Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 3804/2007
% Judgment delivered on: 05.03.2010
Smt. Shanti Devi. ……........ Petitioner.
Through: Mr. Rajat Aneja with Mr.
Chand Zafar, Advocates.
versus
Delhi Transport Corporation. …...... Respondent.
Through: Mr. Sumeet Pushkarna with
Mr. Jitendra Kumar, Advocates.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
KAILASH GAMBHIR, J. Oral:
*
1. By this petition filed under Article 226/227 of the
Constitution of India, the petitioner seeks quashing of the Award
dated 19.1.2007 passed by the Labour Court whereby the imposition
of punishment of removal from service of the petitioner was upheld.
2. Brief facts relevant for deciding the present petition are
W.P.(C) No.3804/2007 Page 1 of 13
that the deceased workman was working as a Conductor since 1984
with the respondent corporation and on 6.12.2000 he was on duty in
Bus No.9294 on Delhi Bareilly route when it was checked by the
checking staff that 2 out of 29 passengers were found to be without
tickets. Thereafter, disciplinary proceedings were initiated against the
workman where the penalty of removal from service was imposed
upon him, to which an appeal was filed by the workman but was
rejected. Thereafter, an industrial dispute bearing ID No. 279/2006
was raised by the workman, in the midst of which on 2.3.2005 he
expired. Vide order dated 19.1.2007, the Labour Court upheld the
punishment of removal from service of the deceased workman.
Feeling aggrieved with the same, the widow of the deceased workman
has preferred the present petition.
3. Counsel for the petitioner submits that so far the past
record of the deceased workman is concerned, the same being
exemplary was pleaded before the enquiry officer but the same was
not taken into consideration by the Disciplinary Authority. Counsel
for the petitioner placed reliance on the office order dated 3.1.1966
issued then by the Delhi Transport Undertaking, to support his
argument that in the case of commission of first time offence involving
cheating, the concerned employee was required to be cautioned so
W.P.(C) No.3804/2007 Page 2 of 13
that he does not indulge in the commission of any such offence again
in the future. Placing further reliance on the same office order,
counsel submits that the past misconduct of the official is required to
be equally mentioned in the charge sheet if such past misconduct is
likely to result in imposition of any major punishment including the
punishment of removal or dismissal. Counsel thus submits that in
the charge sheet past misconduct of the petitioner was not brought
on record by the respondent, therefore, the same could not have been
considered by the labour court. Counsel further submits that, in all,
there were 29 passengers in the bus when the bus was checked by
the checking staff and tickets to all 29 passengers were issued by the
conductor. Counsel thus submits that there could not have been any
question of non-issuance of tickets to the two passengers and had this
been so, then, the number of passengers would have been 31 instead
of 29. Counsel further submits that before the enquiry officer no
statement of any of the passengers was recorded.
4. On the other hand, counsel for the respondent submits that
both the passengers who were not issued tickets by the conductor
gave their statement to the checking staff. Counsel further submits
that so far the office order dated 03.01.1996 is concerned, the same
W.P.(C) No.3804/2007 Page 3 of 13
would not be applicable in view of the standing orders issued by the
respondent DTC governing the conduct of its employees and as per its
clause 19 (F), (H), (M), it was clearly a case of serious misconduct on
the part of the deceased workman. Counsel further submits that even
if the past misconduct of the deceased workman is not taken into
consideration, the misconduct committed by the deceased conductor
in terms of the chargesheet issued against him was itself sufficient
enough for imposing the punishment of removal from service. In
support of his arguments, counsel for the respondent placed reliance
on the judgment of the Apex Court in Uttaranchal Transport
Corporation vs. Sanjay Kumar Nautiyal 2008 (12) SCC 131 .
Counsel also placed reliance on the judgment of the Apex Court in
Commissioner of Central Excise, Bolpur, Vs. Ratan Melting &
Wire Industries ( 2008) 13 SCC 1 to support his argument that
wherever the Supreme Court or the High Court declares the law on
any question arising before it for consideration then, it would not be
appropriate for the court to place reliance on the circulars or orders
issued by the Central Government or the State Government as such
circulars merely represent their understanding of the statutory
provisions and the same cannot have any binding effect.
