Cheran Transport Corporation Ltd. Vs. Presiding Officer, Labour Court and anr. - Court Judgment

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labour and industrial - reinstatement - section 11a of industrial disputes act, 1947 - management challenged order of reinstatement of conductor and conductor challenged denial of back wages - whether labour court justified in ordering reinstatement of conductor without back wages when only one charge proved and other charges not proved - it is bounden duty of conductor to issue tickets to all passengers who got into bus - once misconduct proved labour court has jurisdiction to award appropriate punishment - it is discretionary power of labour court to award punishment under section 11a - discretion exercised by labour court in reasonable manner - held, order of reinstatement of conductor without back wages proper. - n.v. balasubramanian, j. 1. the writ petition w.p.no. 148 of 1991 is filed by the management and the writ petition w.p.no. 9966 of 1992 is filed by the workman/conductor. both the writ petitions arise out of the same order passed by the labour court, coimbatore, in i.d. no. 310 of 1986, dated august 28, 1990, and hence, both the writ petitions are dealt with together and the petitioner in w.p no. 148 of 1991 is hereinafter referred to as the management and the petitioner in w.p. no. 9966 of 1992 is hereinafter referred to as the conductor.2. the workman was a conductor in the management corporation and on april 12, 1985 he was assigned the duty of conductor of bus on the 22 kilometre long coonoor-kotagiri route, departing at coonoor bus stand at 6.45. a.m. and arriving at kotagiri at 7.45 a.m. the bus was checked at about 7.10 a.m. at sims park, coonoor, when the bus was on its way to kotagiri from coonoor. it seems that seven persons got down from the bus at that spot and the tickets of these persons were collected from them by the checking staff and it was found that one of the passengers was having a ticket of 70 paise intended for travelling from coonoor to vaidishola, a stage away from sims park. according to the management, the passenger should normally have a 60 paise ticket for travelling the stage from coonoor to sims park and when the passenger was enquired, he stated that he paid 60 paise only to the conductor and he wanted to travel from coonoor to sims park only. the case of the management is that the conductor was asked to explain as to why the passenger was holding a ticket for travelling up to vandhishola and the conductor was not in a position to explain the same. according to the management, after the said seven passengers got down at sims park, there were 27 adult passengers and one child in the bus and it was found that two adults did not have tickets. according to the management, on enquiry, it was found that one of them had neither paid the money for the ticket, nor got the ticket while another passenger had stated that he was travelling from coonoor to three roads and that he got a ticket for 70 paise after paying the fare but the ticket was got back by the conductor just before the bus reached sims park. according to the management, the conductor was not able to explain as to why the two passengers did not have tickets. the management on verification found that in case of one passenger, no fare was collected and in the case of another passenger though ticket was issued on payment of the fare the ticket was got back by the conductor from the passenger and given to the passenger who got down at sims park. the management also verified the tickets issued and the fares collected by the conductor at the and of the day and it was found that out of original tickets returned by the conductor on april 12, 1985, two tickets bearing nos. 075111 and 075112 were not submitted along with the invoice. there was no explanation from the conductor also. according to the management, there were also some other discrepancies in the collection sheet submitted by the conductor.3. on the complaint given by the checking inspector and the senior superintendent, mettupalayam, a show-cause notice was issued to the conductor and he was placed under suspension. later, his suspension was revoked and he was directed to join duty and an enquiry was held and the enquiry officer found that the charges were proved against the conductor. at the time of processing the enquiry report, an anonymous letter was received, according to the management, by the legal department of the management at coimbatore enclosing the two original tickets which were not submitted by the conductor along with the invoice after his duty on april 12, 1985. a show-cause notice was issued to him for deliberately sending the original tickets and the conductor denied the charge. the management accepted the enquiry report of the enquiry officer and proposed to punish him with a punishment of dismissal from service. a second show- cause notice was issued and ultimately by order, dated november 27, 1985, the conductor was dismissed from service. after getting the approval from the industrial tribunal, as an industrial dispute was pending before it, the order of dismissal was served on the conductor. the conductor raised an industrial dispute and the matter was referred to the labour court for adjudication. 