Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2038 OF 2012
U.P. State Road Transport Corp. & Anr. ... Appellants
Versus
Gopal Shukla & Anr. ... Respondents
J U D G M E N T
Dipak Misra, J.
The present appeal compels us to wonder whether a
Legal forum should allow itself to imagine facts and conceive
of perverted situations to brush aside the material brought
on record and then for contrived reasons arrive at a
conclusion that there was possibly no embezzlement or
personal gain. The first respondent, a conductor in the
service of the U.P. State Transport Corporation (for short,
Signature Not Verified
Digitally signed by
Gulshan Kumar Arora
Date: 2015.09.24
14:33:29 IST
Reason:
“the Corporation”), despite the factum of carrying 25
passengers without ticket being proved, is relieved and
2
assuaged by substitution of punishment of dismissal with
stoppage of two annual increments with cumulative effect
taking aid of Section 6(2-A) of the U.P. Industrial Disputes
Act, 1947 (for brevity, ‘the Act’) by the Labour court in
invocation of the doctrine of reformation and principle of
mercy, and the High Court, in exercise of its supervisory
jurisdiction has given the stamp of approval to the award by
treating it as just and defensible fundamentally resting its
conclusion on the foundation that the controversy hinged
on the factual score. The reasoning, if we allow ourselves to
say, constrains us to ruminate whether the Labour Court
has been swayed away by the concept “ forgiveness is the
1
economy of the heart ” and dominantly affected by the
conception “ mercy among the virtues is like the moon among
2
the stars ”, totally remaining oblivious to the basic principle
that when the workman shatters the “institutional trust”
and his act has the potentiality to corrode the faith and
belief of the employer, does he deserve any leniency. It is
not the quantum per se but the breach of trust with
1
Hannah More
2
E.H. Chapin
3
reference to duty and obligation of the employee that must
be the edifice of consideration for imposition of punishment.
2. The necessitous factual depiction is the first
respondent was serving as a Conductor under the appellant,
Corporation. On 24.10.1992, while he was the conductor of
the bus No. UAN 8711, he allowed 25 passengers to travel
in the bus without ticket. A report being received from the
Assistant Traffic Inspector of the area, a disciplinary
proceeding was initiated against him and in the said
proceeding, he was found guilty and accordingly was visited
with the punishment of dismissal. On an industrial dispute
being raised, the competent authority of the State referred
the industrial dispute to the concerned Labour Court under
the provisions of the Act. The reference reads as follows:-
“Whether termination of services of Shri Gopal
Shukla, S/o late Shri Mathura Prasad Shukla,
Conductor, Fatehpur Depot vide order dated
3.12.93 by his employer is legal and valid? If not,
then to what benefits/compensation (Relief) the
concerned workman is entitled to receive and
with what other details?.”
3. The Labour Court on the basis of the materials
brought on record took note of the report of the Assistant
Traffic Inspector who had reported that 25 passengers
4
without ticket were found in the bus and the conductor had
recovered fare from them but had not issued the tickets to
them, perused the findings in the domestic enquiry and
came to hold that the allegation of personal gain and
corruption had really not been established. After so
holding, the Labour Court observed that it would be
appropriate to give a chance to the workman for
improvement in future and thereafter recorded the
conclusion as follows:-
“From the evidence available on record, it is
proved that the Petitioner workman has
committed illegality but fact of corruption is not
proved. On the above basis setting aside the
punishment of dismissal awarded by employers
against the workman, it is directed that from the
date of termination of the services of the
Petitioner workman till he is reinstated only half
of the wages would be payable and on
reinstatement his two annual increments will be
stopped without any cumulative effect. According
to aforesaid conditions, the petitioner workman is
reinstated with continuity of service and other
admissible benefits. The employers are directed
to reinstate the workman immediately after the
award.”
4. The Corporation assailed the said award in W.P.
No.32298 of 1997. The High Court, appreciating the
reasons ascribed in the award passed by the Labour Court,
came to hold that it had not been proved that the workman
5
concerned had taken fare from 25 passengers and not
issued tickets to them and, therefore, there was no
embezzlement. Being of this view, the High Court concurred
with the award relating to reinstatement but as far as the
grant of back wages is concerned, it reduced the same to 25
percentage.
5. We have heard Mr. Pradeep Mishra, learned counsel for
the appellant and Mr. Vibhu Tiwari, learned counsel for the
State. None has appeared for the respondent no.1.