5. Refuting the said submissions of counsel for the
W.P.(C) No.3804/2007 Page 4 of 13
respondent, Mr. Rajat Aneja, counsel for the petitioner submits that
the judgment of the Apex Court in the case of Uttranchal Transport
Corporation would not be applicable to the facts of the present case.
6. I have heard learned counsel for the parties at
considerable length and carefully gone through the records.
7. Mr. Aneja, counsel for the petitioner, laid much emphasis
on the Office Order NO. 1/Adm.1-3 (18)/65 dated 3.1.1966 which
requires the enquiry officer to take corrective action by personally
cautioning him to avoid reoccurrence in case cheating is committed
by the delinquent employee for the first time.
8. Counsel for the respondent on the other hand has
contended that the act of cheating committed by the petitioner
workman constitutes misconduct within the meaning of clause 19 (F)
(H) and (M) of the Standing Orders governing the conduct of the DTC
employees. Counsel also submitted that in view of the said standing
orders the office order dated 3.1.1966, on which reliance has been
placed by the petitioner stands superseded. Counsel for the
respondent also submitted that the Apex Court in a catena of
judgments has taken a view that the conductor if after collecting fare
does not issue the ticket then such an act on his part would be a case
of gross misconduct deserving no sympathy. The contention of the
W.P.(C) No.3804/2007 Page 5 of 13
counsel for the respodnent is that in various decisions, the Apex
Court has taken a serious view on such acts of cheating committed
by the conductors and no reliance can be placed on the overruled
Office Order NO. 1/Adm.1-3 (18)/65 dated 3.1.1966.
9. I find considerable force in the arguments of the counsel
for the respondent. The said order dated 3.1.1966 on which reliance
was placed by the counsel for the petitioner already stands
superseded in view of the standing orders framed by the respondent
DTC which govern the conduct of the employees of the respondent. I
also find considerable merit in the argument of the counsel for the
respondent that if the Apex Court and the High Court take a
particular view which has the effect of superseding or overruling of
such an office order or circular then no further reliance can be placed
on the same. It would be worthwhile to reproduce the relevant para of
the judgment in Commissioner of Central Excise (supra) here:
Circulars and instructions issued by the Board are no doubt
binding in law on the authorities under the respective statutes,
but when the Supreme Court or the High Court declares the law
on the question arising for consideration, it would not be
appropriate for the Court to direct that the circular should be
given effect to and not the view expressed in a decision of this
Court or the High Court. So far as the clarifications/circulars
issued by the Central Government and of the State Government
are concerned they represent merely their understanding of the
statutory provisions. They are not binding upon the court. It is
for the Court to declare what the particular provision of statute
says and it is not for the Executive. Looked at from another
angle, a circular which is contrary to the statutory provisions
has really no existence in law.
W.P.(C) No.3804/2007 Page 6 of 13
10. It is no more res integra that in a catena of judgments of
the Apex Court and various High Courts, a serious view has been
taken even where a conductor is found involved in a solitary act of
misconduct in the misappropriation of money either by not issuing
tickets to the commuters or by issuing a ticket of lesser amount and
therefore, no lenient view can be taken on the misconduct of the
delinquent employee and hence the contention of the counsel for the
petitioner in this regard stands repelled.