4. the labour court, on a preliminary enquiry found that the inquiry proceedings were not duly and properly conducted and at the request of the management, the management let evidence before the labour court to prove the charges. the conductor did not let in any evidence. the labour court found that the charge with regard to the violation of standing order 14(ab), i.e. non-issuance of tickets to one passenger, had been proved, but accepted the explanation of the conductor in respect of other charges namely, issuance of 70 paise ticket to a passenger who got down at sims park, non-issuance of tickets to other passengers and incorrect invoice submitted by him as reasonable and held that those charges were not proved. the labour court after holding that the charge with regard to the violation of the standing order 14(ab) was proved, held that the punishment of dismissal from service was disproportionate to the charge proved and ordered reinstatement with continuity of service, but without back wages. the management has filed the writ petition, w.p. no. 148 of 1991 challenging the order of the labour court ordering reinstatement and the conductor filed the writ petition, w.p. no. 9966 of 1992 challenging the denial of back wages.5. learned counsel for the petitioner in w.p. no. 148 of 1991 submitted that the order of the labour court is not sustainable in law as the labour court has committed a serious error in appreciating the evidence before it and holding that all the charges except the one of non-issuance of ticket to a passenger were not proved for want of evidence. learned counsel for the management also submitted that after holding that the charge in respect of the violation of the standing order 14(ab) was proved, the labour court should have sustained the order of dismissal, as the misconduct proved was liable for punishment. she also pleaded that past record of the conductor clearly shows that there was proven misconduct and punishment was inflicted and she submitted that interference as regards the punishment is not valid on the facts of the case. according to her, the entire matter should have been considered and the court was not correct in reducing the punishment. 6. on the other hand, learned counsel for respondent 2 in w.p no. 148 of 1991 submitted that the order of the labour court does not suffer from any infirmity as the labour court considered the evidence on record and came to the conclusion that the charges levelled against the conductor, except the one of non-issuance of ticket to a passenger were not proved. he also submitted that the finding of the enquiry officer is not correct as he failed to take into account the relevant consideration. learned counsel also submitted that the labour court in exercise of jurisdiction conferred upon it under section 11-a of the industrial disputes act, 1947, has reduced the punishment and this court may not interfere with the reduction of punishment. learned counsel relied upon the provisions of the industrial disputes act, particularly, fifth schedule wherein the powers of the labour court are categorical and submitted that dismissal of the workman for misconduct of a minor character would amount to an unfair labour practice and the punishment of dismissal from service is disproportionate to the charge proved against the conductor. he also relied upon decision of the supreme court in the case of colour-chem, ltd. v. a.l. alaspurkar and ors. : [1998]1scr663 , and a decision of the andhra pradesh high court in the case of depot manager, andhra pradesh state road transport corporation v. v. dharma reddy 1994 (1) lln 622 and submitted that the charge proved is that the conductor has not issued ticket to a passenger and for non-issuance of ticket, denial of entire back-wages is not justifiable in law. according to him, though the conductor was reinstated in service, he was denied back wages and the punishment sustained by the labour court to the extent of denial of back-wages is also disproportionate and therefore, he pleaded that only stoppage of increment without cumulative effect for two years would be the effect for two years would be the proper and appropriate punishment. 7. i have carefully considered the submissions of the learned counsel for the parties. i am of the view that the order of the labour court does not suffer from any infirmity. in so far as the charges nos. 1 and 2 are concerned, they are interconnected. the first charge as i have already seen was that at the time of checking, it was found that one of the persons who alighted from the bus was having 70 paise ticket and according to the charge levelled against the conductor, the passenger had paid only 60 paise, but he was provided with 70 paise ticket. according to the management, the conductor has not denied. the labour court found that the charge was not proved for the reason that there was no statement by the passenger. the passenger was not examined either at the time of enquiry or before the labour court. the labour court was also of the view that it is always open to a passenger holding a ticket for seventy paise to get down at sims park and walk the distance to reach the place situate in between sims park and the next stop. that apart, the checking inspector has not examined the amount of cash in possession of the conductor at the time of checking by him and as it happened to be the first trip, the checking inspector could have easily found whether the statement of the passenger that he paid only 60 paise was correct or not from the amount of cash available with the conductor at that point of time. the labour court, in my view, has come to the correct conclusion in holding that the charge no. 1 was not found proved against the conductor. 