6. On a perusal of the award passed by the Labour Court
as well as the order passed by the High Court, we find that a
categorical conclusion has been arrived at on the basis of
the evidence on record that the respondent who was
engaged as a Conductor had allowed 25 passengers to travel
in the bus without ticket. It is obvious that the primary and
core duty of a conductor is to collect fare and render true
and correct account. This is the mainstay and centerpiece of
his work and faith reposed on him by the employer. The
Labour Court as well as the High Court has been guided by
the perception that there was no recovery of money and,
therefore, there was no corruption or embezzlement. But it
6
fails to notice the nature of duties and obligation of a
conductor. Even the finding on no corruption or
embezzlement is ambiguous and contradictory.
7. At the outset, we may reproduce the charges framed
against the first respondent. They read as follows :
“(1) On 24.10.1992 carrying 25 without ticket
passengers in Bus No. UAN 8711 for personal
gains.
(2) To cause financial loss to the department by
involving in planned corruption, at the time of
inspection by not returning the way bill after
taking the same from the hands of inspectors and
causing hindrance in inspection by instigating
the passengers against them for personal gains.
(3) As per the Rule 62 of Departmental Service
Regulation committing misconduct as
Misconduct No.1, 3, 5, 10, 16, 21 and 22.
(4) At the time of inspection for the sake of
concealing the grave corruption for personal
gains, lodged false report to the police regarding
misplacing of waybill used by you.”
8. The Labour Court as well as the High Court has found
that 25 persons were carried without ticket. However, an
opinion has been expressed that there was no personal
gain. On a scrutiny of the award and the order passed by
the High Court, it can be stated with certitude that the
Labour Curt as well as the High Court has accepted that the
7
first three charges have been proved. We shall advert to the
fourth charge and the soundness of the reasons ascribed
thereof by the Labour Court at a later stage. However, it
does not require Soloman’s wisdom to understand that by
virtue of carrying 25 passengers without ticket, loss has
indubitably been caused to the Corporation. The Labour
Court, as is evident, has exercised its power under Section
6(2-A) of the Act. Section 6(2-A) reads as under :
“(2-A) An award in an industrial dispute relating
to the discharge or dismissal of a workman may
direct the setting aside of the discharge or
dismissal and re-instatement of the workman on
such terms and conditions, if any, as the
authority making the award may think fit, or
granting such other relief to the workman,
including the substitution of any lesser
punishment for discharge or dismissal, as the
circumstances of the case may require.”
9. When such a power is conferred on the Labour Court,
it is obligatory on it to record satisfaction that the order of
dismissal was not justified and thereafter proceeded to
award a lesser punishment in lieu of discharge or dismissal.
The thrust of the matter is whether the present case was
one where a lenient attitude was required to be shown by
the Labour Court and the High Court. In this context, Mr.
Mishra has commended us to a two Judge Bench decision
8
in U.P. State Road Transport Corporation vs. Suresh
3
Chand Sharma . In the said case, a contention was raised
that an embezzlement of petty sum did not warrant the
punishment of dismissal. Negativing the said submission,
the Court opined:-
“21. We do not find any force in the submissions
made by Dr. J.N. Dubey, learned Senior counsel
for the employee that for embezzlement of such a
petty amount, punishment of dismissal could not
be justified for the reason that it is not the
amount embezzled by a delinquent employee but
the mens rea to misappropriate the public
money.
22. In Municipal Committee, Bahadurgarh Vs.
4
Krishnan Bihari & Ors. , this Court held as
under:-
"In a case of such nature - indeed, in cases
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
5
Ruston & Hornsby (I) Ltd. v.. T.B. Kadam , U.P.
State Road Transport Corporation v.. Basudeo
6
Chaudhary & Anr. , Janatha Bazar (South Kanara
Central Cooperative Wholesale Stores Ltd.) & Ors.
7
v.. Secretary, Sahakari Noukarara Sangha & Ors. ,
Karnataka State Road Transport Corporation v..
3
(2010) 6 SCC 555
4
AIR 1996 SC 1249
5
AIR 1975 SC 2025
6
(1997) 11 SCC 370
7
(2000) 7 SCC 517
Reportable
8
B.S. Hullikatti , and Regional Manager, R.S.R.T.C.
9
v. Ghanshyam Sharma .
10
23. In NEKRTC v. H. Amaresh , and UPSRTC v.
11
Vinod Kumar , this Court held that the
punishment should always be proportionate to
the gravity of the misconduct. However, in a case
of corruption/misappropriation, the only
punishment is dismissal.”
10. In the instant case, as accepted by the Labour Court,
the first respondent was carrying 25 passengers without
tickets which has caused financial loss to the Corporation.
