U.P.S.R.T.C. Vs. Mahendra Nath Tiwari & Anr [2005] Insc 639 (11 November 2005)
Ruma Pal & P.K. Balasubramanyan
[Arising Out Of Special Leave Petition (Civil) No. 9495 Of 2004] P.K.
Balasubramanyan, J.
Leave granted.
1. The respondent herein was appointed conductor of a bus by the Uttar
Pradesh State Road Transport Corporation (hereinafter referred to as
"U.P.S.R.T.C."). On the allegation that he was found to be driving
the bus URO 7908 and that no ticket had been issued to a lone passenger found
in the bus and he had in his possession used tickets, disciplinary proceedings
were initiated against the respondent.
A domestic enquiry was got conducted through a retired judicial officer. He
found that the respondent was unauthorisedly driving the bus and that no ticket
had been issued to a lone passenger sitting in the bus when the checking party
inspected the bus. He also found that the respondent had in his possession 12
used tickets. Based on the finding at the enquiry and after hearing the
respondent, U.P.S.R.T.C.
imposed a punishment of removal against the respondent.
2. At the instance of the respondent, the matter was sent to the labour
court. It was numbered as Adjudication Case No. 259 of 1991. The Presiding
Officer found that the domestic enquiry relied on by the U.P.S.R.T.C. was not
proper. The parties were given an opportunity to lead evidence. U.P.S.R.T.C.
adduced evidence in support of the charge. The respondent adduced no evidence.
In other words, he did not even try to explain the circumstances under which he
was allegedly driving the bus or the circumstance in which it was found that a
lone passenger travelling in the bus had not been issued a ticket. He also did
not try to explain as to how he came to be in possession of 12 used tickets.
The Presiding Officer, in spite of the absence of evidence on the side of the
respondent proceeded to interfere with the punishment imposed. It appears that
the Presiding Officer found that the respondent was a conductor but was driving
the bus. There was clear evidence before him that the driving of the bus by a
conductor amounted to misconduct. The Presiding Officer, in fact, noticed that
only the respondent could explain how the twelve used tickets were with him or
how he happened to be in possession of them. He also stated that if used
tickets were found with the conductor it falls within the definition of
misconduct. Taking a curious view that since no action has been taken against
the driver, no action could be taken against the respondent alone and that the
punishment awarded was too severe, the Presiding Officer proceeded to interfere
with the punishment.
3. The Presiding Officer directed the reinstatement of the respondent with
continuity of service and all the remaining dues but directed the stoppage of
his annual increment. He further directed that the respondent will receive his
annual increment only when he satisfied his senior officers for three years
without any charges or complaint against him. Apparently, what he meant was
that the question of increment would depend upon the respondent satisfying his
superiors over a period of three years that his conduct as a conductor during
that period was blemishless.
4. U.P.S.R.T.C. filed a writ petition in the High Court of Allahabad
challenging the award of the labour court. By a reasoning, which with all the
restraint at our command, we can only describe as perverse and a conclusion
obviously flawed, the High Court dismissed the Writ Petition. The main theme of
the song was that no action had been taken against the driver. The judge
proceeded to speculate on the reason why the conductor was driving the bus. He
also stated that the embezzlement alleged against the respondent was of a
paltry sum of Rs. 1.50. He came to a curious conclusion that the bus driver who
according to him had changed roles with the respondent as a conductor, was
responsible for not collecting the fare from the passenger and no reason was
shown why no charge sheet was given to the driver and why no enquiry was held
against him. The learned judge also accepted the argument that the respondent
was given a totally disproportionate and harsh punishment for his misconduct.
The Writ Petition was dismissed. We are aghast at the approach made by the
learned judge and the reasoning adopted by him. Here was a conductor who was
not authorized to drive the bus. Admittedly, he was driving the bus at the
relevant time. He thus endangered the lives of pedestrians and other vehicle
owners using the road. He also endangered the safety of the bus belonging to
U.P.S.R.T.C. He was found in possession of 12 used tickets for which he offered
no explanation. One passenger was found in the bus to whom no ticket had been
issued. If these are not enough to find the conductor of a bus guilty of
misconduct, we wonder what according to the learned judge would be misconduct
on the part of the conductor of a bus. The judgment of the High Court is
challenged in this appeal.
5. At the time of issuing notice, this Court issued notice only limited to
the question of back wages that was awarded to the respondent. Of course, when
we are hearing the appeal on grant of leave or the petition for special leave
to appeal after notice, we are entitled to reopen the appeal in its entirety
and consider the question of punishment and the legality of the reinstatement
ordered by the labour court and affirmed by the High Court. This could be done
by giving a notice in that behalf to the respondent and giving him an
opportunity of being heard. But for the purpose of this case and at this distance
of time, we do not think that it is necessary to do so.
Therefore, somewhat reluctantly, we refrain from adopting that course,
though according to us, this is a fit case where neither the labour court nor
the High Court had any justification in interfering with the order removing the
respondent from service. The conduct of the respondent as a conductor of
U.P.S.R.T.C. was totally irresponsible and clearly constituted misconduct on
his part deserving the maximum punishment.
6. We have no hesitation in coming to the conclusion that the respondent did
not deserve the award of back wages to him. In fact, he must consider himself
lucky to have been reinstated and that we are not interfering with that
reinstatement. When a conductor drives a bus for which he is not authorized, he
is endangering the public as well as the property of his employer. This by
itself is a serious misconduct justifying dismissal of a conductor. Similarly,
the fact that one passenger was found travelling and had not been issued a ticket
for that journey, constitutes a grave charge against a conductor who is really
in a position of trust as far as the employer-Corporation is concerned. He is
duty bound to collect the fare from every passenger on behalf of his employer.
Same is the position regarding the unexplained twelve used tickets, found in
his possession. That prima facie suggests that there is room to doubt the
honesty of the respondent. He did not even try to explain the circumstances in
that regard. The charges are such that they show a betrayal of the trust placed
on the conductor by the employer and that the employee endangered an asset of
the corporation in addition to endangering the lives of the other users of the
road.
7. It is a misconception to consider that the amount involved in an offence
of this nature has a material bearing, while considering whether there has been
misconduct on the part of an employee. It may be relevant in a criminal
prosecution when considering the quantum of punishment to be imposed. When a person
like the conductor of a bus, who has the obligation to make proper collection
of the charges from the passengers on issuing tickets to them, is found to have
passengers in the bus, even if it be only one, to whom he had not issued a
ticket, it clearly amounts to a clear violation of the duty imposed on him. It
is really a breach of the duty cast on the conductor who is acting on behalf of
the employer.
Whether it be one passenger or ten passengers it would make no difference in
principle in the absence of any explanation in that behalf.
It was simply the case of a conductor who had violated the Regulations or
the terms of his employment and had betrayed his employer, which in any event,
is a grave misconduct justifying a dismissal.
8. We, therefore, allow the appeal in part and set aside the award of back
wages. The respondent would be entitled to wages or salary only from the date
of his being reinstated pursuant to the direction of the labour court. If
anything has been paid to him in excess, U.P.S.R.T.C. would be entitled to
adjust the same from his future salary in monthly installments and/or recover
it from his retiral benefits, if he is not still in service or by proceeding
otherwise.
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