11. The other argument raised by the counsel for the
respondent that there were 29 passengers when the bus was checked
by the checking staff and tickets to all the 29 passengers were issued
by the conductor, is equally devoid of any force. It was proved
before the enquiry officer that there were in all 29 passengers in the
bus but the tickets were issued by the conductor to 27 passengers
while the rest two were not found in possession of the tickets and
when interrogated by the checking staff they clearly disclosed that
they had paid the ticket fare to the conductor. The enquiry officer,
based on the material placed on record by the checking staff and the
evidence adduced by both the parties, clearly found that there were
in all 29 passengers in the bus but the tickets were issued to 27
W.P.(C) No.3804/2007 Page 7 of 13
passengers and not to the rest two even after collecting fare of
Rs.12/- each for their travel from Moradabad to Rampur. The enquiry
officer did not believe the story of the delinquent workman stating
that the said two passengers might have misplaced their tickets. The
learned Tribunal has also accepted the said finding of fact as arrived
at by the enquiry officer and there is no reason to upset the said
findings of fact by this court while exercising jurisdiction under
Article 226 of the Constitution of India. It is a settled legal position
that the labour courts/tribunals are final courts of findings of facts
and unless there is any illegality or perversity in the approach of the
learned labour court to arrive at such findings, then only the same
can be re-appreciated by the High court while exercising jurisdiction
under Article 226 of the Constitution of India. It would be relevant to
refer to the judgment of the Apex Court in Management of
Madurantakam, Co-operative Sugar Mills Ltd. Vs.
S.Vishwanathan (2005)3 SCC 193 : where it was held that:-
12. Normally, the Labour Court or the Industrial Tribunal, as
the case may be, is the final court of facts in these type of
disputes, but if a finding of fact is perverse or if the same is not
based on legal evidence the High Court exercising a power
either under Article 226 or under Article 227 of the Constitution
of India can go into the question of fact decided by the Labour
Court or the Tribunal. But before going into such an exercise it
is necessary that the writ court must record reasons why it
intends reconsidering a finding of fact. In the absence of any
such defect in the order of the Labour Court the writ court will
not enter into the realm of factual disputes and finding given
W.P.(C) No.3804/2007 Page 8 of 13
thereon. A consideration of the impugned order of the learned
Single Judge shows that nowhere he has come to the
conclusion that the finding of the Labour Court is either
perverse or based on no evidence or based on evidence which
is not legally acceptable. Learned Single Judge proceeded as if
he was sitting in a court of appeal on facts and item after item
of evidence recorded in the domestic enquiry as well as before
the Labour Court was reconsidered and findings given by the
Labour Court were reversed. We find no justification for such an
approach by the learned Single Judge which only amounts to
substitution of his subjective satisfaction in the place of such
satisfaction of the Labour Court.
12. In the present case, no motives have been attributed by
the petitioner against the members of the checking staff who had
intercepted the bus and found the two passengers in the bus without
tickets and when questioned they clearly told that they had already
paid an amount of Rs.12/- each to the conductor and thereafter the
conductor admitted his guilt of issuing two unpunched tickets to the
said two passengers. Hence, there is no scope or reason to interfere
in the said findings of facts and therefore, the second contention
raised by the counsel for the petitioner is also devoid of any force
and substance.
13. It is no doubt true that the delinquent employee is the
husband of the petitioner and has already expired leaving his family
behind to suffer and starve, but the helping hand of justice cannot be
extended to those who not only betray the trust of their employer but
of their family as well. The Apex Court has clearly taken a view that
W.P.(C) No.3804/2007 Page 9 of 13
the conductors hold a position of trust and if they betray such trust
and indulge in acts of dishonesty, then they do not deserve any kind of
generosity or misplaced sympathy from the judicial forums. It would
be relevant to refer to the judgment in case of Karnataka SRTC vs.
B.S Hullikatti (2001)2 SCC 574 where it was held that :-
“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
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.”
The Apex Court also held that it is not the amount of money
misappropriated that becomes a primary factor for punishment but it
is rather the loss of trust which is a primary factor to be taken into
consideration. In this regard it would be worthwhile refer to the
following paras of the judgment in the case of U.P.SRTC vs. Vinod
Kumar (2008) 1 SCC 115 here:-
This Court in a number of judgments has held that the punishment of
“
removal/dismissal is the appropriate punishment for an employee
found guilty of misappropriation of funds; and the Courts should be
reluctant to reduce the punishment on misplaced sympathy for a
workman. That, there is nothing wrong in the employer losing
confidence or faith in such an employee and awarding punishment of
dismissal. That, in such cases, there is no place for generosity or
misplaced sympathy on the part of the judicial forums and interfering
W.P.(C) No.3804/2007 Page 10 of 13
with the quantum of punishment. Without burdening the judgment
with all the judgments of this Court on this point, we may only refer to
a recent judgment in Divisional Controller, N.E.K.R.T.C. v. H.
