Limited Vs. Labour Court and Others, , a judgment of the Gujarat High Court in the case of Gujarat State Road Transport Corporation Vs. Danaji Sukaji Kodiyar, and also a judgment of this Court in the case of Sudhakar Haribhau Dadhe v. Presiding Officer, 2nd Labour Court W.P. No. 976/1985 and held that the award of the Labour Court could not be sustained considering the service career of the employee concerned. The employee had started engaging in misconducts in short span of one year of service and he was punished by imposing fine on two occasions and in spite of such past instances, he did not improve and again committed the misconduct of carrying 22 passengers without tickets. This Court held that the Labour Court had committed serious error in holding that the punishment of dismissal was shockingly disproportionate. In the case of Pandurang Wani (supra) this Court held that there was no violation of principles of natural justice if the statements recorded of the witnesses when the bus was checked were used as evidence and the passengers were not examined in the domestic enquiry. It was further held that when a bus conductor is held guilty of issuing used tickets and not issuing tickets after collecting fair, the order of dismissal was justified. Same view has been again reiterated in the case of M. S. R. T. C. Jalgaon (supra).

9. In the instant case it is concluded by the Labour Court that the enquiry conducted against the employee was proper and it was not vitiated on any count, in addition the charges levelled against the employee were duly proved. In para 15 of its written statement the petitioner-Corporation had submitted before the Labour Court that the past record of service of the employee was very bad and on several occasions, he was punished by way of warning, fines and stoppage of increments etc. but he did not improve his conduct and the employee was a habitual defaulter and, therefore, he did not deserve any mercy. The award is totally silent regarding the past record of service. From the original record submitted, it is clear that by an order dated February 9, 1973, the employee was suspended as he was involved in serious pilferage cases. By order dated July 26, 1973 he was dismissed from service and pursuant to the resolution of the Corporation dated October 29, 1977 he was reinstated without continuity in service and admittedly this was a fresh appointment. By an order dated April 1, 1980 he was imposed punishment of stoppage of three increments for similar acts of misconduct which had reportedly taken place on February 14, 1980. This service record clearly goes to show that the employee was punished for similar acts of misconduct of serious nature and he was offered multiple chances for showing improvement. His reinstatement in 1978 was a fresh appointment and it was informed that the past service could not be taken into consideration for any purpose.

10. Section 11-A of the Industrial Disputes Act, confers powers on the Labour Court, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. It provides that where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and in the course of adjudication proceedings, such Court or Tribunal as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may by its award set aside the order of dismissal and direct reinstatement of the workman on such terms and conditions if any as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. On the basis of the material on record, the Labour Court or the Tribunal is empowered to pass an appropriate order u/s 11-A of the Industrial Disputes Act.

In the case of Rajasthan State Road Transport Corporation v. Mool Singh, 1995 LIC 771 (Raj), when the bus of the petitioner-Corporation was checked on October 27, 1983, fourteen passengers were found travelling without ticket and from 12 out of the said 14 passengers, the respondent-conductor had already recovered fair but did not issue tickets. Consequent to the enquiry conducted against the conductor he was removed from service by an order dated September 20, 1984. In a reference for adjudication the Labour Court on considering the material on record came to the conclusion that he was guilty of the charge but by considering the punishment of removal from service being disproportionate, the employee was reinstated in service. The Division Bench examined the issue as to whether the learned Judge of the Labour Court had exercised the discretion u/s 11-A of the Industrial Disputes Act, rightly and observed in para 13.

"In the instant case, after perusing the impugned award carefully and having given our earnest consideration to the rival contentions advanced at the Bar, we are of the view, that the learned Judge, Labour Court has committed error in reinstating the workman as the reasons on the basis of which he has reinstated the workman even when he has himself found the workman guilty of the charge of misconduct are not convincing. It is true that in writ jurisdiction the award passed by the Labour Court cannot be interfered with unless there is any error apparent on the face of record or the findings arrived at are perverse and arbitrary. It may be noted in the present ease that the Labour Court has found the workman guilty of the charge of misconduct levelled against him which has been upheld by us as discussed above but still the learned Judge has reinstated the workman which should not have been granted under the peculiar facts and circumstances of the given case as the charge of misconduct and misappropriation stands on a different footing."

11. The discipline and appeal procedure as framed by the petitioner-Corporation sets out the punishment of discharge or dismissal in Clause 7 for the acts of misconduct as set out under Clauses 4, 7(a) to (j), 12(a) and (b), 39 and 42 of Schedule A to the said procedure. Once it is held that the respondent-employee was guilty of the misconduct under Clauses 7(a), 12(b) and/or Clause 35(b) of the discipline and appeal procedure the order of discharge or dismissal follows. In the instant case the prevailing circumstances at the relevant time namely the bazaar day and the bus being over crowded could have come to the rescue of the employee if it was his case that he had not received the ticket fair and the tickets were not issued to the passengers concerned. Having received the fair for the tickets, he could not take a stand that it was impossible for him to issue the tickets to the concerned passengers due to the rush of passengers in the bus. Even in his spot statement recorded by the checking squad, he conceded that the lady who was a group leader had given him the amount and he did not issue the tickets. It is only in respect of second group that he said that even after receipt of the money he could not issue tickets because the money tendered was less than the amount of the fair.

12. If the learned Judge of the Labour Court has exercised his discretion u/s 11-A of the Industrial Disputes Act, without considering the past record of service of the employee and if the said record of service is far from being satisfactory, this Court would be justified in interfering with such an order of reinstatement. There was sufficient material before the Labour Court to show that the past record of service of the employee was manifestly unsatisfactory and he was punished on several occasions for similar acts of misconduct. The learned Judge also did not give any reason as to why he held that the punishment of dismissal was disproportionate to the charge of misconduct proved against the employee. It is well established that the Labour Court should not mechanically use the words "punishment being disproportionate to the charges." The Labour Court is required to give reasons as to how the punishment is grossly disproportionate. The discretionary powers cannot be equated with the power of veto. Once the Labour Court evaluates the gravity of misconduct and considers the past record of service, it is true that the order of the Labour Court modifying the order of punishment or moulding the relief u/s 11-A of the Industrial Disputes Act, should not be interfered by this Court. But such is not the case at hand. The award impugned therefore, suffers from gross errors manifest on the face of the record and the award setting aside the order of dismissal by granting reinstatement with full back wages and consequential benefits cannot be sustained in the facts and circumstances of this case. A recent judgment of the Supreme Court in the case of U.P. State Road Tpt. Corpn. and Others Vs. Musai Ram and Others, supports this view.

13. In the result, the writ petition is allowed and the impugned award passed by the Labour Court in Reference. I.D.A. No. 7/83 is hereby quashed and set aside.

14. Rule made absolute accordingly with no order as to costs.