Md. Khasim v. The lndustrial Tribunal-Cum-Labour Court

Petition Under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith' the High Court may be pleased to issue Writ, Order or Direction more particularly one in the nature of Writ of CERTIORARI by calling all the concerned records of lD No 130 of 2003 on the file for the Hon'ble 1't Respondent in so far as not granting any relief to the Petitioner in Award daled 14-7 -2006 and same was published in G O'Rt'No- 2018 dated 22-9-2}06is illegal, arbitrary and unjust and quash the same and consequently granting re-instatement of the Petitioner with continuity of service' attendant benefits and backwages to the Petitioner' Counsel for the Petitioner : SRI AK.JAYAPRAKASH RAO Counsel for the Respondent No.1 : GP FOR LABOUR Counsel for the Respondent No.2 : SRI N'GHANDRA SEKHAR The Court made the following ORDER THE HON'BLE SRI JUSTICE PULLA KARTHIK WRIT PETITION No.ut099 of 2OO7 ORDER: Assailing the award d-ated 74.07 .2OO6 passed by the Industrial Tribunal-cum-Labour Court, Warangal (for short, 'the Labour CourF),--in I.D.No. I30 of 2OO3, the present writ petiLion was frled.

2. The brief facts of the case are that the petitioner was initially engaged as Badili Conductor in the respondent Corporation during April 1996, and his services were regularized w.e.f., 13.06.1997. On I 1.01.2OO I , while discharging his duties in bus bearing No.AP g Z 3977, en route Parkal-Laxrnidevper at Stage No.6/7 (Chelpur), aL about l9-40 hours, a chcck was exerciscd, wherein, the petitioner was allegcd to have been involvcd in cash and ticket irregularities. As such, hc was issucd with a charge memo dalcd 20.OI.2OO7,leveling four chargcs against him. ln response, the pctitioner submitted his explanation on 28.Ol.2OOl. Horvever, an enquiry ofhce was appointed and after the conduct of an enquiry, the enquiry report dated 14.05.2OO1 was submitted, holding the petitioncr gu itty of the charges, resulting in his removal from se rvice vidc procecdings dated O5.09.2OO1. Agpieved by the said removal ordcr, thc petitioncr preferred an appeal and revierv, which were also rejected vide ordcrs datcd 27.12.2OO1 and 04.O l.2QO3 respectively. As such. thc 2 PK, J W.P.No.4O99 of 20O7 petitionef was constrained to approach the Labor_rr Court and f ed I.D.No.130 of 2OO3, which rvas dismissed vide impu 3 red award dated 74.07.2006, confirming the ordcr of removal. Hence, the present writ petition.

3. I{eard A.K. Jayaprakash Rao, learned counsel for t re petitioner, and Sri N. Chandra Sekhar, lcarncd Standing Counsel apltt:r ring on beha_lf of respondent No.2. 4 ' Learned counsel for the petitioncr contends that r,, rile the petitioner was issued with the chargc memo datcd 2o.o1.2ool lrr uuas never served with a,y material or relevant documents arong wit. thr: s rid charge memo. In spite of the same, the petitioner submitted his explanation on 28.01.2OO1, denying the charges. fJowcver, a dom: rtic enquiry was ordered ad conducted rn violation of the Rutes, rvhich r:r ncluded with the enquiry officer holding the petitioner guilty of the charl :s. However, the findingsrof the enquiry officer rvere pcrverse and not I rsed on materia] evidence, as none of ttre passengers rvr,,ere summoned ar; witnessed during the enquiry proceedings. Howcver, none of these asp,r ts \r,ere properly appieciated by the Labour Court tvhile passing the iml)u ;ned award. It is further contended that the Labour Court had grossl_l, : red in observing that the petitioner was habitual riffendcr of cash and ti. <et irregularities, by iilowing the passengers Lo tra'el *rithout tickets or t y colreting resser 3 PK, J W.P.No.4099 of 2O07 than the requisite fare. Further, the petitioner had a crean service record withou t any blemish from the superiors. As such, the Labour Court ought not to have dismissed the I.D. filed by the petitioner vide impugned award dated 14.O7.2006. Therefore, learned counsel for the petitioner prays this Court to pass necessary ordcrs in the present writ petition.