Amaresh : (2006)IIILLJ232SC , wherein this Court, after taking into
account the earlier decisions, held in para 18 as under:
In the instant case, the mis-appropriation of the funds
by the delinquent employee was only Rs.360.95. This
Court has considered the punishment that may be
awarded to the delinquent employees who mis-
appropriated the funds of the Corporation and the
factors to be considered. This Court in a catena of
judgments held that the loss of confidence is the
primary factor and not the amount of money mis-
appropriated and that the sympathy or generosity
cannot be a factor which is impermissible in law. When
an employee is found guilty of pilferage or of mis-
appropriating the Corporation's funds, there is nothing
wrong in the Corporation losing confidence or faith in
such an employee and awarding punishment of
dismissal. In such cases, there is no place for generosity
or misplaced sympathy on the part of the judicial forums
and interfering therefore with the quantum of
punishment. The judgment in Karnataka State Road
Transport Corporation v. B.S. Hullikatti :
(2001)ILLJ725SC was also relied on in this judgment
among others. Examination of the passengers of the
vehicle from whom the said sum was collected was also
not essential. In our view, possession of the said excess
sum of money on the part of the respondent, a fact
proved, is itself a mis-conduct and hence the Labour
Court and the learned Judges of the High Court
misdirected themselves in insisting on the evidence of
the passengers which is wholly not essential. This apart,
the respondent did not have any explanation for having
carried the said excess amount. This omission was
sufficient to hold him guilty. This act was so grossly
negligent that the respondent was not fit to be retained
as a conductor because such action or inaction of his
was bound to result in financial loss to the appellant
irrespective of the quantum.”
14. Applying the aforesaid principles of laws to the case at
hand, no sympathy can be shown to the petitioner who is bound to
suffer because of the corrupt deeds of her husband. The past clean
W.P.(C) No.3804/2007 Page 11 of 13
record of the deceased would also be of no help to the petitioner as
the solitary act of corruption will be sufficient enough to award
punishment of dismissal from service. No doubt, it may look harsh
and perhaps inequitable to uphold punishment of removal in cases
where misappropriation of a small amount of money is concerned,
more particularly when the big sharks are seen swimming
comfortably without any fear of law and law enforcing agencies.
Strangely, corruption is a paradoxical phenomenon as the highly
placed corrupt officials, rich and influential, save themselves from the
clutches of law by corrupting those whose primary job is to take
action against the corrupt people. Henceforth, it is in this way how
the evil of corruption is well flourishing and has now, so to say, carved
a comfortable niche for itself in the societal framework. It is not
surprising that rather than becoming a hard hitting reality to which
people should object and frown upon, looking with disdain upon those
indulging in such unethical practice, it has gained acceptance as an
indispensable virtue and is gradually becoming a way of life.
Therefore, no leniency or sympathy can be shown even to a person
who indulges himself in corruption even at a small level and by all
means, corruption has to be checked and nipped in the bud. It is not
the amount but the mind and intention of a corrupt person which has
W.P.(C) No.3804/2007 Page 12 of 13
to be checked and the conductor on duty can only indulge in
corruption at a small level and one cannot expect him to
misappropriate amount of thousands and lacs of rupees as his job is to
issue tickets and non issuance of the same can only result into
pocketing small amounts on daily basis. However, nevertheless, by
that process alone, his daily and monthly earnings sometimes may be
more than his official income. Therefore as a society this widespread
malpractice has to be defenestrated.
15. Hence, in the light of the above discussion, I do not find
any merit in the present petition and the same is hereby dismissed.
March 05, 2010 KAILASH GAMBHIR,J
Pkv/mg
W.P.(C) No.3804/2007 Page 13 of 13
+ W.P.(C) No. 3804/2007
% Judgment delivered on: 05.03.2010
Smt. Shanti Devi. ……........ Petitioner.
