Judgment:
V.S. Sirpurkar, J.
1. This petition has been filed by the Transport Corporation called Pandian Transport Corporation which is a statutory Corporation. An award of the Labour Court, Madurai dated September 30, 1992, is challenged whereby a conductor who was ordered to be dismissed in the domestic enquiry was directed to be reinstated by the Labour Court though, the Labour Court found that the said conductor would not be entitled to the back wages.
2. Following is the factual panorama :
The Respondent conductor was put in two years of service as an apprentice and his period of apprenticeship was extended by six months further. It was during this period that on December 2, 1983 the bus in which he was on duty being TNM-5357 came to be checked by the checking staff during its trip to Marampatti. The checking was done at 11.45 AM at Choodamanipatti Division. It was found during that checking that 0.90 paise ticket bearing No. 30744 was issued to a passenger travelling in the bus. It was punched both in the 'up' first stage and in the 'down' 10th stage. The said ticket was recovered from the passenger who put his signature behind the back. Two other tickets bearing Nos. 30745 and 30746 issued were also recovered from two other passengers who were travelling from Kulathur to Vedasandur which were similarly punched both in 'up' 6th stage and in the 'down' 10th stage, thereby, clearly bringing out the position that the conductor was using once used tickets. Necessary investigation was done, statements were recorded and on that basis, a domestic enquiry was ordered against the conductor. A detailed domestic enquiry ensued. Witnesses were examined and cross-examined and a full opportunity came to be given to the respondent conductor. He also examined three witnesses who were cross-examined by the management. Enquiry was completed on March 19, 1984. The enquiry officer submitted a report that the misconduct of the conductor by putting the Corporation to the monetary loss by using the used tickets and thereby misappropriating the amount of the ticket was held to be proved.
3. A second notice came to be issued on the question of quantum of sentence proposing a sentence of dismissal wherein a clear reference was made to the previous records of the conductor which was taken into consideration and ultimately not being satisfied with the explanation offered by the conductor, he came to be dismissed. The dismissal was naturally challenged and an industrial dispute was referred to the Labour Court, Madurai, vide I.D. No. 219 of 1989.
4. The Labour Court, in all, framed four issues and found that the enquiry against the petitioner was conducted in accordance with law and principles of natural justice. He also endorsed the finding by accepting the enquiry report that the charges against the respondent were proved. He, however, came to the conclusion that the petitioner should not have been dismissed and the punishment of dismissal is disproportionate to misconduct. In that, the Labour Court used its discretion under Section 11-A of the Industrial Disputes Act and directed reinstatement, but, deprived the conductor of the backwages. It is how the operative portion of the award goes:
'In the result, the industrial dispute is allowed in part, and held that the dismissal of the petitioner Balraj from service by the management is not correct and that he should be reinstated with continuity of service. Considering the offence committed by him, the backwages need not be paid to him. Each party to bear his own costs.'
(Original award was in Tamil. However, it was got translated and both the parties agree that the translation relied on by the Court is correct.)
5. Learned counsel for the petitioner assails this award and submits that this award is nothing but, display of perverse reasoning by the Labour Court. Learned counsel says that while the Labour Court has held that the charge regarding the misconduct stands proved, yet, the Labour Court has awarded reinstatement for the non-existent reason that the management did not produce before the Labour Court the past record of the workman. Learned counsel, for the petitioner invites my attention towards the observation in Paras. 12 and 14 where the question of punishment has been dealt with by the Labour Court. In Para. 12, the Labour Court has taken note of the fact that in Ex.M. 14 which is a second showcause notice, a statement appears that the management had taken into consideration the past record. Not only this, but there itself it was also stated that the petitioner was warned for 12 times regarding loss of tickets. The Labour Court then finds fault with the management by further suggesting that the details of this incident have however, not been stated in the second show-cause notice.
6. Then, the Labour Court has made a general observation without there being any support for the same. The observation is to the following effect:
'In town buses, passengers are taken beyond the capacity. Further, since the bus stops are in short distances, chances are there for the passengers who board the bus and alight from it without obtaining tickets.'