5. Per conLra,learned Standing Counsel for respondent No.2 submits lhat a check was excrcised on 11.O1.2001 en route parkal_Laxmidevpet at Stage No.6/7 (Chelpur), at about l9_4O hours, wlrerein, the petitioner was found to have involved in serious cash and ticket irregularities, by collecting a lare of Rs.2/ - each from a batch of four passengers arrd lailcd to issue the tickets. As such, a charge memo dated 2C'.Ol.2OO7 was issued and an enquiry was conducted in accordance with the rules in force, wherein, thc charges leveled against the petitioner were.held provcd. Therefore, the petirioner was irnposed with a punishment of removal irom service vide proceedings dated OS.09.2OO1, and his appea_I and review were also rightly rejected vide orders d,ated 22.12.2OO7 and 04.Ol.2OO3 respectively, confirming the punishment of rernoval from service for the proven misconduct. As such, the Labour Court, while declining to interlere with the removal order, has rightly dismissed I.D.No. l3O of 2OO3 vide impugnecl arvard dated 14.o7.200s- rirererore, it is prayed to dismiss the prescnt u ril petition. 4 PK, J n P.No 4O99 o-f 2007

6. Having.regard to the submissions/contentions urgecl )y the learned counsel for the respective palties, this Court deems it apF( lite to refer to the impugned award dated 14.07.2006 passed by the Lz rour Court in I.D.No. 13O of 2003. The relevant portion of the said arv; d is extracted hereunder: -irave "21. Three charges have been framed against the I rtitioner' CharBes.2 and 3 are overlapping on each other. The 1"t charl ls usual chargl viotation of Reg.28 [xxxii) i.e, t'iolating the rule'issue 2 r'1 slart" The i"d ctrar8e is thai he coltected Rs.8/- from four passcng' i rnstead of cotlecting Rs.12/-. These passengers found to be alightrn I without tickets at Clelpur. The 3d charge is that I1e tailcd to collecr 1 "121 lL shows tltat bottr tfre cha-rges are one and the same. He collc -- --d lts S/ instcafl ofRs.12/- and failed to collect Rs. I2/-. He did not i: I te rickets admitiedly. The petitioner admitted in lris clatm statemcnr hat t-hile he was dJmanding th"* to pay the remaining fare the check I )ok J)lace' But the evidence on .ecord shows that thcse passengcrs r" t r fottnd ro be alighting at stage no.6/7 without tickets Ex.M-8 is the sl temont oI stated at the timc ofcheck that the\'1 rrd lls 8/- p"""Jrrg".*. They io the letitioner and the conductor did not give any tickc : and after checking they paid the remaining Re. t/ cach- The petitiotr| rlndorsed on the said ititement that the contents are true' In fact ll t milrtmum fare for everjr R.T.C. bus is'Rs-3/-. But admittedty th: l)ctitiorrcr collected Rs-2/- only from each passengcr. At the time ( dolnestic enquiry the *it.ress passengers stated that they paid Rs'2 / ach to tlte in"t the petitioner demanded tl c tenr'rining petitioner, but they ile.1/-.each. If they did not pa1' remaining Re-t/- the pet't rner ought not have given signal to ttre driver to move the bus, but tte llorved thc bus to move. It shows that he violated thc rulc "issue and : l Lrt" Apart from it the passengers were alighting at the place of check' IJence the questioh th;t the petitioner demanding thcm to pay tlc remaining Re.1/- is incorrect-. Taking advantagc of the short 'l itan(x) thc pe titioner collected. money of Rs 8/- w-ithout issuing ticket; when the Lus reached the destination i.e, stage No-6/7, these passeng 'rs alrghted from t]le bus without ticket and when they rvere confrontc< )! thc TTls' they inade a statement that they paid Rs 8/' to the petitiorn r Hence it cleiily shows that it has been usual practice of the petiti) Ler tr) allow the iassengers without tickets by coltecting Iess mc r lI withou t cotteiting thi requisite fare arid.rvithout rssuing tickets 'fr) I is rrothrng but a gr1.ve misborrduct dn the part of the Petitioner'. t rought this court ii competent to re-appreciaG the evidente adduce(t I the time of \!rlh the the domestic enquiry, I at not find anything to inler € hnctings arrived by' ttrl cnquit-r- ofhcer. It is only an after 1l )Lrght of ttre petitiJner to say that he-was demandirtg the passengcr s 1o l)al/ tlle "ad"a ' 5 PK, J w.P.No.4099 of 2OO7 remaining Rw.1/- each and that they were arguing that the auto driver would demard only Rs.2/- for that distance.i No--*h"r. in the written statement the conductor stated so. The petitioner allowed the passengers four in number to travel without tickets an part from it he collected Rs.8/- from thern. Hence I hold that all the charles have been proved. This point is therefore found in favou r of the reipondent and against the petitioner.