8. in so far as the charge no. 2 is concerned, the case of the management was that the conductor had issued 10 paise ticket to one of the passengers found in the bus and the conductor got back the ticket from that passenger and gave it to a passenger who was alighting at sims park. the labour court also found that the second charge was also not proved as the passenger was not examined at all at the time of enquiry or before the labour court. it was found by the labour court that even the name and address of the passenger wasnot recorded and the labour court has correctly come to the conclusion that it was not open to the management to rely upon the oral statement of the checking inspector alone. as already seen the enquiry is defective in the sense that the checking inspector has neither obtained any statement from the passenger nor got the name and address of the passenger. there is no evidence as to the amount of cash available, at the time of inspection, with the conductor. the labour court, in my view was also quite justified in holding that the second charge levelled against the conductor was not proved. in my view, the findings of the labour court on the charges nos. 1 and 2 are based on materials and in view of the probabilities of the circumstances prevailing at that time the labour court has come to the correct conclusion in holding that the charges nos. 1 and 2 were not found proved against the conductor.9. in so far as the third charge is concerned, it relates to the case of non-issue of a ticket to a passenger who got into the bus at betfort and it was found that he was not in possession of valid ticket. there is no dispute that the passenger was not having ticket at the time of inspection and the explanation of the conductor was that because another passenger created trouble, he did not notice the person who got into the bus at betfort. though it was not proved that the conductor had received money for issuing ticket, it was proved in the enquiry beyond doubt that the conductor has not issued any ticket to the passenger and the enquiry officer as well as the labour court has come to the conclusion in holding that the conductor had not issued any ticket and in my view, the said finding is based on the materials on record and the probabilities of circumstances prevalent in the case. therefore, the labour court was quite justified in holding that the charge levelled against the conductor that he had not issued any ticket to a passenger was proved by the management. 10. in so far as the other charge is concerned, the labour court, in my view, was also correct in arriving at the finding that the management has not proved that the conductor had forwarded the missing tickets to the management. the labour court found on the basis of the closing slip, dated april 12, 1985 maintained by the management that there was no mention of the deficit in the collection. therefore, the labour court found that the charge that the conductor had not produced the missing tickets at the closing of the day and subsequently, he forwarded the same by way of anonymous letter was not proved by the management. in my view, the finding of the labour court is quite reasonable and it is based on evidence on record and i am not inclined to disturb the finding rendered by the labour court on this aspect also. 11. in view of my above conclusion that except one charge other charges were not found proved, the question that arises for consideration now is whether the labour court was justified in ordering reinstatement of the conductor without back wages. learned counsel for the management that in case one of the charges was found proved, the labour court has no jurisdiction to reduce the quantum of punishment imposed on the conductor. i am unable to accept the submission of the learned counsel for the management. the labour court in exercise of powers conferred under section 11-a to of the industrial disputes act, has wide powers to reduce the quantum of penalty imposed on the conductors. the labour court, after taking into consideration all the aspects of the matter came to the conclusion that the conductor was entitled to reinstatement, but without back wages. the management has also not proved that the conductor had suffered any prior punishment prior to the imposition of penalty in the instant case. the labour court noticed an important fact that the conductor was only negligent in not issuing ticket and it was not proved that after collecting money, he had not issued ticket. considering the circumstance that the conductor was not employed for four years and also other circumstances, the labour court has come to the conclusion that the conductor should be reinstated without back wages. i am of the view that it is purely the discretion of the labour court to award punishment under section 11-a of the industrial disputes act. since the discretion has been exercised by the labour court in areasonable manner, i am not inclined to interfere with the discretion exercised by the labour court in ordering reinstatement without back-wages. 12. learned counsel for the conductor/ workman also submitted that the denial of entire back-wages is not justifiable in law. i am also not inclined to accept the submission of the learned counsel for the conductor that there should not have been denial of the entire back-wages. in the fifth schedule to the industrial disputes act, there are several instances which are categorised and that can be regarded as unfair labour practice. clause 5 of the fifth schedule deals with the case of discharge or dismissal of a workman by way of victimisation. here, it is not a case of discharge or dismissal of the conductor by way of victimisation. learned counsel also referred to sub-clause (g) of clause (5) of the fifth schedule which reads as under: 'for misconduct of a minor or technical character without having any regard to the nature of the particular misconduct or the past record or