One fails to follow the basis or the significance of this sentence in the order. It was not the case where the conductor was accused of not making relevant entries. It was a case where the Conductor was accused of selling used tickets to the passengers.
7. One fails to understand as to what is the implication of the above statement. Be that as it may. The Labour Court then goes on to record that the management ought to have produced the documents by which warnings were given. Then the Labour Court makes a reference to a ruling in Madhavan v. Commissioner of Income Tax : (1983)IILLJ356Ker , which is completely irrelevant for the question involved. That ruling is regarding the nature of the punishment of censure. The Labour Court has then made a reference to the decision in 1984 (2) L.L.N. 607 in which it has been held as follows, in Para. 5, at page 611 :
'the management is obliged to place before the Labour Court as to what are the particulars of the past record which had been taken into account in respect of each one of the workmen....'
8. In Para. 13, the Labour Court then records a finding that the enquiry against the petitioner was conducted in accordance with law and natural justice and charges against him have been proved. Then the Labour Court considers further the question of punishment in Para. 14 and holds that the punishment imposed on the petitioner is excessive and that the petitioner is entitled to the relief under Section 11-A of the Industrial Disputes Act. The Labour Court, records that though the charges against the petitioner have been proved prima facie, the punishment of dismissal from service is excessive. The Labour Court again finds fault with the management that it had not proved the lapses in the past service. It is generally on these reasons that in Para. 15, the petitioner is held entitled to a discretion under Section 11-A of the Act and consequent reinstatement with continuity of service. It is really pathetic that the Labour Court could not have considered the devastating effects of the conductor's behaviour in a dishonest manner.
9. Learned counsel for the petitioner points out that if in just one trip this conductor was caught using three used tickets, that too, in the beginning of the day, i.e., at 11.45 AM, then, he can swindle the Corporation in a substantial manner because, conductor is generally required to take at least 15 trips in a day. Learned counsel then pointed that perhaps the Labour Court was swayed by the insignificant amount of Rs. 2.70 involved in the case. However, learned counsel points out that insignificance of the amount was not the question in issue. According to the learned counsel if this conductor who was an apprentice and whose apprenticeship period was extended by six months after his bare two years of service, had started his activities, then that by itself was sufficient to warrant a punishment of dismissal. According to the learned counsel, the Labour Court has not considered anything and the perversity in the judgment is that a man who has been found guilty has been awarded with reinstatement with continuity of services. When seemingly it is tried to be done, he has been only deprived of his backwages. Learned counsel has also very heavily relied on the decision of the Supreme Court in Chandull Sendhall v. Gujarat States RTC. Himmatnagar 1996 (1) L.L.N. 119, as also in Govindarajula v. K. P. V. Shaik Mohammed Rowther and Company (Private). Ltd. : (1996)IILLJ593Mad , a decision of this High Court.
10. On the other hand, learned counsel for the respondent supported the award and pointed out that the High Court in its writ jurisdiction should not normally interfere with the awards more particularly on the question of punishment. Learned counsel for the respondent has relied on the ruling of the Full Bench of the Rajasthan High Court in R.S.R.T. C. v. Gopal Singh, 1999 III LLJ (Suppl) 810, and more particularly the contents of Para. 13. Learned counsel has also relied on the other cases like Eswaran and Sons Engineers (Private) Ltd v. Third Additional Labour Court and Anr., 1997(4) L.L.N. 307 and Hindusan Machine Tools, Ltd. v. Mohammed Usman, : (1983)IILLJ386SC and Scooter India, Ltd v. Labour Court, Lucknow : (1989)ILLJ71SC . I am afraid, the cases relied on by the respondent would be of no consequence for the simple reason that the jurisdiction of the High Court to interfere has not been disputed anywhere. What is sugested is that unless perversity of the award is seen and unless it is found that the award could not have been passed reasonably interference by the High Court should be avoided. According to him, this would be a clear case where no such perversity has been shown by the Labour Court. As has already been pointed out, the Labour Court has completely missed the devastating effect of corruption done by the conductor in the morning of his career. The Labour Court has merely recorded its opinion that the punishment is excessive without giving any reason as to why it has held that the punishment of dismissal is excessive to the misconduct committed.