25. The Tribunal is duty bound to take into consideration of relevant facts and factors and then onty can interfere with the punishment awarded by the management when it comes to the conclusion that the punishment imposed is extremely harsh and unjust and wholly disproportionate to the misconduct proved. Hencc ihe Labour Court does not enjoy any untrammeled porver ofjurisdiction to set aside the order of discharge or dismissal and direct reinstatement of workman. In the process the tabour Court is l)ound to record that order oi discharge or dismissal is shockingly disproportionate to the established misconduct. Such power is conferred upon the tabour Court to protect t-he workman from the possible vindiciive and arbitra:y discharge or dismissal of the rvorkman from the scrvice on cairiciously- and imaginary grounds. Discretion under Section l1-A means that something is to be done in accordance q,ith Rules of rcason and justice, not according to the private opinion...accord ing to law and not humor. It is to be not arbitrarv, vague and fanciful, but legal and regular. It may be exercised within the limits. 26. The Honble Supreme Court of India in the decision between Regional Manager, R.S.R.T,C vs. Ghanshyam Sharma reported in 2002_ I-LLJ 234 while dealing \vith Section I 1-A oi I.D. .{ct, re^ferring decision between KSRTC vs. B.S_ Hullikatri - 2001-t-LLr 725 (SC) observed follows: - "That in such cases where the bus conductors carry passengers without ticket or issue tickets at a less rate t]ran the proper rate, the said acts would inter alia amount to either being a case of dishcnesty or of gross negligence and such conductors were not fit to be retained in serviie because such inaction or action on the part o[ the conductors results irr hnancial loss to the Road Transport Corporatlon. This Court w-a1.hrmly of the opinion that in cases like the present, orders of dismissal should not be set aside. Furthermore, we agree with the observations of ttre tearned Single Judge in the present case that the [,abour Court was not justified in interfering with the punishment of dismissal_ Thought undir Section I t A, the Labour Court has jurisdiction and powers to interfere ivith the quantum of punishment, howiver, the discretion has to be used judiciously. Wtren the main duty or function of the conductor is to issue tickets and collect iare and then deposit the sarne with the Road Transport Corporation and when a conductor fa-ils to do so, thcn it wil:l be 6 PK, J W.P.No.4099 of 2007 misplaced sympathy to order his reinstatement ins r rd of dismissal." 27 The conductor acts in a fiduciary capacity. He is r trustec of property of the corporation. He deals with the money of thc t rrporation as well as ttle traveling public. Having accepted the emptol r ent of the respondent he should be loyal and honest_ He cannot iherr either the traveling public or the respondent. But here he collecte<i F ;.2/ each total an amount of Rs.8/- ftom, (2+21 4 passengers, insteir of Ils.3/- cach amounting to Rs.12/- who were found alighting wit1,r t ticket at Chelpur village having boarded the bus at Chelpur st"ge, .::. itages 6 to 6/7. It shows that h€ w€[Ied to misappropriate the monc], i .himself. 28. In t}re decision betweefl between Regional Manag( r UPSRTC, Etawah ald others vs. Hoti L€l and another reported in 2Ol i LAII-I.C.- 757, q'herain the Hori'bie Supreme Court of India held: "Bus conductor is person who deals with pubtic mo r y. and acts in fiducia5r capacity. Highest degree of integri I arrd trustworthiness is must a]]d uncxceptionable. Charge., rrovr:d after an elaborate. and fair enquiry order of dismrss l, not disproportionate In Para No.l0 it is further observed as follows: - "[t needs to be emphasizcd that the Court or Tribrrr r rvhrle dealing with the quantum of punishmerrt has Lr, record reasons as to why it is felt that the punishmeot (1, _-s not commensurate with the proved charges. r\s lrllr bcen highlighted in several cases to ryhich reference has lrce . made above, the scope foi interference is very limited and re tricted to exceptional case| 'in the indicated circurrl ancos. Unfortunately, in the present case as thc quoted (,It lcts of the High Court's order would go to shorv, llo _-asons whatsoever have been indicated as to why the prrni hmcnt was considered disproportionate. Reasons arc li,, tinks between the minds ofthe decision taken to thc contrl c.sy in question and the decision or conclusion arrived at- ll luri to " to denial of justice. {See .dl xandcr grve rcasons amounts Machinery Dudley Ltd.lVl Crabtree (1974 LCR 12Ol \ mcre statement that it is disproportionate would not sL fice. A p.rrty appeadng before a Court, as to what it rs that tt , Corlrt is addressing its mind. It is not only the amount inr,,r t:d lrut the mental set up, tie type of duty performed arr I similirr relevant circumstances which go into the decisirrrr nakirrg process whilb considering whether the punishr ent is proportionate or disproportionate. lf the charged : rplo,vee holds a position of truSt.;where honeser and inrcp ity are inbuilt reQuirementi of funitioning, lt wolta not b<: i oier to deal witll the mattef .leniently. Misconduct in such < r ;es lras to be dealt with iron hands. Where the person cl ). ls q rth public money or is engaged in financial transactions or acts -{,, 7 PK, J W.P.No.4O99 of 2OO7 in a f,rduciary capacity, highest degpe .of . integnty and trustworthiness is must and unexceptionable. Judged in that background, conclusion of the Divison Bench of the High Court do not appear to be proper. We set aside the same and restore order of learned single .Iudge upholding order of dismissa[."

