Rajasthan S.R.T.C. Vs. Kamruddin  INSC 1032 (12 May 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. __3485______OF 2009
[Arising out of Special Leave Petition (Civil) No. 6195 of 2006] DIVISIONAL
MANAGER, RAJASTHAN S.R.T.C. ...APPELLANT VERSUS
S.B. Sinha, J.
of interference with the quantum of punishment imposed by an employer on a
delinquent employee by the Labour Court in exercise of its power under Section
11A of the Industrial Disputes Act, 1947 (for short, "the Act") is in
question in this appeal which arises out of a judgment and order dated
16.11.2005 passed by a Division Bench of the Rajasthan High Court, Jaipur
said question arises in the following factual matrix:
Respondent herein was
appointed as a conductor by the appellant - corporation on or about 6.8.1982 as
a daily wager for a specific period on the expiry whereof his services came to
He was, however,
appointed as a conductor on probation for a period of two years by an offer
dated 26.3.1983, inter alia, on the terms and conditions laid down therein; the
relevant claim whereof reads as under:
"4. That on
being caught by the inspection team and on finding corruption their services
could be terminated at any time and the security amount would be seized."
3 Within the
aforementioned period of probation, inspections were carried out in the buses
in which he had been discharging his duties as a conductor and on not less than
five occasions, i.e., on 4.4.1983, 11.5.1983, 23.9.1983, 21.11.1983 and
8.2.1984, he was found to have not issued tickets to the passengers.
Indisputably, on or about 19.4.1993, in relation to the incident which took
place on 4.4.1983, a warning was administered to him, stating:
"You were on
duty on date 4.4.83 in the vehicle no. 6070 at the Vayavar Udaipur road.
After the inspection
of the vehicle it was found that you were carrying 2 passengers without
tickets. The Checking staff collected the fare from the same and issued the
Therefore, you are
hereby warned to be careful in the near future otherwise your probation period
would be terminated."
After he was found
guilty of having not issued tickets to the two passengers and carrying 180
kilograms luggage without a ticket, a disciplinary proceeding was initiated
against him. He was placed under suspension.
4 The fairness of
the disciplinary enquiry is not in question. By reason of an order dated
15.6.1984, the Divisional Manager of the Corporation being the Appointing
Authority terminated his services, stating:
"On the basis of
the complaints received against Shri Kamruddin S/o Shri Sikandar Khan,
Conductor, Vayavar Depot he was suspended vide the Office Order No. 395 dated
13.2.84 and was issued the Charge sheet no. 404 dated 24.2.84. In respect of
the inquiry of the imposed charges the Divisional Depot Manager, Ajmer was
appointed the Inquiry Officer vide the Office order no. 581 dated 3.3.84.
After completing the
inquiry by the Inquiry Officer the enquiry report was produced. I have
carefully gone through the same along with the available record. The Inquiry
Officer has found the conductor guilty of the imposed charges. I fully agree
with the view of the Inquiry Officer.
Divisional Manager, RSRTC, Ajmer, impose the following punishment under Section
36(5) and (7) of the Standing Orders on Shri Kamruddin s/o Shri Sikandar Khan,
Conductor, Vayavar Depot after finding him guilty in the aforesaid case.
1. I seize the
remaining salary of the suspension period in the interest of the Corporation.
1. I terminate his
probation period after removing him from the services of the Corporation with
raised an industrial dispute. By reason of an Award dated 16.7.1996, the Labour
Court despite finding that the enquiry was fairly conducted opined that the
punishment inflicted on the respondent was disproportionate to the gravity of
the misconduct committed by him, stating:
would not be just and proper to impose the severe punishment of the termination
from the service but keeping in view the proved misconduct on the part of the
applicant this court could amend the penalty keeping in view the provisions of
Section 11(A) of the Industrial Disputes Act and as per the facts and
circumstances of the case it would be just and proper that the punishment of
the stoppage of two grade increments with cumulative effect be awarded and the
same would be made effective from the date of inspection i.e. 8.2.84 and
further that the applicant would not be entitled of the back wages. That he would
be reinstated in the service in continuation of his service as if he has not
been terminated from the service of the corporation.
Award is passed."
In support of its
aforementioned finding, the Tribunal relied upon a decision of the Rajasthan
High Court in RSRTC vs. Shri Ram Yadav [1995 (3) WLC 16] as also the decision
of this Court in Rajasthan State Road Transport Corporation vs. Bhagyo Mal
& Ors. [1994 Supp (1) SCC 573].
writ petition preferred thereagainst by the Corporation has been dismissed both
by a learned single judge. A Division Bench of the High Court by reason of the
impugned judgment dismissed an intra-court appeal preferred by the appellant.
