The
Regional Manager, Rajasthan State Road Transport Corporation Vs. Sohan Lal
[2004] Insc 587 (27 September 2004)
N. Santosh Hegde & S.B.
Sinha (With Civil Appeal No.1764/2002) Santosh Hegde, J.
These appeals are preferred against the order of the Division Bench of the
Rajasthan High Court, Jaipur Bench dated 10th of August, 2001 whereby the said
Bench allowed the special appeal filed before it setting aside the judgment of
the learned Single Judge of the said High Court which had confirmed the award made
by the Industrial Tribunal, Jaipur.
Brief facts necessary for the disposal of these appeals are as follows;- The
respondent herein was appointed as a Conductor on daily wages in the
appellant-Corporation on 20th of June, 1986. His services were terminated on
1st of December, 1986 on the ground that the same was not required by the
appellant- Corporation.
Challenging the said termination, the respondent moved an application under
Section 33(2-A) of the Industrial Disputes Act, 1947
before the Industrial Tribunal, Jaipur alleging that his termination was
contrary to Section 25F of the Industrial
Disputes Act, as he has already completed more than 240 days of continuous
service in a year in the appellant- Corporation, therefore, without following
the provisions of Section 25 F of the I.D. Act his services could not have been
terminated. He also alleged in the said application that his termination was a
colourable exercise of power because during his service in the Corporation an
inspection was carried out by the checking staff on 20th of November, 1986 when
he was on duty in Bus No. 7108. During the course of investigation, a false
case of non-issuance of ticket to six passengers was made against him and since
the Management was not in a position to prove the said charge it took recourse
to his discharge from service without holding a proper enquiry which amounts to
a colourable exercise of power.
The appellant-Corporation opposed the said application stating that his
appointment was purely temporary on daily wages basis and since his services
were not required, the same was terminated which was permissible as per the
terms of the letter of appointment. It is also stated that the respondent had
not completed 240 days of continuous service in any year in the Corporation and
therefore there was no need to comply with Section 25 F of I.D. Act. However,
it was admitted that when the respondent was working as a Conductor and there
was an inspection on 29.11.1986 wherein it was found that he had not issued
tickets to six passengers but that was not the ground on which the termination
was based.
In view of the allegation of the respondent-workman that his termination was
for the above said alleged misconduct, the appellant-Corporation sought
permission from the Industrial Tribunal to lead evidence to justify the charge
of misconduct which permission was granted and parties were permitted to adduce
evidence before the tribunal. Based on the evidence that came on record the
tribunal came to the conclusion that the Corporation has proved the misconduct
as well as the unruly behaviour of the Conductor during the inspection,
therefore, it came to the conclusion that even on the ground of misconduct
termination of the respondent was justified, hence, rejected the application of
the respondent.
Being aggrieved with the said award of dismissal of his complaint, the
respondent filed a writ petition before a Single Judge of the Rajasthan High
Court, Jaipur Bench. The learned Single Judge who heard the petition came to
the conclusion that the finding of fact recorded against the petitioner
regarding his misconduct does not suffer from any perversity so as to give a
cause of action for the High Court to interfere in it, hence, it dismissed the
writ petition.
Against the said judgment of the learned Single Judge, the respondent
preferred a special appeal before the Division Bench of the High Court. When
the matter came up for consideration by the Division Bench, the court on
18.7.2001 made the following order :
"The learned counsel for the petitioner- appellant makes a statement
that the writ petitioner is prepared to forego the entire salary for the period
and he would be satisfied, if at least, reinstatement is ordered.
We direct the counsel for the respondent No. 2 to ascertain from his
department, whether the petitioner- appellant can be taken now as a fresh
employee".
The matter again came up for further orders on 10.8.2001 when the Division
Bench passed the following order which is now impugned in this appeal:
"The learned counsel for the appellant now states that he is willing to
forego the salary from 1986 till the date of his reinstatement, with continuity
of service and other attendant benefits attached to the said post. Since, the
appellant has now opted for the above benefit, we accept his prayer and direct
the respondent No. 2 accordingly. The respondent No. 2 is directed to reinstate
the appellant in service in the above terms within four weeks from today".
A perusal of these two orders of the Appellate Bench of the High Court shows
that it did not apply its mind to the facts and law involved in the case but
proceeded to consider the offer made by the appellant in his prayer, i.e., in
the event of his being re-instated in service he would forego the entire back
wages. The order of 10th of August, 2002 shows that the appellant-Corporation
had not agreed to such a proposal made by the respondent and the said order
which is now impugned in this appeal was made without the consent of the
appellant.
We notice from the finding of the Industrial Tribunal that the respondent-workman
had indulged in misconduct which has not only led to monetary loss to the
Corporation but the Corporation has also lost confidence in the said workman.
Therefore, to continue such an employee in the employment of the Corporation
by virtue of a judicial order, in our opinion, is an act of misplaced sympathy
which can find no foundation in law or in equity. The finding that the workman
has committed the misconduct in question of not issuing tickets to passengers
is a finding of fact arrived at by the Tribunal after taking into consideration
the evidence recorded therein. This finding was affirmed by the learned Single
Judge and the High Court has not set aside the finding. Therefore, the question
of moulding the relief on the facts of this case did not arise at all.
The offer of the respondent to forego the back wages in lieu of his being
re-instated is not an offer to be taken into consideration by the court unless
and until the finding of the tribunal on misconduct was set aside and having
perused the records including the order of the tribunal, we are satisfied that
this is not one of those cases in which there was room for setting aside such a
finding.
Assuming for argument sake that the High Court by the impugned order
proceeded on the basis that though the misconduct is proved the punishment was
disproportionate and it is on that basis that the impugned order is made, even
then we are unable to agree with the order of the Appellate Bench of the High
Court because it is not the normal jurisdiction of the superior courts to
interfere with the quantum of sentence unless the said sentence is wholly
disproportionate to the misconduct proved. No such finding has been recorded by
the Appellate Bench in the impugned order. Since the misconduct proved is one
of dishonesty, the quantum of loss is immaterial, it is the loss of confidence
that matters. In such a situation if the Tribunal chooses to uphold the order
of dismissal and refuse to interfere with such termination and the learned
single Judge of the High Court agreed with the said order of the Tribunal, then
Appellate Bench ought not to have interfered with the quantum of sentence.
Having perused the facts of the case we are in agreement with the finding of
the Tribunal as well as learned single Judge, hence, we are of the considered
opinion that the Appellate Bench fell in error in interfering with the orders
of the courts below merely on the basis of offer made by the appellant before
it.
For the reasons stated above, these appeals succeed. The order impugned is
set aside and that of the tribunal as affirmed by the learned Single Judge of
the High Court is restored.
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