Through: Mr. Rajat Aneja with Mr.
Chand Zafar, Advocates.
versus
Delhi Transport Corporation. …...... Respondent.
Through: Mr. Sumeet Pushkarna with
Mr. Jitendra Kumar, Advocates.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
KAILASH GAMBHIR, J. Oral:
*
1. By this petition filed under Article 226/227 of the
Constitution of India, the petitioner seeks quashing of the Award
dated 19.1.2007 passed by the Labour Court whereby the imposition
of punishment of removal from service of the petitioner was upheld.
2. Brief facts relevant for deciding the present petition are
W.P.(C) No.3804/2007 Page 1 of 13
that the deceased workman was working as a Conductor since 1984
with the respondent corporation and on 6.12.2000 he was on duty in
Bus No.9294 on Delhi Bareilly route when it was checked by the
checking staff that 2 out of 29 passengers were found to be without
tickets. Thereafter, disciplinary proceedings were initiated against the
workman where the penalty of removal from service was imposed
upon him, to which an appeal was filed by the workman but was
rejected. Thereafter, an industrial dispute bearing ID No. 279/2006
was raised by the workman, in the midst of which on 2.3.2005 he
expired. Vide order dated 19.1.2007, the Labour Court upheld the
punishment of removal from service of the deceased workman.
Feeling aggrieved with the same, the widow of the deceased workman
has preferred the present petition.
3. Counsel for the petitioner submits that so far the past
record of the deceased workman is concerned, the same being
exemplary was pleaded before the enquiry officer but the same was
not taken into consideration by the Disciplinary Authority. Counsel
for the petitioner placed reliance on the office order dated 3.1.1966
issued then by the Delhi Transport Undertaking, to support his
argument that in the case of commission of first time offence involving
cheating, the concerned employee was required to be cautioned so
W.P.(C) No.3804/2007 Page 2 of 13
that he does not indulge in the commission of any such offence again
in the future. Placing further reliance on the same office order,
counsel submits that the past misconduct of the official is required to
be equally mentioned in the charge sheet if such past misconduct is
likely to result in imposition of any major punishment including the
punishment of removal or dismissal. Counsel thus submits that in
the charge sheet past misconduct of the petitioner was not brought
on record by the respondent, therefore, the same could not have been
considered by the labour court. Counsel further submits that, in all,
there were 29 passengers in the bus when the bus was checked by
the checking staff and tickets to all 29 passengers were issued by the
conductor. Counsel thus submits that there could not have been any
question of non-issuance of tickets to the two passengers and had this
been so, then, the number of passengers would have been 31 instead
of 29. Counsel further submits that before the enquiry officer no
statement of any of the passengers was recorded.
4. On the other hand, counsel for the respondent submits that
both the passengers who were not issued tickets by the conductor
gave their statement to the checking staff. Counsel further submits
that so far the office order dated 03.01.1996 is concerned, the same
W.P.(C) No.3804/2007 Page 3 of 13
would not be applicable in view of the standing orders issued by the
respondent DTC governing the conduct of its employees and as per its
clause 19 (F), (H), (M), it was clearly a case of serious misconduct on
the part of the deceased workman. Counsel further submits that even
if the past misconduct of the deceased workman is not taken into
consideration, the misconduct committed by the deceased conductor
in terms of the chargesheet issued against him was itself sufficient
enough for imposing the punishment of removal from service. In
support of his arguments, counsel for the respondent placed reliance
on the judgment of the Apex Court in Uttaranchal Transport
Corporation vs. Sanjay Kumar Nautiyal 2008 (12) SCC 131 .
Counsel also placed reliance on the judgment of the Apex Court in
Commissioner of Central Excise, Bolpur, Vs. Ratan Melting &
Wire Industries ( 2008) 13 SCC 1 to support his argument that
wherever the Supreme Court or the High Court declares the law on
any question arising before it for consideration then, it would not be
appropriate for the court to place reliance on the circulars or orders
issued by the Central Government or the State Government as such
circulars merely represent their understanding of the statutory
provisions and the same cannot have any binding effect.
