BANGALORE METROPOLITAN v. V NARAYANASWAMY

ORDER These writ petitions are by the Corporation. In Writ Petition No.12626/2006, the Corporation has called in question the award dated 03.03.2000 in I.D.No.47/2000 on the file of III Additional Labour Court, Bangalore.

2. This Court by order dated 15.09.2006, while granting interim order had directed the petitioner – Corporation to reinstate the respondent in service extract the work and to pay him the last drawn wages subject to the result of the writ petition. It is in pursuance of the said interim order, the respondent – workman was again reinstated, after the reinstatement, again he was charged for the misconduct of non-issue and non-collection of three tickets out of seven passengers, for which an enquiry was held and the Enquiry Officer submitted a report. Based on the Enquiry Report and the reply to the second show cause notice, the Disciplinary Authority before taking the final decision in the matter mentioned the same before this Court in Writ Petition No.12626/2006. After 4 the passing of the order of dismissal, the Corporation along with the order dismissal, filed an application before this Court on

29.12.2008, it is stated that, no orders are passed on the said application.

3. Respondent – workman as against the second order of dismissal, he sought a reference in Ref.No.53/2010, on reference, the Labour Court by its award dated 07.03.2012, set aside the order of dismissal and directed the Corporation to reinstate the respondent – workman with continuity of service and full backwages, as against which, Writ Petition No.27448/2012 is filed.

4. Smt.H.R.Renuka, learned Counsel for the petitioner - Corporation submitted that, the Labour Court after having held that the enquiry is fair and proper dis-believing the evidence of the Corporation, and based on new case alleged by the workman, has erroneously set aside the order of punishment. She relied on the charge memo at Annexure-D, interalia stating that the respondent – 5 workman was charge-sheeted for re-issue of two tickets, which were issued in earlier trip Nos.2 and 3 of denomination of Rs.2.25 paise to two passengers travelling from Domlur to HAL Kalyan Mantap; five tickets of denomination of Rs.2.75 paise from City Market to HAL 4th Stage, which were earlier issued in trip No.2; re- issue of two tickets of denomination of Rs.4.25 paise from City Market to Varthur, which were earlier issued in trip No.2; re-issue of one ticket of denomination of Rs.4.25 paise and non-issue and non-collection in respect of three passengers of denomination of Rs.2.75 paise.

5. In reply to the charge memo, the respondent – workman had stated that, he had issued 63 tickets to the passengers, further even before the Enquiry Officer, he had stated that, he had issued 63 tickets. However, before the Labour Court, in his claim petition at para-7, the respondent has alleged that, there were 70 passengers and he had issued tickets to 63 passengers, in respect of 9 passengers, who had found without ticket, were just boarded the bus at sub-stage, as such, the respondent could not issue tickets to 6 said passengers.

6. Referring to these documents, learned Counsel for the petitioner – Corporation submitted that, in reply to the charge memo and in the enquiry, respondent never made any statement that there were 70 passengers or from amongst 70 passengers, 9 passengers were about the board the bus and he could not issue tickets, but it was his specific case that he had issued 63 tickets. In the claim petition, the respondent has tried to make out a new case before the Labour Court.

7. To prove the charge before the Enquiry Officer, the Corporation had produced the statements of the ticketless passengers and each of the passengers has given a statement as to the place from where they boarded the bus and where they were to reach and also the denomination of the ticket. However, one of the passengers, who is examined as witness in support of the 7 respondent, in his evidence he has stated that, they were 10 in number and the Mastry, who had purchased 10 tickets, got down at Domlur bus stop from the hind door and their tickets remained with the said Mastry.

8. Learned Counsel submitted that, though the said witness is not cross-examined, but his evidence is contrary to the documentary evidence produced by the Corporation during the course of the enquiry, such as, statement of the passengers recorded on the spot wherein said passengers have specifically stated that, they were travelling from City Market or from Domlur to HAL Kalyan Mantap, to different destination, they were not in group, as such, said evidence does not prove the case of the workman and also cannot be relied, as it is not in consonance with the other evidence on record. Referring to these documents, learned Counsel for the petitioner submitted that, the findings of the Labour Court, are contrary to the evidence on record. Labour Court only relying on the claim statement and the evidence of the workman wherein 8 he had stated that, there were 70 passengers, it accepts the new case sought to be made out by the respondent – workman by observing that, out of 70 passengers, 56 passengers were having tickets and 5 passengers were having the passes and remaining 9 passengers, they had just boarded the bus and holds that, the charge alleged is not proved. Further submitted that, the Labour Court strongly relied on the evidence of MW-1, who in his evidence has stated that, there was an entry of 5 pass holders in the way bill and has also stated that, out of 63 passengers, 60 passengers had “¤UÀ¢vÀ” tickets, however, by mis-interpreting the statement of the Management witness, the Labour Court holds that, the charge is not proved. What is stated by the witness is not that the tickets were valid, but 60 passengers were having tickets and the next sentence in his evidence was clear that, out of 63 passengers, 60 passengers were having tickets and 3 were not having tickets. This could not have been read otherwise to interpret that 63 passengers had valid tickets. 9

9. She also submitted that, when it is admitted by the respondent – workman that 63 passengers were issued tickets and they were all the passengers in the bus, reference to 5 pass holders in the way bill does not make any change.

