CORAMTHE HONOURABLE MR v. The Presiding Officer, Labour Court, Madurai.2.U.Sivamani

IN THE HIGH COURT OF JUDICATURE OF MADRASDATED: 28.11.2007CORAMTHE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALWRIT APPEAL NO.1158 OF 2002InWRIT PETITION NO.11080 OF 1994The Management of MarudhupandiyarTransport corporation, MarudhapathiKaraikudi-623307, rep.by itsManaging Director, [now known asTamil Nadu State Transport Corporation [Kumbakonam Division III] Limited. .. Appellant/PetitionerVs1.The Presiding Officer, Labour Court, Madurai.2.U.Sivamani..Respondents/Respondents[Cause title accepted as per Order of the Court dated 17.04.2002 in WAMP.No.1853/02]Appeal filed under Clause 15 of the Letter Patent against the orderpassed in W.P.No.11080 of 1994 dated 22.01.2002 Writ of Certiorari callfor the records from he file of the Ist respondent in I.A.No. 217/1990and quash the order passed therein dated 27/7/1993.For Appellant:Mr.S.JayaramanFor Respondents:Mr.P.GurusamyJUDGMENTM.VENUGOPAL, J.The appellant in the writ appeal, viz., Tamil Nadu State TransportCorporation [Kumbakonam Division III] Limited, is the petitioner in thewrit petition No.11080 of 1994. The appellant/State TransportCorporation has filed the writ petition as against the award passed bythe first respondent, the Presiding Officer, Labour Court, Madurai,dated 27.07.1993 in I.D.No.217 of 1990. https://hcservices.ecourts.gov.in/hcservices/

2.The second respondent/employee was in the services of theappellant Corporation as Conductor in Aruppukottai Branch and when hewas on duty in the bus bearing Registration No.TML-2307, the route beingbetween Aruppukottai and Paraitchi on 21.04.1988 at 5.50 p.m., theChecking Inspector while checking the bus, found that one of thecommuters out of 36 was in possession of a ticket numbering ML-16/18649to the value of Rs.1.10/- which had no nexus to the concerned trip. Onenquiry, the commuter answered that the ticket was given by the secondrespondent/conductor. The appellant/writ petitioner/respondent framedcharges against the conductor and after the completion of enquiry,considering the seriousness of the misconduct, dismissed him fromservice. The second respondent/conductor filed I.D.No.217 of 1990before the Presiding Officer, Labour Court, Madurai, the firstrespondent herein and the Labout Court, ultimately, came to theconclusion that the enquiry was held by the appellant/State TransportCorporation in a proper fashion and the charges were proved. The firstrespondent/Labour Court held in its award that the secondrespondent/conductor was guilty of the charges and in regard to themisappropriation of meager amount of Rs.1.10/- had gave a finding thatthe punishment of dismissal was excessive and resultantly, the firstrespondent/Labour Court set aside the dismissal order passed by theappellant/State Transport Corporation while exercising its power undersection 11-A of the Industrial Disputes Act and ordered reinstatement ofthe second respondent/conductor with continuity of service and 50% ofbackwages.3.The State Transport Corporation has filed the writ petition inWP.No.11080/1994 as against the award dated 27.07.1993 passed by theLabour Court. The Learned Single Judge by his order dated 22.01.2002 inthe writ petition has observed that the award passed by the firstrespondent/Labour Court was untenable and set aside the same, butconsidering the facts and circumstances of the case that the age of thesecond respondent/conductor was about 33 years and the fact that he waspaid with wages under section 17-B of the Industrial Disputes Act andsince he was not working anywhere till today and the fact that there wasno previous complaint against him, directed that the secondrespondent/conductor should be employed afresh; but he should not begiven the work of a conductor instead he may be provided with theemployment in the same cadre not involving financial dealings and withthis modification allowed the writ petition in part.4.Aggreived against the order passed by the learned Single Judge inW.P.No.11080/1994 dated 22.01.2002, the State Transport Corporation haspreferred this writ appeal.5.The learned counsel for the appellant/State Transport Corporationcontends that the learned Single Judge while passing orders inW.P.No.11080 of 1994 dated 22.01.2002 after coming to the conclusionthat the award passed by the Labour Court was untenable and that afterhaving upheld the punishment and set aside the order ought not to havegiven a direction that the second respondent/conductor should beemployed afresh and that he should be given the work of a conductor but https://hcservices.ecourts.gov.in/hcservices/ may be provided with the employment in the same