That apart, the workman had also violated the postulates
under the Rule and committed misconduct. Two aspects
are absolutely clear. It is established that 25 passengers
were allowed to enter into the bus. There is no material on
record that they had entered inside the bus by application
of any kind of force. On the contrary, the finding that has
been recorded clearly establishes that they were travelling
in the bus without ticket. The Labour Court, while
recording such a finding, has been guided by the
observations of this Court that justice must be tampered
with mercy and the erring workman should be given an
opportunity to reform himself and to prove to be a loyal and
8
AIR 2001 SC 930
9
(2002) 10 SCC 330
10
AIR 2006 SC 2730
11
(2008) 1 SCC 115
Reportable
disciplined employee. The said observations have been
reproduced from Scooter India Ltd. Lucknow v. Labour
12
Court, Lucknow and Anr . The said decision was
rendered in the context of a workman having an ideology
and behaving in a different manner which bordered on
rudeness with the management. There was no allegation of
the present nature and, therefore, we really fail to fathom
how the said observations could have been applied to a case
of this magnitude when approximately half of the
passengers travelled without ticket and the first respondent
was performing the duties of a Conductor. The loss caused
to the Corporation cannot be marginalized. In such a
situation the question of reformation and to make him
disciplined or giving him another chance, in our considered
opinion, does not arise. The Conductor holds the post of
trust under the Corporation. It is extremely difficult on the
part of the checking authorities to check in a constant
manner. An employee holding the post that requires trust
and confidence is expected to behave with discipline, loyalty
and also maintain the fiscal sanctity. He should not allow
anything to creep in which would make him a person of
12
FLR 1988 (57) = (1989) Supp. 1 31
Reportable
questionable integrity. When the first three charges were
treated to have been established by adducing cogent
evidence, neither the Labour Court nor the High Court
should have been guided by the sense of mercy and direct
reinstatement. The motive of the respondent from the act is
inherent. When such kind of indiscipline causes financial
loss to the Corporation, adequate punishment has to be
imposed and in our view such misconduct does not stand
on a lesser footing than embezzlement or corruption and
more importantly results in loss of faith and breaches the
trust. We must not forget the fundamental duty and work.
A number of persons had been allowed to travel in the bus,
without paying fare as if the fare was paid, the same was
pocketed. That apart, the violation of the Rules and the
manner in which he has dealt with the Assistant Traffic
Inspector should have been seriously viewed.
11. Presently, we shall deal with the issue whether the
Labour Court is justified in its reasoning that the charge of
personal gain has not been proved. The reasoning ascribed
by the Labour Court, we must say, is absolutely perverse. It
reads as follows:-
12
“In chargesheet Exht. W/1 it has been stated that
the petitioner was carrying 25 passengers for his
personal gains and being involved in planned
corruption he has caused financial loss to the
corporation. On behalf of employer no such
reliable evidence has been given from which it
could be proved that the petitioner had recovered
money from alleged without ticket passengers. It
is not the contention of the Inspector that they
had checked the bag available with the workman
and cash more than the cash for which ticket
have been issued, was available with the
petitioner. Inspector Mohd. Khalil Khan in his
statement has stated “after recording comments
on the waybill, the same was given to the
conductor for his signatures as a proof of incident
but the conductor has folded and kept it with him
and has not returned it to me. Besides this he
had instigated the passengers against the
conductor then they will make miserable for me
to live in the area”. In normal course, if the
petitioner workman would have taken fare of
tickets from passenger and would not have
issued tickets to them, then the passengers
would have complained to the Inspectors that
petitioner workman inspite of taking money has
not issued ticket to them. It does not appear
believable that without tickets passengers have
taken the side of conductor and threatened the
Inspector that if they will make any complaint
against the conductor, they will make it
miserable for them to live in the area. It has
come in evidence that the inspectors have not
recovered 10 times of the fare from without ticket
passengers or Rs.500/- as compounding fee. I
understand that by not recovering compounding
fee from the without ticket passengers, it will
motivate the passengers to travel without ticket.
If the passengers apprehend that their checking
can be done and 10 times fare can be recovered
from them, then certainly they will take ticket
and if the conductor does not issue ticket despite
13
recovery of fare, then they will compel the
conductor to issue tickets otherwise they have to
pay a very large amount in case of checking.
Thus the inspectors are also not less guilty for
the irregularity of carrying without ticket
passengers. If this fact of the inspectors is
correct that 25 without ticket passengers have
been found in petitioner’s bus even then there is
no proof of this fact that the petitioner workman
had recovered the fare from them and wanted to
misappropriate the same. In the circumstances
of the case, I understand that the punishment of
dismissal awarded to the petitioner is somewhat
severe.”
12. On a mere glance at the said reasons, it is quite vivid
the reasons are really imaginary and reveal some kind of
unacceptable theoretical perceptions by the Labour Court.
The conduct of the conductor would clearly show that the
factum of personal gain was established. The reason given
that the passengers would have complained and they would
not have taken the side of the conductor and would have
made a complaint against the conductor are not based on
any evidence, but are eloquently expressed by innate
creativity of the Labour Court. As the factual matrix
reveals, there could not have been any recovery. The
non-recovery of the amount does not mean that there was
no personal gain to the conductor or concealing of
corruption for personal gains by lodging a report with the
14
police regarding misplacing of waybill by the employee.
