Shivsagar Singh Thakur v. State of Chhattisgarh & Ors

HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION N0.396 of 2005 PETITIONER Rajendra Thakur Versus RESPONDENTS State of Chhattisgarh and others WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA (Sinele Bench: Hon'ble Shri Manindra Mohan Shrivastava, J.( Present:- •^' Shri Bharat Rajput, counsel for the petitioner. Shri Sushil Dubey, G. A. for the State/respondent No.l. Shri Pradeep Saksena, counsel for regpondents No.2 to 4. ORDER (Pronpunced on this 2X day of October, 2013) This petition under Article. 226/227 of the Constitution of India has been preferred against the impugned order dated 25-01- 2005 (Annexure P-4) passed by the Industrial Court, Chhattisgarh, Raipur, whereby appeal of the employer-respondent No.2 has been allowed reversing the award of reinstatement passed by the Labour Court.

#2. The petitioher, while working as Conductor in the services of the then Madhya Pradesh State Road Transport Corporation, was on duly in running bus No.6849. When the bus was being plied on the route Durg to Bhavanipatnam on 08-01-1995, the bus was stopped and surprise check was carried out by the Flying Squad. In that search, it is said that out of 72 passengers, 45 passengers were found traveUing without ticket. As the petitioner was Conductor of the bus, departmental enquiry was initiated againsf I him and finally c'ulrainated in order of disniissal from service •^ £ ..y'f Oo passed on 20-09-1995, on proof of the charge of misconduct of carrying passengers wifhout ticket. The order of disraissal from service was challenged before the Labour Court by Eling an application under Section 31 read with Section 61 ofthe C.G./M.P. Industarial Relation Act, 1960. On the prelirainary issue as to whether the departmental enquiry was just and. proper, the Laboi.lr Court recorded a fmding on 04-12-2000(Annexure P-2) ¥- departmental enquiry was Ulegai and improper. Thereafter, \ employer was afforded an opporttinity to lead oral as well as documentary evidence to prove the charges. After recording evidence of both the parties and after allowing both of them to lead oral as well as docum.entary evidence, the Labour Court passed an award on 29-10-2001 holding that the employer failed to prove the charges. The respondents were directed to reinstate the petitioner in service, though, without backwages. Aggrieved by the said award, the petitioner as well as respondent No.2 preferred an appeal before the Industrial Court. While the employer preferred an appeal aggrieved by the order of reinstatement, the petitioner preferred an appeal as he was denied backwages. Vide irapygned order dated 25-01-2005, the appeal of employer-respondent No.2 was allowed and appeal of the petitioner dismissed, giving rise to the instant petition.

#3. Submission of learned counsel for the petitioner is that the Industrial Court committed serious and apparent error of law and jurisdiction by interfering with the award of reinstatement completely ignoring that despite opportunity granted to the •^"''"s's. f' ^ 1^1""' •^ ^ employer, the employer failed to prove the charges by leading cogent, reliable and admissible evidence that the passengers, who were being carried by the petitioner, were travelling without ticket. He submitted that the Labour Court on the basis of oral and documentary evidence placed before it, particularly the evidence that as the bus was plying in the OriSsa State, there were instructions not to charge fare from the students, rightly held that no misconduct was committ^d by the petitioner. There was overwhehning evidence that the bus was actually stopped by the students on the basis of standing instructions of Orissa State, as no fare could be charged by them, proved by the defence, therefore, flnding of the Labour Court that no misconduct was committed, was not liable to be interfered with by the Industrial Court. It is further submitted that the prosecution has failed to prove that the petitioner had collected fare from the students but did not issue tickets to them, therefore, in the absence of any recovery of money from. the petitioner, said to be recovered from the passengers, no case of misconduct was made out. Learned counsel petitioner also argued that though the instructions issued by the Orissa State were produced before the Court and they were not doubted or disbelieved, yet finding was recorded against petitioner by fhe Industrial Court, which is perverse being contrary to the documentary evidence. Leamed counsel for the petitioner also argued that in any case, severity of punishment is not commensurate with the gravity of misconduct. The Industrial Court 1 to have appreciated that the circumstances, in which, ^^aJ ..•f-' students were being allowed to travel in the bus without charging fare, was a mitigating factor in the absence of there being any proof of recovery of fare and non-issuance of tickets. Therefore, in these eircumstances, severe punishment of dismissal from service imposed on the petitioner is grossly disproportionate. It is also submitted that the employer considered pastrecords without giving an opportunity to the petitioner on this aspect in so far as quantum of punishment is concerned. Iri' support of his submission, learned \ counsel for the petitioner relied Upon the judgment in the case of Stute Bank of Bikaner and Jaipur versus Neml Chand Nalwaya1, Anoop Shanna vs. Executive Engineer, PubUc Health Divlsion No.l, Panipat (Haryana)2, Virendra Singh Naikadi vs. C.G. Infrastructure Development Corporation Ltd. & Another3 and Ramesh Kum.ar Sahu vs. C. G. Infrastructure Development Corporation Ltd. & Others4.

#4. On the other hand, leamed State Counsel as well as leamed counsel for respondents No.2 to 4 supported the order passed by the Industrial Court and submitted that the employer led oral as weU as documentary evidence to prove that- the petitioner was carrying large number of passengers, as many as 45 in number, without tickets. The concerned Officer, who had checked the bus, prepared document showing the details of the passengers, who were not found having tickets. The petitioner's past record showed that in the past also, the petitioner indulged in similar misconduct.