cadre no involvingfinancial dealings and that the direction so issued is beyond thejurisdiction vested under Article 226 of the Constitution, when thedismissal was upheld. It is the specific contention of theappellant/State Transport Corporation that the learned Single Judge,after having rendered a clear finding that the secondrespondent/conductor committed misappropriation, ought not to havedirected re-employment of him in the same cadre not involving financialdealings. According to the learned counsel for the appellant/StateTransport Corporation that the misconduct committed by the secondrespondent/conductor was a serious one, more so, when the employee washaving fiduciary relationship with the employer and therefore, noleniency should be shown to him.6.Learned counsel for the appellant/State Transport Corporationpressed into service another contention that there was no post equal tothat of conductor in the Corporation and that the number of posts andpostings are governed by Rules and Regulations, the direction given bythe learned Single Judge that the employee should not be given the workof conductor, but may be provided with employment in the same cadre notinvolving financial dealings was wholly unsustainable in the eye of law.It is further represented that the second respondent/conductor waswarned on several occasions for various misconduct and also identicalmisconducts and was suspended for the same by way of punishment for 20days.7.In SHROUD’S Judicial Dictionary, the term ‘misconduct’ meansarising from ill-motive; acts of negligence, errors of innocent mistakedo not constitute such misconduct. The omission to do what is expectedof a person to do constitutes misconduct. Whereas, if such failure isdirected to intentionally, cause mischief or loss to any person; then itis called ‘willful misconduct’. Therefore, misconduct is a definiteword with a specific connotation. It cannot be gainsaid that when aperson has entered into a position of a servant and if he does somethingincompatible with the due or faithful discharge of his duty to hismaster, the latter has a right to dismiss him as per decision in PEARCEVS. FOSTER reported in 1886 [17] QB 536. The term misconduct is ageneric term. As a matter of fact the synonyms of misconduct are:1. Misbehaviour2. Misdemeanour3. Mismanagement4. Misdeed5.Delinquency and6.Offence8.It is not out of place to make a pertinent mention that theconcept of misconduct in employer and employee relationship is basedupon the nature and relationship itself and implied and expressconditions of services.9.Further more, the quantum of amount as misappropriated by theconcerned employee is irrelevant when there is fiduciary relationship https://hcservices.ecourts.gov.in/hcservices/ between the employer and employee, in our considered opinion and hecannot escape liability. The employee would be trust worthy and that his actswould justify the confidence of employer and that he will not act so asto prejudice or damage any interest of his master, that he will not actor conduct himself in a way which is inconsistent or incompatible withthe faithful discharge of his duties to the employer. As a matter offact, no precise scale of gradation to arithmetically compare thegravity of one from the other can be laid down by this court. In thepresence case on hand, the second respondent/conductor has not remainedclean.10.At this juncture, it is apt to point out that acts ofdishonesty/fraud certainly constitute misconduct of serious nature whichnot only attract dismissal but much else as there legal consequences asper the decision in 1963 [1] LLJ Page 250 between WORKMEN OF DEMA DIMTEA ESTATE VS. DEMA DIM TEA ESTATE. Misconduct is doing something oromitting to do something which is wrong to do or omit. Whereas theperson who is guilty of the act or omission knows that the act which heis doing, or that which he is omitting to do, is a wrong thing to do oromit it, therefore, follows that the misconduct may or may not bewillful. [LEWIS VS. G.W.RAILWAY CO.