5. Refuting the said submissions of counsel for the
W.P.(C) No.3804/2007 Page 4 of 13
respondent, Mr. Rajat Aneja, counsel for the petitioner submits that
the judgment of the Apex Court in the case of Uttranchal Transport
Corporation would not be applicable to the facts of the present case.
6. I have heard learned counsel for the parties at
considerable length and carefully gone through the records.
7. Mr. Aneja, counsel for the petitioner, laid much emphasis
on the Office Order NO. 1/Adm.1-3 (18)/65 dated 3.1.1966 which
requires the enquiry officer to take corrective action by personally
cautioning him to avoid reoccurrence in case cheating is committed
by the delinquent employee for the first time.
8. Counsel for the respondent on the other hand has
contended that the act of cheating committed by the petitioner
workman constitutes misconduct within the meaning of clause 19 (F)
(H) and (M) of the Standing Orders governing the conduct of the DTC
employees. Counsel also submitted that in view of the said standing
orders the office order dated 3.1.1966, on which reliance has been
placed by the petitioner stands superseded. Counsel for the
respondent also submitted that the Apex Court in a catena of
judgments has taken a view that the conductor if after collecting fare
does not issue the ticket then such an act on his part would be a case
of gross misconduct deserving no sympathy. The contention of the
W.P.(C) No.3804/2007 Page 5 of 13
counsel for the respodnent is that in various decisions, the Apex
Court has taken a serious view on such acts of cheating committed
by the conductors and no reliance can be placed on the overruled
Office Order NO. 1/Adm.1-3 (18)/65 dated 3.1.1966.
9. I find considerable force in the arguments of the counsel
for the respondent. The said order dated 3.1.1966 on which reliance
was placed by the counsel for the petitioner already stands
superseded in view of the standing orders framed by the respondent
DTC which govern the conduct of the employees of the respondent. I
also find considerable merit in the argument of the counsel for the
respondent that if the Apex Court and the High Court take a
particular view which has the effect of superseding or overruling of
such an office order or circular then no further reliance can be placed
on the same. It would be worthwhile to reproduce the relevant para of
the judgment in Commissioner of Central Excise (supra) here:
Circulars and instructions issued by the Board are no doubt
binding in law on the authorities under the respective statutes,
but when the Supreme Court or the High Court declares the law
on the question arising for consideration, it would not be
appropriate for the Court to direct that the circular should be
given effect to and not the view expressed in a decision of this
Court or the High Court. So far as the clarifications/circulars
issued by the Central Government and of the State Government
are concerned they represent merely their understanding of the
statutory provisions. They are not binding upon the court. It is
for the Court to declare what the particular provision of statute
says and it is not for the Executive. Looked at from another
angle, a circular which is contrary to the statutory provisions
has really no existence in law.
W.P.(C) No.3804/2007 Page 6 of 13
10. It is no more res integra that in a catena of judgments of
the Apex Court and various High Courts, a serious view has been
taken even where a conductor is found involved in a solitary act of
misconduct in the misappropriation of money either by not issuing
tickets to the commuters or by issuing a ticket of lesser amount and
therefore, no lenient view can be taken on the misconduct of the
delinquent employee and hence the contention of the counsel for the
petitioner in this regard stands repelled.
