U.P.
State Road Transport Corporation Vs. Vinod Kumar [2007] Insc 1232 (6 December 2007)
Ashok
Bhan & D.K. Jain
CIVIL
APPEAL NO 5660 OF 2007 [Arising out of S.L.P. (Civil) No. 16639 of 2006) BHAN,
J.
1.
Leave granted
2.
This appeal is directed against the final judgment and order dated 3.8.2005
passed by the High Court of Uttaranchal at Nainital in Writ Petition No. 603
(M/S) of 2002. By the impugned order, the High Court upheld the findings
recorded by the Labour
Court to the effect
that the punishment of removal imposed upon the respondent was excessive in
comparison to the charges levelled against him. The High Court while
maintaining the findings recorded by the Labour Court that the punishment of removal was excessive in comparison
to the charges levelled against the workman, reduced the back wages to 50%.
3.
Respondent-workman was appointed as a Conductor in the U.P. State Road
Transport Corporation (the appellant herein) on 26.9.1991. Respondent was
conducting the bus on Kalsi- Chhani route, which was checked and, on inspection
it was found that out of 45 passengers, 28 passengers from Kalsi to Chhani were
without ticket. The Inspecting Team found that the Conductor had already
recovered fare from 8 such without- ticket passengers. That he had issued 6
tickets which were not in seriatim and their original copies were not
completely filled. That entry of these tickets was not made in the Way Bill.
The inspecting team made an endorsement to this effect on the Way Bill and got
the signatures of respondent as a proof thereof. On the report of the
inspecting team, charge-sheet was issued to the respondent and he was placed
under suspension. Later on, respondent was reinstated in service subject to the
final result of the disciplinary proceedings initiated against him.
4. The
Enquiry Officer, after holding the enquiry, submitted his report wherein it was
held that the charges were partially proved against the respondent. The enquiry
report was considered by the Punishing Authority, which disagreed with certain
conclusions arrived at by the Enquiry Officer. After recording detailed reasons
for disagreement with the conclusions arrived at by the Enquiry Officer, the
Punishing Authority issued a show-cause notice to the respondent enclosing
therewith a copy of the enquiry report.
It was
provided in the said notice that the workman can inspect the record or obtain
the copy thereof, if he so desires. Respondent filed its reply to the said
show-cause notice. Considering the entire material on record including the reply
to the show-cause notice submitted by the respondent, Punishing Authority
passed the detailed order, removing the respondent from service. Balance salary
for the period of suspension was also forfeited.
5.
Respondent raised an industrial dispute. The State Government referred the
following dispute to the Labour
Court, Dehradun for
adjudication:- "Whether the termination of the services of the
applicant/workman Shri Vinod Kumar S/o Shri Ravi Ram Singh, Conductor by the
employers from 31.07.1999 is unjustified and/or illegal? If so, to which
benefit/compensation the applicant/workman is entitled and to what
extent?"
6.
Both the parties filed written statement, rejoinders and documents before the Labour Court.
7.
Respondent did not press the legality and fairness of the enquiry proceedings
and confined his case only to the conclusions reached by the Enquiry Officer as
well as the quantum of punishment.
8. Labour
Court, without appreciating the fact that in the absence of challenge to the
legality or fairness of the inquiry report the Court should be reluctant to
either interfere with the finding recorded by the Punishing Authority or the
quantum, held that the charge of misappropriation has not been proved against
the respondent and, thus, punishment of removal from service is harsh. It
substituted the punishment of removal by stoppage of one increment without any
cumulative effect and directed reinstatement of respondent with full
back-wages. The said award was published. The appellant challenged the said
award by filing Writ Petition No. 603 (M/S) of 2002 before the High Court of Uttaranchal
at Nainital. The High Court, without appreciating the fact that once it was
held that respondent was carrying passengers without ticket and had also
recovered fare from 8 passengers which was a serious misconduct, upheld the
order passed by the Labour
Court. It agreed with
the findings recorded by the Labour Court
that punishment inflicted upon the respondent was excessive and
disproportionate to the charges levelled/proved, but reduced the back-wages to
50%. The award of the Labour
Court was modified to
that extent.
9.
Counsel for the parties have been heard.
10. As
stated in the preceding paragraphs, the respondent had confined his case only
to the conclusions reached by the Enquiry Officer as well as the quantum of
punishment.
Therefore,
since the respondent had not challenged the correctness, legality or validity
of the enquiry conducted, it was not open to the Labour Court to go into the findings recorded by the Enquiry Officer
regarding the misconduct committed by the respondent. This Court in a number of
judgments has held that the punishment of removal/dismissal is the appropriate
punishment for an employee found guilty of misappropriation of funds; and the Courts
should be reluctant to reduce the punishment on misplaced sympathy for a
workman. That, there is nothing wrong in the employer losing confidence or
faith in such an employee and awarding punishment of dismissal. That, in such
cases, there is no place for generosity or misplaced sympathy on the part of
the judicial forums and interfering with the quantum of punishment. Without
burdening the judgment with all the judgments of this Court on this point, we
may only refer to H. Amaresh, 2006 (6) SCC 187, wherein this Court, after
taking into account the earlier decisions, held in para 18 as under:- "In
the instant case, the mis- appropriation of the funds by the delinquent
employee was only Rs.360.95.
This
Court has considered the punishment that may be awarded to the delinquent
employees who mis-appropriated the funds of the Corporation and the factors to
be considered. This Court in a catena of judgments held that the loss of
confidence is the primary factor and not the amount of money mis-appropriated
and that the sympathy or generosity cannot be a factor which is impermissible
in law. When an employee is found guilty of pilferage or of mis-appropriating
the Corporation's funds, there is nothing wrong in the Corporation losing
confidence or faith in such an employee and awarding punishment of dismissal.
In such cases, there is no place for generosity or misplaced sympathy on the
part of the judicial forums and interfering therefore with the quantum of
punishment.
The
judgment in Karnataka State Road Transport Corporation v. B.S. Hullikatti
(2001) 2 SCC 574 was also relied on in this judgment among others. Examination
of the passengers of the vehicle from whom the said sum was collected was also
not essential. In our view, possession of the said excess sum of money on the
part of the respondent, a fact proved, is itself a mis- conduct and hence the Labour Court and the learned Judges of the High
Court misdirected themselves in insisting on the evidence of the passengers
which is wholly not essential. This apart, the respondent did not have any
explanation for having carried the said excess amount. This omission was
sufficient to hold him guilty.
This
act was so grossly negligent that the respondent was not fit to be retained as
a conductor because such action or inaction of his was bound to result in
financial loss to the appellant irrespective of the quantum." [Underlining
is ours]
11.
Respectfully agreeing and following the aforesaid decision of this Court, we
accept this appeal and set aside the judgment of the High Court as well as the
order passed by the Labour
Court. Consequently,
the order passed by the Punishing Authority dismissing/removing the respondent
from service is restored. No costs.
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