11. Once, the Labour Court has to give a finding regarding the quantum of sentence, then, the Labour Court must appreciate the nature of misconduct, its effect, the attendant circumstances under which the misconduct has been committed and other allied factors, like whether the misconduct has been done out of ordinary human weakness. It is then that the question of severity of the punishment has to be considered in strict comparison with the misconduct. Such a comparison is nowhere to be found in the judgment. What is found is a bare opinion on the part of the Labour Court that the punishment of dismissal is disproportionate. Even the reliance on the ruling in 1984 (2) L.L.N. 607 (supra) is of no consequence particularly because, the factual phenomena of the case is neither discussed nor bothered to be considered by the Labour Court. In the case in Uttar Pradesh State Road Transport Corporation, v. Basudeo Chaudhary (1997) 2 S.C.C. 370, while considering the question of nature of punishment, the Apex Court has specifically observed that having regard to the misconduct that has been found especially, against the petitioner, it is not possible to say that the Corporation in removing from service, has imposed a punishment which is disproportionate to the misconduct and therefore set aside the judgment of the High Court.
12. There, the charge was that the Conductor serving in U.P. State Road Transport Corporation had charged higher amounts to the passengers and had given the tickets of the lower denomination to 23 passengers and in the process had defrauded the Corporation by Rs. 65. He had also tampered with the record. In Para. 4 the Supreme Court observed:
'.... it is evident that this is a case where thepetitioner had tried to fabricate the recordregarding recovery of fare to show that thepassengers had travelled for a lesserdistance from Khalliabad to Gorakhpuralthough they had actually travelled to Bastito Gorakhpur. The misconduct that, wasfound established was thus serious in natureand the Labour Court has rightly upheld thepunishment of removal from service thatwas imposed on the petitioner.'
Circumstances are no different in the present case. Here also though the nature of misconduct is different, the conductor has tried to defraud the management by selling already used tickets. In this behalf, a Division Bench of our High Court in Govindarajulu v. K.P.V. Shaik Mohammed Rowther and Company (Private), Ltd. (supra), has held that the Industrial Tribunal could not have rewarded the workman with reinstatement, once he was found guilty of the misconduct. In Para. 8 of the judgment the Court observed : (1996)IILLJ593Mad :
'8. We are unable to agree with the learned counsel for the appellant/workman that the learned Judge ought not to have interfered with the indulgence shown by the Tribunal under Section 11-A of the Industrial Disputes Act. Likewise, we are unable to countenance the contention of learned counsel for the appellant that the learned Judge has exceeded his jurisdiction in interfering with the award of the Tribunal.
We have already observed that the direction given by the Tribunal directing the management to reinstate the workman is wholly perverse and uncalled for and that the said direction cannot be sustained on any legal principle. The learned Judge in our view, is right in not considering or placing any reliance upon the workman's past conduct in deciding as to whether the dismissal of the workman by the management was in accordance with law. The charge against the workman having been established before the enquiry officer, the order of dismissal was fully justified. The Tribunal in our opinion, would not have as it purported to convert the penalty into a reward by exercising the power under Section 11-A of the Industrial Disputes Act....'
The emphasised portion states the nature of perversity displayed in the order. The facts of this case apply on all fours to the present situation. Similar views have been expressed by the Punjab and Haryana High Court.
13. Learned counsel for the respondent has invited my attention to the observations of the Division Bench in Harjinder Singh v. State of Punjab and Anr. 1999 (4) L.L.N. 604. That judgement in reality helps the petitioner more than the respondent herein. It is clearly held there that where Industrial Tribunal's award is found to be perverse it can be interfered with by the High Court under its constitutional jurisdiction. The other cases do not deserve to be considered for the simple reason that they are not applicable to the facts of the present case.
14. In the result, the order passed by the Labour Court cannot be sustained. It is set aside. The writ petition is allowed, but without order as to costs. This allowing of the writ petition shall, however not entitle the petitioner from recovering the salary which has been paid so far under the provisions of Section 11-A of the Industrial Disputes Act. Consequently, pending WMP is dismissed.