service of the workman, thereby leading to a disproportionate punishment.'the question whether the proved misconduct can be regarded as a misconduct of a minor or technical character depends upon the facts and the circumstances of each case. the failure to issue ticket is certainly a misconduct and it cannot be stated that it is a misconduct of a minor character. the standing orders of the management particularly clause 14 deals with acts and omissions that would constitute misconduct. clause 14(ab) deals with the failure to issue tickets and such a failure is regarded under the standing orders as a misconduct. though the management has not established the failure on the part of the conductor under clause 14(b) or clause 14(d) the finding of the labour court is that there was a failure on the part of the conductor to issue tickets and therefore, it cannot be stated that the failure to issue tickets is a minor misconduct. learned counsel for the conductor submitted that the conductor had failed to issue ticket before the bus reached the first stage and it is not a case where the conductor in spite of the bus reaching its final destination, had not issued ticket to the passenger who boarded the bus at the starting point. he therefore submitted that the misconduct on the part of the conductor can only be regarded as a minor misconduct and therefore, the imposition of penalty of withholding the entire back-wages is not justifiable. i am quite unable to appreciate the submission of the learned counsel for the conductor. admittedly, it is the duty of the conductor to issue tickets to the passengers and whether the failure has resulted before the bus reached the first stage or the last stage is an immaterial consideration and it is the bounden duty of the conductor to issue tickets to all the passengers who got into the bus and before the bus reaches its next stage. therefore, once the misconduct is proved, the labour court has the jurisdiction to award an appropriate punishment. 13. learned counsel for the conductor also referred to section 124 of the motor vehicles act and submitted that it is duty of the passengers to get tickets. no doubt, the motor vehicles act imposes an obligation on the part of the passengers to get tickets, but equally, there is a duty cast upon the conductor to issue tickets to the travelling public and it is not open to him to hold his hands back and say that it is for the passenger to demand tickets. the plea raised by the learned counsel for the conductor is not a valid plea as under the relevant standing orders, it is the bounden duty of the conductor to issue tickets to the travelling public in the bus. 14. learned counsel for the conductor submitted that in a similar circumstance, the andhra pradesh high court in the case of depot manager, andhra pradesh state road transport corporation v. dharma reddy (supra), has 'upheld the punishment of deduction of two increments with cumulative effect. i am of the view, the decision of the andhra pradesh high court is not applicable to the facts of the case, as in that case, the labour court, on the facts of that case, has held that the proper punishment would be deduction of two increments with cumulative effect, but in the instant case, it is seen tbat the conductor was not required to issue the tickets to a full-loaded bus full passengers, and it is found that the number of persons found in the bus was below the maximum capacity, the conductor should have issued tickets to all the persons who got into the bus at the starting point or before the bus reached the next stage. therefore, the decision of the andhra pradesh high court on which heavy reliance was placed by the learned counsel is not applicable to the facts of the case. 15. the decision of the supreme court in the case of colour- chem, ltd. v. a.l. alaspurkar and ors. (supra), is also not applicable as the tribunal in that case found that the punishment imposed was disproportionate. the supreme court therefore held that the act of the management would constitute unfair labour practice which would constitute legal victimisation. on the other hand, here, it is a case where there is failure to discharge duty that is expected of a conductor and if such an attitude is condoned, it would result in a huge financial loss to the public sector undertaking which runs the bus for the benefit of the public. therefore, it cannot be said that it is a case of unfair labour practice on the part of the management by imposing punishment of dismissal from service. however, the punishment has been modified by the labour court into one of reinstatement without back-wages. i do not find any reason to interfere with the quantum of punishment imposed by the labour court, i.e., withholding of back-wages during the period when the proceedings were pending before the labour court. the labour court has correctly exercised its discretion and taking note of all the charges levelled against the conductor, ordered reinstatement but without back-wages, which, in my view has been done properly and with jurisdiction by the labour court under section 11-a of the industrial disputes act. i do not find any reason to interfere with the quantum of punishment either on the ground that it would constitute unfair labour practice or on the ground that the punishment is quite disproportionate to the charges levelled and proved against the conductor. 16. in the result, both the writ petitions, one filed by the management and another filed by the conductor, deserve to be dismissed and accordingly, they are dismissed. parties are directed to bear their own costs. consequently, w.m.p. no. 218 of 1991 is dismissed.