Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. __3485______OF 2009
[Arising out of Special Leave Petition (Civil) No. 6195 of 2006]
DIVISIONAL MANAGER,
RAJASTHAN S.R.T.C. …APPELLANT
VERSUS
KAMRUDDIN … RESPONDENT
J U D G M E N T
S.B. Sinha, J.
2
1. Leave granted.
2. Extent of interference with the quantum of punishment imposed by an
employer on a delinquent employee by the Labour Court in exercise of its
power under Section 11A of the Industrial Disputes Act, 1947 (for short,
“the Act”) is in question in this appeal which arises out of a judgment and
order dated 16.11.2005 passed by a Division Bench of the Rajasthan High
Court, Jaipur Bench, Jaipur.
3. The said question arises in the following factual matrix:
Respondent herein was appointed as a conductor by the appellant –
corporation on or about 6.8.1982 as a daily wager for a specific period on
the expiry whereof his services came to an end.
He was, however, appointed as a conductor on probation for a period
of two years by an offer dated 26.3.1983, inter alia, on the terms and
conditions laid down therein; the relevant claim whereof reads as under:
“4. That on being caught by the inspection team
and on finding corruption their services could be
terminated at any time and the security amount
would be seized.”
3
Within the aforementioned period of probation, inspections were
carried out in the buses in which he had been discharging his duties as a
conductor and on not less than five occasions, i.e., on 4.4.1983, 11.5.1983,
23.9.1983, 21.11.1983 and 8.2.1984, he was found to have not issued tickets
to the passengers. Indisputably, on or about 19.4.1993, in relation to the
incident which took place on 4.4.1983, a warning was administered to him,
stating:
“You were on duty on date 4.4.83 in the
vehicle no. 6070 at the Vayavar Udaipur road.
After the inspection of the vehicle it was found
that you were carrying 2 passengers without
tickets. The Checking staff collected the fare from
the same and issued the tickets.
Therefore, you are hereby warned to be
careful in the near future otherwise your probation
period would be terminated.”
After he was found guilty of having not issued tickets to the two
passengers and carrying 180 kilograms luggage without a ticket, a
disciplinary proceeding was initiated against him. He was placed under
suspension.
4
The fairness of the disciplinary enquiry is not in question. By reason
of an order dated 15.6.1984, the Divisional Manager of the Corporation
being the Appointing Authority terminated his services, stating:
“On the basis of the complaints received against
Shri Kamruddin S/o Shri Sikandar Khan,
Conductor, Vayavar Depot he was suspended vide
the Office Order No. 395 dated 13.2.84 and was
issued the Charge sheet no. 404 dated 24.2.84. In
respect of the inquiry of the imposed charges the
Divisional Depot Manager, Ajmer was appointed
the Inquiry Officer vide the Office order no. 581
dated 3.3.84.
After completing the inquiry by the Inquiry
Officer the enquiry report was produced. I have
carefully gone through the same along with the
available record. The Inquiry Officer has found
the conductor guilty of the imposed charges. I
fully agree with the view of the Inquiry Officer.
Therefore, I, Divisional Manager, RSRTC,
Ajmer, impose the following punishment under
Section 36(5) and (7) of the Standing Orders on
Shri Kamruddin s/o Shri Sikandar Khan,
Conductor, Vayavar Depot after finding him guilty
in the aforesaid case.
1. I seize the remaining salary of the suspension period in
the interest of the Corporation.
1. I terminate his probation period after removing him
from the services of the Corporation with immediate effect.”
4. Respondent raised an industrial dispute. By reason of an Award
dated 16.7.1996, the Labour Court despite finding that the enquiry was
5
fairly conducted opined that the punishment inflicted on the respondent was
disproportionate to the gravity of the misconduct committed by him, stating:
“Therefore, it would not be just and proper to
impose the severe punishment of the termination
from the service but keeping in view the proved
misconduct on the part of the applicant this court
could amend the penalty keeping in view the
provisions of Section 11(A) of the Industrial
Disputes Act and as per the facts and
circumstances of the case it would be just and
proper that the punishment of the stoppage of two
grade increments with cumulative effect be
awarded and the same would be made effective
from the date of inspection i.e. 8.2.84 and further
that the applicant would not be entitled of the back
wages. That he would be reinstated in the service
in continuation of his service as if he has not been
terminated from the service of the corporation.
Accordingly, the Award is passed.”
In support of its aforementioned finding, the Tribunal relied upon a
decision of the Rajasthan High Court in RSRTC vs. Shri Ram Yadav [1995
(3) WLC 16] as also the decision of this Court in Rajasthan State Road
Transport Corporation vs. Bhagyo Mal & Ors. [1994 Supp (1) SCC 573].
5. A writ petition preferred thereagainst by the Corporation has been
dismissed both by a learned single judge. A Division Bench of the High
Court by reason of the impugned judgment dismissed an intra-court appeal
preferred by the appellant.