Sushil Kumar Jain, learned counsel appearing on behalf of the appellant would
contend that in a case of this nature where the respondent has been found
guilty of commission of a misconduct of misappropriation, no interference with
the quantum of punishment was warranted.
B.K. Satija, learned counsel appearing on behalf of the respondent, on the
other hand, would contend that this Court should not interfere with the
impugned judgment as imposition of the punishment of dismissal from service
having regard to the guidelines issued by the Corporation itself was wholly
disproportionate to the charges of misconduct framed against the respondent.
Learned counsel in this connection would draw our attention to the statement
made in the counter affidavit, which reads as under:
respectfully submitted that the Corporation in number of standing orders has
taken decision in regard to awarding financial punishment, where the Conductor
is carrying the passengers without ticket. Operative Portion of Section 36 of
standing order is reproduced hereunder for ready reference:
'36. One or more of
the following penalties may, for good and sufficient reasons, be imposed on a
worker by a competent authority; penalties from (v) to (vii) shall be
appealable- 7 (i) Censure:- Three censures in a period of one year will
involve withholding of one increment.
(ii) Withholding of
increments or promotion.
(ii) Recovery from
pay/wages of the whole or part of any pecuniary loss caused to the employer by
negligence or breach of any law.
(ii) Fine upto 2% of
(ii) Forfeiture of
wages during the period or of suspension.
(ii) Reduction to a
lower post or grade.
(ii) Termination of
service, which shall not be a disqualification for future employment.
(ii) Dismissal from
service which shall be disqualification for future employment.' It is
respectfully submitted that the petitioner Corporation has issued number of
semi Government order, where the decision to impose financial punishment was
decided by the Corporation and the cases pertaining to traveling without ticket
were settled imposing financial punishment upon the employee/workman."
attention was also drawn to a corrigendum issued on 24.7.1982, the relevant
portion whereof reads as under:
" Recently circular
No. 625 dt.05.06.1982 was issued by the General Manager for charge of 8 full
route fare from the without ticket passengers, because correct information
regarding journey undertaken was not being provided by the passengers as well
as by the conductors to conceal fraudulent activities.
During the last
meeting of the Divisional Managers, clarification was sought with regard to
certain points to enable the officers and inspectorial staff to implement the
directions imparted in the circular under reference. Further, instructions in
this regard are imparted as under:-
1. The cases where
the conductor has realized fare, but has not issued tickets, it shall be
presumed that the passenger had been undertaking journey from the originating
point of the bus to the terminal point and the conductor had realized fare for
the journey being undertaken by the passenger.
Hence, full fare of
the route along with equal penalty or Rs.5/- whichever is more, shall be
chargeable from the conductor."
Our attention was
also drawn to the Office Order dated 12.01.2006, the relevant portion whereof
reads as under:- " Nigam has decided to prefer a Special Leave Petition
before the Hon'ble Supreme Court against order dt. 16.11.2005 passed by Hon'ble
High Court of Rajasthan Bench at Jaipur and it has also been decided that Sh.
Kamruddin S/o Sh. Sikandar Khan, Ex-Conductor, Vyavar Depot be reinstated
subject to the outcome of Special Leave Petition.
S/o Sh. Sikandar Khan, Ex-Conductor, Vyavar Depot in pursuance of order dt.
04.02.2003 passed by learned Single Judge of the Hon'ble High Court Bench at
Jaipur 9 and order dt. 16.11.2005 passed by Division Bench of the High Court
of Rajasthan at Jaipur and compliance of Award dt. 16.07.1996 passed by Labour
and Industrial Tribunal Ajmer in LCR No. 24/96 (263/90) is hereby reinstated
and posted at Vyavar Depot subject to the decision of Special Leave
furthermore urged that as in implementation of the said Award passed by the
Labour Court as affirmed by the High Court, respondent had been reinstated in
service by an office order dated 12.1.2006 and his services having been
terminated again by an order dated 2.6.2006 in view of the order of stay
granted this Court, this Court may restore the order passed by the Labour
is not a case where the misconduct against the respondent had not been proved.
It is also not a case where the domestic enquiry was found to have been
conducted in an unfair manner or contrary to the principles of natural justice.
The services of the respondent had been terminated while the period of
probation was not over. As a conductor, his performance during the period of
probation was found to be unsatisfactory. It is not in dispute that a
disciplinary proceeding was initiated against him while he was found to have
committed similar misconduct for the fifth time. It is also beyond any doubt or
dispute that he had also been served with a letter of warning.
power of Labour Court and/or Industrial Tribunal in terms of Section 11A of the
Industrial Disputes Act, 1947 to interfere with the quantum of punishment
although cannot be denied, but it is also a well settled principle of law that
the said power should be exercised judiciously.