10. When the evidence produced before the Enquiry Officer has proved the case of the pilferage of the Corporation revenue with the material documents, while reversing the order of punishment, Labour Court must rely on the entire evidence and find out whether the findings of the Enquiry Officer are perverse or not. Relying on a stray sentence without reference to the context in which it is made and giving a finding to the contrary to the evidence led before the Enquiry Officer, is unsustainable.

11. As far as the entry in the way bill is concerned, 56 tickets entries are made, since the bus travels from City Market to HAL, at various stages, the entries are made, that will not have any bearing as far as pilferage is concerned. 10

12. Apart from this, in the first case, when the order of dismissal was passed, respondent was involved in 84 past cases. Even after the interim order passed by this Court and after the reinstatement of the respondent, he was again involved in 11 other cases and out of which, two are red mark. Neither at the first instance nor at the second instance, the Labour Court should have reversed the order of dismissal on the basis of unplaced sympathy. It is also submitted that, when the matter was pending in W.P.No.12626/2006 and reinstatement of the respondent was in pursuance of the interim order subject to the result of the writ petition, after the second enquiry, an order of dismissal was passed and same was produced by filing an application before this court, as such, there is no need to seek approval under Section 33(2)(b) of the Industrial Disputes Act, as it is not an independent order of dismissal, but it is an order of dismissal in pursuance of the interim order of reinstatement passed by this Court subject to the result of the writ petition and submitted that, even otherwise also, the order of dismissal is not disproportionate or harsh. 11

13. Sri.A.J.Srinivasan, learned Counsel for the respondent – workman submitted that, even according to the documents produced by the Corporation as per Ex.M1- way bill, which is referred to by the Labour Court, the total number of tickets issued were 56. But the case of the Corporation is that, 14 passengers were travelling with either re-issue of tickets or non-issue non- collection. If 56 tickets are mentioned in the way bill, the figures referred to by the Corporation that 63 passengers were travelling does not tally. He also relied on the evidence of MW-1 and submitted that, MW-1 has admitted that, there is an entry of five pass holders in the way bill and his evidence also shows that, out of 63 passengers, 60 passengers had valid tickets. It is the case of the workman that, there were totally 70 passengers, out of which 56 had been issued tickets, 9 were about to board the bus, they could not be issued ticket and 5 were the pass holders, this clearly tallies the figure 70 passengers. The Labour Court has held that, the case 12 of the respondent probabalises on the basis of the evidence on record and submitted that, when the material produced by the Corporation does not prove the charge, the Labour Court was justified in reversing the order of dismissal.

14. He also relied on the evidence of passenger examined by the respondent, who in his evidence has stated that, they were 10 in number and they could not take a ticket, as the ticket was taken by the Mastry, who got down before the bus was intercepted and that evidence has not been challenged by the Corporation by cross-examining said witness.

15. Even otherwise, he submitted that, all the cases alleged against the respondent were cases of non-issue non-collection of fare and the Labour Court, though has held that the charge is not proved, but not granted the backwages and consequential benefits, the award of the Labour Court is just and proper and does not call for interference. 13

16. It is not in dispute that, the respondent was dismissed by the Corporation on the allegation of pilferage of Corporation revenue by order dated 15.04.1999 and enquiry was held against him. The charge alleged against the respondent was of re-issue of 11 tickets of previous trips and three cases of non-issue non- collection. The Corporation had produced the statements of passengers recorded on the sport as per marked Ex.M3 series. From these statements, it shows that the passengers were travelling from City Market to Vrthur, City Market to HAL Kalyan Mantap, Domlur to HAL Kalyana Mantap. Their statement does not reveal that they were travelling in a group. In reply to the charge sheet, respondent has stated that, he had issued 63 tickets to the passengers and does not dispute that the bus was intercepted. Respondent was also issued offence memo as per Annexure–B, he has signed the said offence memo wherein number of passengers is mentioned as 63 and it also reveals as regard to the re-issue of tickets and non-issue of tickets. Before the Enquiry Officer, it was 14 not the case of the respondent that, 9 passengers just boarded the bus and he could not issue the tickets. However, before the Labour Court, in his claim statement for the first time, he sought to make out new case of 70 passengers, out of which, 9 passengers stated to have been just boarded. Neither in the reply to the charge sheet nor during the course of the enquiry, such a defence was raised.

17. In case the Labour Court holds that, the enquiry is fair and proper, the only ground on which the order of dismissal or punishment could be reversed is on the perversity of the findings of the Enquiry Officer or on victimization. Perversity has to be found on the basis of the evidence led before the Enquiry Officer, to find out whether the findings of the Enquiry Officer is in consonance with the evidence, but not on the basis of a new case sought to be made out before the Labour Court. There is no allegation of victimization, but the Labour Court while considering the issue of perversity and victimization, it relies on the claim statement to observe that, the case of the respondent that there were 70 15 passengers travelling out of which, 5 passengers had the bus pass and 9 passengers were about to board and way bill shows 56 passengers were issued with the tickets, this proves that there were 70 passengers. However, it was not the case of the respondent before the Enquiry Officer.