11. The other argument raised by the counsel for the
respondent that there were 29 passengers when the bus was checked
by the checking staff and tickets to all the 29 passengers were issued
by the conductor, is equally devoid of any force. It was proved
before the enquiry officer that there were in all 29 passengers in the
bus but the tickets were issued by the conductor to 27 passengers
while the rest two were not found in possession of the tickets and
when interrogated by the checking staff they clearly disclosed that
they had paid the ticket fare to the conductor. The enquiry officer,
based on the material placed on record by the checking staff and the
evidence adduced by both the parties, clearly found that there were
in all 29 passengers in the bus but the tickets were issued to 27
W.P.(C) No.3804/2007 Page 7 of 13
passengers and not to the rest two even after collecting fare of
Rs.12/- each for their travel from Moradabad to Rampur. The enquiry
officer did not believe the story of the delinquent workman stating
that the said two passengers might have misplaced their tickets. The
learned Tribunal has also accepted the said finding of fact as arrived
at by the enquiry officer and there is no reason to upset the said
findings of fact by this court while exercising jurisdiction under
Article 226 of the Constitution of India. It is a settled legal position
that the labour courts/tribunals are final courts of findings of facts
and unless there is any illegality or perversity in the approach of the
learned labour court to arrive at such findings, then only the same
can be re-appreciated by the High court while exercising jurisdiction
under Article 226 of the Constitution of India. It would be relevant to
refer to the judgment of the Apex Court in Management of
Madurantakam, Co-operative Sugar Mills Ltd. Vs.
S.Vishwanathan (2005)3 SCC 193 : where it was held that:-
12. Normally, the Labour Court or the Industrial Tribunal, as
the case may be, is the final court of facts in these type of
disputes, but if a finding of fact is perverse or if the same is not
based on legal evidence the High Court exercising a power
either under Article 226 or under Article 227 of the Constitution
of India can go into the question of fact decided by the Labour
Court or the Tribunal. But before going into such an exercise it
is necessary that the writ court must record reasons why it
intends reconsidering a finding of fact. In the absence of any
such defect in the order of the Labour Court the writ court will
not enter into the realm of factual disputes and finding given
W.P.(C) No.3804/2007 Page 8 of 13
thereon. A consideration of the impugned order of the learned
Single Judge shows that nowhere he has come to the
conclusion that the finding of the Labour Court is either
perverse or based on no evidence or based on evidence which
is not legally acceptable. Learned Single Judge proceeded as if
he was sitting in a court of appeal on facts and item after item
of evidence recorded in the domestic enquiry as well as before
the Labour Court was reconsidered and findings given by the
Labour Court were reversed. We find no justification for such an
approach by the learned Single Judge which only amounts to
substitution of his subjective satisfaction in the place of such
satisfaction of the Labour Court.
12. In the present case, no motives have been attributed by
the petitioner against the members of the checking staff who had
intercepted the bus and found the two passengers in the bus without
tickets and when questioned they clearly told that they had already
paid an amount of Rs.12/- each to the conductor and thereafter the
conductor admitted his guilt of issuing two unpunched tickets to the
said two passengers. Hence, there is no scope or reason to interfere
in the said findings of facts and therefore, the second contention
raised by the counsel for the petitioner is also devoid of any force
and substance.
13. It is no doubt true that the delinquent employee is the
husband of the petitioner and has already expired leaving his family
behind to suffer and starve, but the helping hand of justice cannot be
extended to those who not only betray the trust of their employer but
of their family as well. The Apex Court has clearly taken a view that
W.P.(C) No.3804/2007 Page 9 of 13
the conductors hold a position of trust and if they betray such trust
and indulge in acts of dishonesty, then they do not deserve any kind of
generosity or misplaced sympathy from the judicial forums. It would
be relevant to refer to the judgment in case of Karnataka SRTC vs.
B.S Hullikatti (2001)2 SCC 574 where it was held that :-
“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
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.”
The Apex Court also held that it is not the amount of money
misappropriated that becomes a primary factor for punishment but it
is rather the loss of trust which is a primary factor to be taken into
consideration. In this regard it would be worthwhile refer to the
following paras of the judgment in the case of U.P.SRTC vs. Vinod
Kumar (2008) 1 SCC 115 here:-
This Court in a number of judgments has held that the punishment of
“
removal/dismissal is the appropriate punishment for an employee
found guilty of misappropriation of funds; and the Courts should be
reluctant to reduce the punishment on misplaced sympathy for a
workman. That, there is nothing wrong in the employer losing
confidence or faith in such an employee and awarding punishment of
dismissal. That, in such cases, there is no place for generosity or
misplaced sympathy on the part of the judicial forums and interfering
W.P.(C) No.3804/2007 Page 10 of 13
with the quantum of punishment. Without burdening the judgment
with all the judgments of this Court on this point, we may only refer to
a recent judgment in Divisional Controller, N.E.K.R.T.C. v. H.