The Labour Court
relied upon the decision of this Court in Bhagyo Mal (supra) wherein the High
Court allowed back wages to the workman concerned. This Court in the facts and
circumstances of the case found the order of the High Court to be
"When the High
Court had found that the respondent - employee deserved punishment on account
of his misconduct, the High Court could not have rewarded the employee by
granting him the back wages particularly when the Tribunal had converted the
order of dismissal into that of the stoppage of two increments with cumulative
effect. We, therefore, allow the appeal and set aside that part of the order of
the High Court whereby the respondent - employee has been given the benefit of
back wages. The rest of the order is maintained."
We fail to understand
as to how the said decision advanced the case of the respondent.
question with regard to imposition of appropriate punishment upon a conductor
of a bus belonging to a corporation constituted under the Road Transport
Corporation Act, 1950 came up for consideration before this Court in Karnataka
State Road Transport Corporation vs. B.S. Hullikatti [(2001) 2 SCC 574],
wherein it was held:
"5. On the facts
as found by the Labour Court and the High Court, it is evident that there was a
short-charging of the fare by the respondent from as many as 35 passengers. We
are informed that the respondent had been in service as a Conductor for nearly
22 years. It is difficult to believe that he did not know what was the correct
fare which was to be charged. Furthermore, the appellant had during the
disciplinary proceedings taken into account the fact that the respondent had
been found guilty for as many as 36 times on different dates. Be that as it
may, the principle of res ipsa loquitur, namely, the facts speak for them, is
clearly applicable in the instant case. Charging 50 paise per ticket less from
as many as 35 passengers could only be to get financial benefit by the
Conductor. This act was either dishonest or was so grossly negligent that the
respondent was not fit to be retained as a Conductor because such action or
inaction of his is bound to result in financial loss to the appellant-Corporation.
6. It is misplaced
sympathy by the Labour Courts in such cases when on checking it is found that
the Bus Conductors have either not issued tickets to a large number of
passengers, though they should have, or have issued tickets of a lower 12
denomination knowing fully well the correct fare to be charged. It is the
responsibility of the Bus Conductors to collect the correct fare from the
passengers and deposit the same with the Company. They act in a fiduciary
capacity and it would be a case of gross misconduct if knowingly they do not
collect any fare or the correct amount of fare."
A three judge Bench
of this Court in Regional Manager, RSRTC vs. Ghanshyam Sharma [(2002) 10 SCC
330], reiterated the said principle, stating:
"4. This Court
in Karnataka SRTC v. B.S. Hullikatti has held that in such cases where the bus
conductors carry passengers without ticket or issue tickets at a less rate than
the proper rate, the said acts would inter alia amount to either being a case
of dishonesty or of gross negligence and such conductors were not fit to be
retained in service because such inaction or action on the part of the
conductors results in financial loss to the Road Transport Corporation. This
Court was firmly of the opinion that in cases like the present, orders of
dismissal should not be set aside.
5. Furthermore, we
agree with the observations of the Single Judge in the present case that the
Labour Court was not justified in interfering with the punishment of dismissal.
Though under Section 11-A the Labour Court has jurisdiction and powers to
interfere with the quantum of punishment, however the discretion has to be used
judiciously. When the main duty or function of the conductor is to issue
tickets and collect fare and then deposit the same with the Road Transport Corporation
and when a conductor fails to do so, then it will be misplaced sympathy to
order his reinstatement instead of dismissal."
Uttaranchal Transport Corporation vs. Sanjay Kumar Nautiyal [2008 (12) SCC
131], Hullikatti (supra) has been followed.
Order No. 36 whereto our attention has been drawn merely provides for different
nature of penalties which can be imposed on a worker stating that penalties
specified at Serial Nos.5 to 7 therein would be appealable. A corrigendum
thereto was issued on 24.7.1982 by way of clarification with regard to the full
route fare as contained in Circular No. 625 dated 5.6.1982. The said
corrigendum has nothing to do with the nature or quantum of penalty. The same
does not provide for a substitution of the penalty provided for in the
Certified Standing Order. In any event, Certified Standing Order would prevail
over such circulars.
may be true that in execution of the Award passed by the Labour Court, for a
short time respondent was put back in service. This Court, however, as
indicated hereinbefore, stayed the operation of the judgment by reason whereof
Award as also the judgment of the High Court became non- operational. We are,
therefore, of the opinion that by itself that may not be a ground to refrain
ourselves from following the authoritative binding precedents.
the aforementioned reasons, the impugned judgment cannot be sustained. It is
set aside accordingly. The appeal is allowed. However, in the facts and
circumstances of the case, there shall be no order as to costs.
[Dr. Mukundakam Sharma]