6
6. Mr. Sushil Kumar Jain, learned counsel appearing on behalf of the
appellant would contend that in a case of this nature where the respondent
has been found guilty of commission of a misconduct of misappropriation,
no interference with the quantum of punishment was warranted.
7. Mr. B.K. Satija, learned counsel appearing on behalf of the
respondent, on the other hand, would contend that this Court should not
interfere with the impugned judgment as imposition of the punishment of
dismissal from service having regard to the guidelines issued by the
Corporation itself was wholly disproportionate to the charges of misconduct
framed against the respondent. Learned counsel in this connection would
draw our attention to the statement made in the counter affidavit, which
reads as under:
“It is respectfully submitted that the Corporation
in number of standing orders has taken decision in
regard to awarding financial punishment, where
the Conductor is carrying the passengers without
ticket. Operative Portion of Section 36 of
standing order is reproduced hereunder for ready
reference:
’36. One or more of the following
penalties may, for good and sufficient reasons,
be imposed on a worker by a competent
authority; penalties from (v) to (vii) shall be
appealable-
7
(i) Censure:- Three censures in a
period of one year will involve
withholding of one increment.
(ii) Withholding of increments or promotion.
(ii) Recovery from pay/wages of the whole or part of
any pecuniary loss caused to the employer by negligence or
breach of any law.
(ii) Fine upto 2% of worker’s wages.
(ii) Forfeiture of wages during the period or of
suspension.
(ii) Reduction to a lower post or grade.
(ii) Termination of service, which shall not be a
disqualification for future employment.
(ii) Dismissal from service which shall be
disqualification for future employment.’
It is respectfully submitted that the petitioner
Corporation has issued number of semi
Government order, where the decision to impose
financial punishment was decided by the
Corporation and the cases pertaining to traveling
without ticket were settled imposing financial
punishment upon the employee/workman.”
8. Our attention was also drawn to a corrigendum issued on 24.7.1982,
the relevant portion whereof reads as under:
“ Recently circular No. 625 dt.05.06.1982
was issued by the General Manager for charge of
8
full route fare from the without ticket passengers,
because correct information regarding journey
undertaken was not being provided by the
passengers as well as by the conductors to conceal
fraudulent activities.
During the last meeting of the Divisional
Managers, clarification was sought with regard to
certain points to enable the officers and
inspectorial staff to implement the directions
imparted in the circular under reference. Further,
instructions in this regard are imparted as under:-
1. The cases where the conductor has realized
fare, but has not issued tickets, it shall be
presumed that the passenger had been undertaking
journey from the originating point of the bus to the
terminal point and the conductor had realized fare
for the journey being undertaken by the passenger.
Hence, full fare of the route along with equal
penalty or Rs.5/- whichever is more, shall be
chargeable from the conductor.”
Our attention was also drawn to the Office Order dated 12.01.2006,
the relevant portion whereof reads as under:-
“ Nigam has decided to prefer a Special Leave
Petition before the Hon’ble Supreme Court against
order dt. 16.11.2005 passed by Hon’ble High
Court of Rajasthan Bench at Jaipur and it has also
been decided that Sh. Kamruddin S/o Sh. Sikandar
Khan, Ex-Conductor, Vyavar Depot be reinstated
subject to the outcome of Special Leave Petition.
Therefore, Kamruddin S/o Sh. Sikandar
Khan, Ex-Conductor, Vyavar Depot in pursuance
of order dt. 04.02.2003 passed by learned Single
Judge of the Hon’ble High Court Bench at Jaipur
9
and order dt. 16.11.2005 passed by Division
Bench of the High Court of Rajasthan at Jaipur
and compliance of Award dt. 16.07.1996 passed
by Labour and Industrial Tribunal Ajmer in LCR
No. 24/96 (263/90) is hereby reinstated and posted
at Vyavar Depot subject to the decision of Special
Leave Petition.”
Learned counsel furthermore urged that as in implementation of the
said Award passed by the Labour Court as affirmed by the High Court,
respondent had been reinstated in service by an office order dated 12.1.2006
and his services having been terminated again by an order dated 2.6.2006 in
view of the order of stay granted this Court, this Court may restore the order
passed by the Labour Court.
9. It is not a case where the misconduct against the respondent had not
been proved. It is also not a case where the domestic enquiry was found to
have been conducted in an unfair manner or contrary to the principles of
natural justice. The services of the respondent had been terminated while
the period of probation was not over. As a conductor, his performance
during the period of probation was found to be unsatisfactory. It is not in
dispute that a disciplinary proceeding was initiated against him while he
was found to have committed similar misconduct for the fifth time. It is
10
also beyond any doubt or dispute that he had also been served with a letter
of warning.
10. The power of Labour Court and/or Industrial Tribunal in terms of
Section 11A of the Industrial Disputes Act, 1947 to interfere with the
quantum of punishment although cannot be denied, but it is also a well
settled principle of law that the said power should be exercised judiciously.