29. In another decision in between DEVENDHAR SWAMY. VS KSRTC reported in 2OO2 LAB.[,C-2475-SC, the Hon'ble Supreme Court hetd as follows: - "Bus conductor defalcating money by not issuing tickets to passengers. The punishment of dismissal from service is not disproportionate".

30. In arrot}rer decision in behveen TIARJINDER SINGH STATE OF PUNJAB reported in 1999 (t) LU-1292 it is hetd: 'The I^abour Court has power to reappraise evidence but the power cannot bc arbitrarill' used to order rcinstatement or re€mployment of dishonest employces. Fraud o[ even a srnall amount is like a drop of poison in a bucket o[ pure milk, which will run the rnilk completely and rcndcr it unfit for human consumption. Simitarly, an emplolee found to be guilty of dishonest act rendcrs himsell trntit for retention in service. Dismissal of a Bus conductor who collected fare from passengers but did not issue tickets; though the amourrt was too small, a paltry sum of Rs.g 70, need not bc interfered with, since the emplovce b_v his conduct shol\ed Ihat hc could not be trusted rvith even a small a-mount and a person rvho had the lost confidcncc of the cmplover should rot have been foisted on tbe department b) the Labour Courr"

31. In tJle same decision rclerred supra is in between Divisional Controller, KSRTC vs. A.T. Mane reporred in2OO5 SCC (L&S)-a07, in Para 12 it has been observed by the Supreme Court as follows:- "Coming to the question of quantum of punishment, one should bear in mind the fact that it is nor the amount of money misappropriated that becomes a primary factor for awarding punishmenu or1 the contrary, it is the loss of conhdence which the primary factor to be taken into consideration. In our opinion. tvhen a person found guilty of misappropriating the corporatior's founds, there is nothing wrong; the corporatton losing confidence or farth in such a person and awarding punishment of dismissal."

32. In view ofthe above dccisions the t,abollr Corrrt cannot force this petitioner on the corporation to bear hiln. He is accrrstomed to chcat the respondent as well as the travellng public. Such persons are undeserving to be in sen'ice. lf reinstatement is ordered hc woutd 8 PK, J W.P.No.4099 of 20O7 tarnish the image artd reputation of the respondent. Henc, I hold that tnc punlshment of remova_l is not at all disproportionar,: The point thcrefore, is found in favour of the respoinJ;;;;;' r garnst the petil ioner. 33- _ POINT No.3: ln the resriit, the petition is dismisserl_ lhrs award shall become enforceable on expiry tf SO a"V" i;."-"Ul, f^t" of its -l.ti. publication under Section 17 of ect by virtue J-poi.,, , .o,,f".r"a qnder SectionlT-A (1) of the Act." 7 From Lhe above, iL is unequivocally clear that thc I abour Court ltas carefully considered the facts'and circumstances of r e casc and thc matcrial evidence, ancl categorically held all ttre charges < velecl against thc pctitioner as proved. The Labour court has also rr,1 :rrr:d to various j udgmcnts or thc Hon'ble Apex couit, which pertain to r I e ca scs invorrang dishoncsty and linancial irregularities. As . such, thi; court is oI the considcrcd vicw that the Labour Court was justilied ir, hokling t.hat the pltnishmcnt .f rcnroval f.om service is not at all drsprr r ortionate ror the proven rnisconduct- Thercfore, thiq court is not incline: ro i.terfcrc *,itir the impugned award dated I4.O.Z.2006. ti. l.'urther, it is pertinent to note that the petitioncr r,r,as aged about (43) ycars at the time of filing the present writ petition r trrc year 2007, Thus, it is evident that he would now be aged about (61)y ears. Therefore, on this ground too, this Court is not inclined to gran an\, relief to rhe pctilioner. 9 PK, J W.P.No4@9 of 2OOZ 9 In view of the above, the present Writ petition is devoid of mefits and it is liable to be dismissed.

10. Accordingly, the Writ petition is dismissed Miscellaneous applications, if any, pending in this writ petition, shall stand closed. No costs. SD/. A. JAYASREE . -'.''- ASSISTANT REGIS //TRUE COPY// SECTION OFFICER To

1. Two CCs to GP FOR IABOUR, High Court for the\5 e of Telangana at Hvderabad. [OUTI One CC to SRI A.K One CC to SRI N.CHANDRA SEKH AR, Advocate (OPUC) Two CD Copies JAYAPRAKAS H RAO, Advocate [OPUCI

2. 3. 4. SA BM ^+ :ffilx'(.)'t, '>_r\ '' r ttB ztffi :iii ' ii,7 a/ \r - -, /l I 7ySV1ti.\.);t/ .--.....---'2 ,;i i.J tL HIGH COURT DATED:2310712025 ORDER WP.No.4099 of 2007 DISMISSING THE W.P WITHOUT COSTS. @ ^lf d,u