18. No doubt, Ex.M1 shows that, 56 tickets were issued. No doubt, entry in way bill shows that, 5 passengers had the pass. But argument of the learned Counsel for the petitioner - Corporation was that, the bus started from City Market to HAL and as such, during the course of this, entries are made. If the case of the respondent before the Enquiry Officer was only 63 passengers, the Labour Court should consider the evidence and the material produced before the Enquiry Officer to find out the perversity and not on the basis of new case sought to be made out before it for the first time.

19. As far as witness examined by the respondent – 16 workman, who has not been cross-examined by the Corporation is concerned, he has stated that, they were travelling in a group of 10, Mastry, who had purchased 10 tickets, got down at Domlur and as such, they did not had the tickets. This evidence not only goes contrary to the passengers' statement as per Ex.M3, but also to the statement of the respondent himself. Respondent in his reply has stated that, there were 63 passengers, he did not mention of 9 passengers just boarded. It is not even in his statement that, 9 passengers had taken ticket but it is his specific case that, 9 passengers had just boarded, apprehending that they will be fined, they picked up the waste tickets thrown in the bus, as such, the evidence of said witness, though is cross-examined, does not become relevant.

20. As far as the reliance placed on the evidence of MW-1 to show that, out of 63 passengers, 60 passengers had valid ticket, the Labour Court wile reading the said statement has not read in the context it is mentioned. The statement shows that, out of 63 17 passengers, 60 passengers had tickets and that 3 passengers had no tickets. This only clarifies that, out of 63 passengers, 60 passengers had the tickets and 3 had no tickets, but it does not mean that, 60 tickets were valid. Even the charge is that, three passengers were travelling without ticket. However, the word “¤UÀ¢vÀ” is interpreted to mean valid ticket and thereby the Labour Court holds that the charge is not proved. Such interpretation goes contrary to the evidence on record.

21. In my opinion, the said reading is not only based on misreading, but it is contrary to the entire case on record. It is also not disputed that, in respect of 3 passengers, who had not purchased the ticket, they had paid the penalty.

22. From the evidence before the Enquiry Officer, it proves that 11 passengers were given re-used tickets, the explanation offered by the respondent is that, in the apprehension, they must have picked up the used tickets thrown in the bus. In my opinion, such explanation does not justify for 11 passengers travelling with 18 used ticket.

23. Apart from this, when first order of punishment of dismissal dated 07.12.1999 was passed, this respondent was earlier involved in 84 pilferage cases, even then, this Court by interim order in compliance with Section 17-B of the Industrial Disputes Act had directed the Corporation to reinstate and extract the work from the respondent. After the reinstatement also, very same respondent is found involved in another pilferage case, for which an enquiry was held and again, he was dismissed, which is impugned in the connected Writ Petition No.27448/2012. It is also submitted that, after the reinstatement in pursuance of the interim order on 26.10.2006 within two years, he was involved in 11 pilferage cases, amongst 11 pilferage cases, 2 were red-mark.

24. Further, as far as the second award passed by the Labour Court in Reference No.53/2010 is concerned, the Labour Court 19 only on the ground that, there is violation of Section 33(2)(b) of the I.D.Act, has set aside the award. However, it must be mentioned that, reinstatement of the respondent was not in pursuance of any award, but it was in pursuance of the interim order passed by this court in W.P.No.12626/2006 and interim order dated 15.09.2006 reads as under: “Issue notice. Stay as prayed for subject to the condition that the petitioner reinstate the respondent in service, extract work and to pay him the last drawn wages subject to the result of this writ petition.” Thus, the reinstatement of the respondent was subject to result of the Writ Petition No.12626/2006 and has nothing to do with the pendency of any dispute, as such, the said reasoning is not sustainable in law.

25. Having regard to the misconduct and the order of punishment and having regard to the past history of the respondent and for the circumstances narrated above, I do not find that the 20 order of dismissal is shockingly disproportionate to the charge alleged against the respondent. An employee, who got the reinstatement by way of interim order in a pending writ petition, at least thereafter he could have been sincere and honest, but even after that, he had indulged in similar 11 cases. In one case, enquiry was held and he was dismissed.

26. Having regard to these circumstances, I find no reason to modify the order of dismissal. Accordingly, both the Writ Petitions are allowed. The impugned awards in I.D.No.47/2000 dated 3.3.2000 and Reference No.53/2010 dated 07.03.2012, are hereby quashed. The order of punishment passed against the respondent stands confirmed. However, it is made clear that, the respondent - workman was reinstated into service on 26.10.2006, he was on duty till he was dismissed from service on 14.11.2008. It is not in dispute that, during this period, this Court also directed to make payment by 21 extracting work, as such, the respondent in entitled for calculation of gratuity and other monetary benefits for the said period, for which he had worked and accordingly, if there is any claim due or not met by the Corporation, the respondent is entitled to make a proper claim and if such claim is made, the Corporation to consider the same in accordance with law. Sd/- JUDGE KNM/DP