The Labour Court relied upon the decision of this Court in Bhagyo
Mal (supra) wherein the High Court allowed back wages to the workman
concerned. This Court in the facts and circumstances of the case found the
order of the High Court to be self-contradictory, stating:
“When the High Court had found that the
respondent – employee deserved punishment on
account of his misconduct, the High Court could
not have rewarded the employee by granting him
the back wages particularly when the Tribunal had
converted the order of dismissal into that of the
stoppage of two increments with cumulative
effect. We, therefore, allow the appeal and set
aside that part of the order of the High Court
whereby the respondent – employee has been
given the benefit of back wages. The rest of the
order is maintained.”
We fail to understand as to how the said decision advanced the case
of the respondent.
11
11. The question with regard to imposition of appropriate punishment
upon a conductor of a bus belonging to a corporation constituted under the
Road Transport Corporation Act, 1950 came up for consideration before
this Court in Karnataka State Road Transport Corporation vs. B.S. Hullikatti
[(2001) 2 SCC 574], wherein it was held:
“5. On the facts as found by the Labour Court
and the High Court, it is evident that there was a
short-charging of the fare by the respondent from
as many as 35 passengers. We are informed that
the respondent had been in service as a Conductor
for nearly 22 years. It is difficult to believe that he
did not know what was the correct fare which was
to be charged. Furthermore, the appellant had
during the disciplinary proceedings taken into
account the fact that the respondent had been
found guilty for as many as 36 times on different
dates. Be that as it may, the principle of res ipsa
loquitur, namely, the facts speak for themselves, is
clearly applicable in the instant case. Charging 50
paise per ticket less from as many as 35 passengers
could only be to get financial benefit by the
Conductor. This act was either dishonest or was so
grossly negligent that the respondent was not fit to
be retained as a Conductor because such action or
inaction of his is bound to result in financial loss
to the appellant-Corporation.
6. It is misplaced sympathy by the Labour
Courts in such cases when on checking it is found
that the Bus Conductors have either not issued
tickets to a large number of passengers, though
they should have, or have issued tickets of a lower
12
denomination knowing fully well the correct fare
to be charged. It is the responsibility of the Bus
Conductors to collect the correct fare from the
passengers and deposit the same with the
Company. They act in a fiduciary capacity and it
would be a case of gross misconduct if knowingly
they do not collect any fare or the correct amount
of fare.”
A three judge Bench of this Court in Regional Manager, RSRTC vs.
Ghanshyam Sharma [(2002) 10 SCC 330], reiterated the said principle,
stating:
“4. This Court in Karnataka SRTC v. B.S.
Hullikatti has held that in such cases where the
bus conductors carry passengers without ticket or
issue tickets at a less rate than the proper rate, the
said acts would inter alia amount to either being a
case of dishonesty or of gross negligence and such
conductors were not fit to be retained in service
because such inaction or action on the part of the
conductors results in financial loss to the Road
Transport Corporation. This Court was firmly of
the opinion that in cases like the present, orders of
dismissal should not be set aside.
5. Furthermore, we agree with the observations
of the Single Judge in the present case that the
Labour Court was not justified in interfering with
the punishment of dismissal. Though under
Section 11-A the Labour Court has jurisdiction
and powers to interfere with the quantum of
punishment, however the discretion has to be used
judiciously. When the main duty or function of
the conductor is to issue tickets and collect fare
and then deposit the same with the Road Transport
13
Corporation and when a conductor fails to do so,
then it will be misplaced sympathy to order his
reinstatement instead of dismissal.”
Recently in Uttaranchal Transport Corporation vs. Sanjay Kumar
Nautiyal [2008 (12) SCC 131], Hullikatti (supra) has been followed.
12. Standing Order No. 36 whereto our attention has been drawn merely
provides for different nature of penalties which can be imposed on a worker
stating that penalties specified at Serial Nos.5 to 7 therein would be
appealable. A corrigendum thereto was issued on 24.7.1982 by way of
clarification with regard to the full route fare as contained in Circular No.
625 dated 5.6.1982. The said corrigendum has nothing to do with the nature
or quantum of penalty. The same does not provide for a substitution of the
penalty provided for in the Certified Standing Order. In any event, Certified
Standing Order would prevail over such circulars.
13. It may be true that in execution of the Award passed by the Labour
Court, for a short time respondent was put back in service. This Court,
however, as indicated hereinbefore, stayed the operation of the judgment by
reason whereof Award as also the judgment of the High Court became non-
operational. We are, therefore, of the opinion that by itself that may not be
14
a ground to refrain ourselves from following the authoritative binding
precedents.
14. For the aforementioned reasons, the impugned judgment cannot be
sustained. It is set aside accordingly. The appeal is allowed. However, in
the facts and circumstances of the case, there shall be no order as to costs.
……………………………….J.
[S.B. Sinha]
..…………………………..…J.
[Dr. Mukundakam Sharma]
New Delhi;
May 12, 2009