AT JAIPUR BENCH, JAIPUR v. The Managing Director, RSRTC & Anr.

Shri Ramavtar Sharma & Anr. DATE : 28th March, 2012 HON'BLE THE CHIEF JUSTICE MR.ARUN MISHRA HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I Mr.Mukesh Kumar Verma, for appellants. No one has put appearance on behalf of respondents though served. In this intra court appeal, the legality of the order dated 20th October, 2005 passed by Single Bench in CWP No.4954/2002 affirming the award passed by Industrial Tribunal has been put into question. The Industrial Tribunal (hereinafter referred to as 'the Tribunal') issued a direction of reinstatement of the workman. The workman was found guilty of carrying three passengers without ticket after realizing the fare from them. It was a loss of confidence and his dismissal was ordered after departmental enquiry by the employer. The Tribunal has upheld the finding of the guilt that the respondent-workman was found guilty of taking three passengers without ticket after realizing fare and approved misconduct. Said finding has attained finality, however, the 2 Tribunal has interfered on the ground that it was disproportionate punishment as only three passengers were taken without ticket after realizing the fare from them. The punishment was found to be disproportionate to the misconduct. Single Bench has dismissed the writ application, hence, the intra court appeal has been preferred by the employer. Shri Mukesh Kumar Verma, counsel appearing on behalf of appellant, has submitted that it was a case of loss of confidence and serious misconduct had been committed by the employee. Interference could not have been made by the Tribunal and reinstatement could not have been ordered. No one has put in appearance on behalf of the respondents though served. After hearing learned counsel for appellant, going through the record and the finding recorded by the Tribunal, we find that Tribunal has affirmed finding that the misconduct was established. It was a case of misconduct of taking three passengers without ticket after realizing fare from them. It was a case of gross misconduct. It was not the question that how much money has been misappropriated. Misappropriation of one single penny is enough to loss of confidence. Such an employee is not entitled to be retained in service. In Karnataka State Road Transport Corporation vs. B.S. Hullikatti, 2001 LLR 259, the Apex Court has taken a view that in the case of such a misconduct of charging less fare, was either dishonest or was so grossly negligent that respondent was not fit to be retained as 3 conductor because such action or inaction on his part is bound to result in financial loss to appellant-Corporation. Reinstatement could not have been ordered. In Regional Manager, Rajasthan State Road Transport Corporation vs. Sohan Lal, (2004) 8 SCC 218, it was laid down that when bus conductor was found in the bus without issuing ticket to the passengers, such an action of conductor leads not only to monetary loss to Corporation, but also loss of confidence in employee. In such cases reinstatement of such an employee by virtue of a judicial order is an act of misplaced sympathy which can find no foundation in law or in equity. The Apex Court has laid down thus : “10. We notice from the finding of the Industrial Tribunal that the respondent workman had indulged in misconduct which has not only led to monetary loss to the Corporation but the Corporation has also lost confidence in the said workman. Therefore, to continue such an employee in the employment of the Corporation by virtue of a judicial order, in our opinion, is an act of misplaced sympathy which can find no foundation in law or in equity. The finding that the workman has committed the misconduct in question of not issuing tickets to passengers is a finding of fact arrived at by the Tribunal after taking into consideration the evidence recorded therein. This finding was affirmed by the learned Single Judge and the High Court has not set aside the finding. Therefore, the question of moulding the relief on the facts of this case did not arise at all. The offer of the respondent to forego the back wages in lieu of his being re-instated is not an offer to be taken into consideration by the court unless and until the finding of the tribunal on misconduct was set aside and having perused the records including the order of the tribunal, we are satisfied that this is not one of those cases in which there was room for setting aside such a finding.

11. Assuming for argument sake that the High Court by the impugned order proceeded on the 4 basis that though the misconduct is proved the punishment was disproportionate and it is on that basis that the impugned order is made, even then we are unable to agree with the order of the Appellate Bench of the High Court because it is not the normal jurisdiction of the superior courts to interfere with the quantum of sentence unless the said sentence is wholly disproportionate to the misconduct proved. No such finding has been recorded by the Appellate Bench in the impugned order. Since the misconduct proved is one of dishonesty, the quantum of loss is immaterial, it is the loss of confidence that matters. In such a situation if the Tribunal chooses to uphold the order of dismissal and refuse to interfere with such termination and the learned Single Judge of the High Court agreed with the said order of the Tribunal, then the Appellate Bench ought not to have interfered with the quantum of sentence. Having perused the facts of the case we are in agreement with the finding of the Tribunal as well as learned Single Judge, hence, we are of the considered opinion that the Appellate Bench fell in error in interfering with the orders of the courts below merely on the basis of offer made by the appellant before it.” In A.P. SRTC vs. Raghuda Siva Sankar Prasad, (2007) 1 SCC 222, the Apex Court has laid down that when there is a loss of confidence, reinstatement is not appropriate. It was a case of theft, the punishment could not have been modified. In U.P. State Road Transport Corporation vs. Suresh Chand Sharma, (2010) 6 SCC 555, the Apex Court laid down that in a case of corruption/misappropriation, punishment should always be proportionate to the gravity of misconduct, the only punishment for corruption/ misappropriation is dismissal. The Apex Court has laid down thus :- “22. In Municipal Committee, Bahadurgarh v. Krishnan Bihari (1996) 2 SCC 714 this Court held as under: (SCC p.715, para 4) “4. ... In a case of such nature - indeed, in cases 5 involving corruption, there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant.” Similar view has been reiterated by this Court in Ruston & Hornsby (I) Ltd. v. T.B. Kadam (1976 ) 3 SCC 71, U.P. SRTC v. Basudeo Chaudhary (1997) 11 SCC 370, Janatha Bazar (South Kanara Central Coop. Wholesale Stores Ltd.) v. Sahakari Noukarara Sangha (2000) 7 SCC 517, Karnataka SRTC v. B.S. Hullikatti (2001) 2 SCC 574 and Rajasthan SRTC v. Ghanshyam Sharma (2002) 10 SCC 330.