- 1877 [3] QBD 195].11.Misconduct arises if a person does what he should not have doneand does not do what he should have done or any unbusiness like conduct,including negligence or want of necessary care. [P.N.RAILWAY COMPANYVS. MOOLIGI SINAI COMPANY-AIR 1930 CALCUTTA 815].12.In 1999 [2] LLJ Page 194 between MANAGEMENT OF CATHOLIC SYRIANBANK LIMITED VS. INDUSTRIAL TRIBUNAL, MADRAS-104 AND ANOTHER, it isinter-alia observed that ‘the Industrial Tribunal cannot interfere withquantum of punishment if proved misconduct is grave in nature warrantingdismissal from service. In the present case on hand, the firstrespondent/Labour Court and the learned Single Judge have come to theclear conclusion, in the award dated 27.07.1993 and in the order dated22.01.2002 that the conductor was guilty of misappropriation ofRs.1.10/-. Further more, the learned Single Judge after having foundthat the second respondent/conductor committed a misconduct ofmisappropriation ought not to have given further direction for his re-employment, not to be given the work of conductor but to be providedwith the employment in the same cadre not involving financial dealingsand this direction issued by the learned Single Judge inWP.No.11080/1994 is unsustainable and the same is without jurisdiction,in our considered opinion. Even a single incident of misconduct, lack of fidelity, honesty would entaildismissal.13.It is to be remembered in the case on hand before us, the secondrespondent/conductor has issued a ticket bearing No.ML-16/18649 to apassenger to the value of Rs.1.10/- meant not for the particular https://hcservices.ecourts.gov.in/hcservices/ route/trip and he was caught red handed when the Checking Inspectorchecked the bus No.TML-3207 plying in between Aruppukkottai andParaitchi on 21.04.1988 at about 5.50 p.m. Moreover, when the firstrespondent/Labour court, came to the conclusion that the domesticenquiry conducted by the appellant/State Transport Corporation wasproper and charges were proved against the employee/conductor, then itought not to have directed reinstatement of the secondrespondent/conductor with continuity in service and 50% backwages andsuch a direction issued in exercise of the powers conferred undersection 11-A of the Industrial Disputes Act is not valid in law.14.At this juncture, it is pertinent to point out that a conductorwho deprives his Master of the Master's legitimate earnings must be heldto be guilty of misconduct. In 2006 [1] MLJ 987 between KARNATAKA BANKLIMITED VS A.L.MOHAN RAO, at page 988, the Hon'ble Supreme Court hasobserved that "it is not for the Court's to interfere in cases of grossmisconduct of this nature with the decision of the disciplinaryauthority so long as an inquiry has been fair and proper and misconductproved. In such matters, it is for the disciplinary authority to decidewhat is the fit punishment. In any case, of such a misconduct, it couldnever have been said that such termination of service is not theappropriate punishment."15.From the foregoing discussions and having regard to the factsand circumstances of the present case and consideration of availablematerial papers on record, we come to the inevitable conclusion that theaward passed by the first respondent/Labour Court, Madurai in ID.No.217of 1990 dated 27.07.1993 and the order passed by the learned SingleJudge in WP.No.11080/1994 dated 22.01.2002 are liable to be set asideand accordingly, the same are set aside in furtherance of substantialcause of justice.16.Learned counsel for the respondents/Workman brought to ournotice that 17-B wages were paid for some time by the appellant/StateTransport Corporation and thereafter, the same was not paid.17.Learned counsel for the appellant/State Transport Corporationsubmitted that 17-B wages was paid for sometime to the secondrespondent/conductor and later, after obtaining interim stay inWAMP.No.2163 of 2002 in WA.No.1158 of 2002 which was made absolute on03.06.2002, the same was not paid to the second respondent/conductor.The settled legal principle is that the workman will continue to getwages if stay on award of reinstatement is granted by the court andfurther that the payment of wages to a workman pending proceedings inhigher court as enshrined under 17-B of the Industrial Disputes Act isin the nature of subsistence allowance and the same will not beadjustable and not recoverable in our considered opinion.18.In that view of the matter, the appellant/State TransportCorporation is directed to pay the balance 17-B wages to the secondrespondent/conductor from the date of non-payment till date by means of https://hcservices.ecourts.gov.in/hcservices/ depositing before the first respondent/Labour court to the credit ofID.No.217 of 1990, if not already deposited and the same is directed tobe deposited by the appellant/State Transport Corporation within aperiod of one month from the date of receipt of a copy of this order.On such deposit, the second respondent/conductor is entitled to receivethe amount by filing appropriate application before the firstrespondent/Labour court.19.With the above direction, the writ appeal is allowed. No costs.ApSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Presiding Officer,Labour Court, Madurai.+ One cc to Mr. D. saravanan, Advocate SR 70355+ One cc to Mr. S. Jayaraman, Advocate SR 70236KM (co)sg 05/12/07Writ Appeal No.1158 of 2002