Needless to emphasise the said charge has been proven in
the domestic enquiry. The Labour Court has not really
dislodged that finding. It has really proceeded in a
mercurial manner and adverted to the issue of
misappropriation. It has remained wholly oblivious to the
facts that conductor had allowed 25 passengers to travel
without ticket; that by virtue of the said act, the
Corporation had sustained loss; that he had mischievously
lodged an FIR at the police station regarding misplacing of
waybill by him; that his conduct manifestly shows his
involvement for personal gain, and that the eventual act
was to conceal the corruption which was rooted in his
personal gain. The finding recorded by the Labour Court on
this score is absolutely perverse and the High Court has
repeated the reasons and concurred with the conclusion.
Thus, the irresistible conclusion has to be that the charge
pertaining to personal gain has been proved. We may
clearly state that the contrary conclusion would tantamount
to ignoring the obvious and, in a way, treating the
pinchbeck to be real. Though there is concurrent finding of
15
fact, but the approach being manifestly perverse, the same
can be interfered with in exercise of power under Article 136
of the Constitution. It has been so held in Alamelu v.
13 14
State , Heinz India (P) Ltd. v. State of U.P. and
15
Vishwanath Agrawal v. Sarla Vishwanath Agrawal .
13. In view of the aforesaid analysis, the irresistible
conclusion is that both the Labour Court and the High
Court have fallen in error by imposing a lesser punishment
on the respondent-workman whereas the only punishment,
on establishment of the charges which have been accepted
by the labour court, should have been dismissal and not a
lesser one.
14. In the facts and circumstances of the case, we are
impelled to state that the exercise of power under Section
6(2-A) of the Act by the Labour Court is absolutely arbitrary
and it can be said without any shadow of doubt that it has
not been exercised in a judicial manner. Additionally,
when we have further held that the charge pertaining to
personal gain has been established, the said view gets more
support. It is so, as has been observed in Shobha Suresh
13
(2011) 2 SCC 385
14
(2012) 5 SCC 443
15
(2012) 7 SCC 288
16
16
Jumani v. Appellate Tribunal that there is a cancerous
growth of corruption which has affected the moral
standards of people and all forms of governmental
administration.
15. In Niranjan Hemchandra Sashittal v. State of
17
Maharashtra , it has been observed that:-
“... corruption mothers disorder, destroys societal
will to progress, accelerates undeserved
ambitions, kills the conscience, jettisons the glory
of the institutions, paralyses the economic health
of a country, corrodes the sense of civility and
mars the marrows of governance. It is worth
noting that immoral acquisition of wealth
destroys the energy of the people believing in
honesty, and history records with agony how they
have suffered. The only redeeming fact is that
collective sensibility respects such suffering as it
is in consonance with the constitutional
morality.”
In the said case, it has also been observed that the
degree of corruption is immaterial. In the case at hand, as
we perceive, the delinquent employee has harboured the
notion that when the cancerous growth has affected the
system, he can further allow it to grow by covering it like an
octopus, with its tentacles disallowing any kind of surgical
operation or treatment so that the lesion continues. The
16
(2001) 5 SCC 755
17
(2013) 4 SCC 642
17
whole act is reprehensible and such a situation does not
even remotely commend any lenience.
16. Consequently, the appeal is allowed and the award
passed by the Labour Court as well as the order passed by
the High Court is set aside and the order of dismissal
imposed by the Corporation is restored. There shall be no
order as to costs.
.........................J.
(Dipak Misra)
........................J.
(Prafulla C. Pant)
New Delhi;
September 1, 2015.
ITEM NO.106 COURT NO.5 SECTION XV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 2038/2012
U.P.STATE ROAD TRANPSPORT CORP.& ANR. Appellant(s)
VERSUS
GOPAL SHUKLA & ANR. Respondent(s)
Date : 01/09/2015 This appeal was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE DIPAK MISRA
HON'BLE MR. JUSTICE PRAFULLA C. PANT
For Appellant(s) Mr. Pradeep Misra,Adv.
For Respondent(s) Mr. Vibhu Tiwari, Adv.
Mr. Ravi Prakash Mehrotra,Adv.
Mr. Shrish Kumar Misra,Adv.
Mr. Yash Pal Dhingra,Adv.
UPON hearing the counsel the Court made the following
O R D E R
The appeal is allowed in terms of the signed reportable
judgment.
(Gulshan Kumar Arora) (H.S. Parasher)
Court Master Court Master
(Signed reportable judgment is placed on the file)