Amaresh : (2006)IIILLJ232SC , wherein this Court, after taking into
account the earlier decisions, held in para 18 as under:
In the instant case, the mis-appropriation of the funds
by the delinquent employee was only Rs.360.95. This
Court has considered the punishment that may be
awarded to the delinquent employees who mis-
appropriated the funds of the Corporation and the
factors to be considered. This Court in a catena of
judgments held that the loss of confidence is the
primary factor and not the amount of money mis-
appropriated and that the sympathy or generosity
cannot be a factor which is impermissible in law. When
an employee is found guilty of pilferage or of mis-
appropriating the Corporation's funds, there is nothing
wrong in the Corporation losing confidence or faith in
such an employee and awarding punishment of
dismissal. In such cases, there is no place for generosity
or misplaced sympathy on the part of the judicial forums
and interfering therefore with the quantum of
punishment. The judgment in Karnataka State Road
Transport Corporation v. B.S. Hullikatti :
(2001)ILLJ725SC was also relied on in this judgment
among others. Examination of the passengers of the
vehicle from whom the said sum was collected was also
not essential. In our view, possession of the said excess
sum of money on the part of the respondent, a fact
proved, is itself a mis-conduct and hence the Labour
Court and the learned Judges of the High Court
misdirected themselves in insisting on the evidence of
the passengers which is wholly not essential. This apart,
the respondent did not have any explanation for having
carried the said excess amount. This omission was
sufficient to hold him guilty. This act was so grossly
negligent that the respondent was not fit to be retained
as a conductor because such action or inaction of his
was bound to result in financial loss to the appellant
irrespective of the quantum.”
14. Applying the aforesaid principles of laws to the case at
hand, no sympathy can be shown to the petitioner who is bound to
suffer because of the corrupt deeds of her husband. The past clean
W.P.(C) No.3804/2007 Page 11 of 13
record of the deceased would also be of no help to the petitioner as
the solitary act of corruption will be sufficient enough to award
punishment of dismissal from service. No doubt, it may look harsh
and perhaps inequitable to uphold punishment of removal in cases
where misappropriation of a small amount of money is concerned,
more particularly when the big sharks are seen swimming
comfortably without any fear of law and law enforcing agencies.
Strangely, corruption is a paradoxical phenomenon as the highly
placed corrupt officials, rich and influential, save themselves from the
clutches of law by corrupting those whose primary job is to take
action against the corrupt people. Henceforth, it is in this way how
the evil of corruption is well flourishing and has now, so to say, carved
a comfortable niche for itself in the societal framework. It is not
surprising that rather than becoming a hard hitting reality to which
people should object and frown upon, looking with disdain upon those
indulging in such unethical practice, it has gained acceptance as an
indispensable virtue and is gradually becoming a way of life.
Therefore, no leniency or sympathy can be shown even to a person
who indulges himself in corruption even at a small level and by all
means, corruption has to be checked and nipped in the bud. It is not
the amount but the mind and intention of a corrupt person which has
W.P.(C) No.3804/2007 Page 12 of 13
to be checked and the conductor on duty can only indulge in
corruption at a small level and one cannot expect him to
misappropriate amount of thousands and lacs of rupees as his job is to
issue tickets and non issuance of the same can only result into
pocketing small amounts on daily basis. However, nevertheless, by
that process alone, his daily and monthly earnings sometimes may be
more than his official income. Therefore as a society this widespread
malpractice has to be defenestrated.
15. Hence, in the light of the above discussion, I do not find
any merit in the present petition and the same is hereby dismissed.
March 05, 2010 KAILASH GAMBHIR,J
Pkv/mg
W.P.(C) No.3804/2007 Page 13 of 13