Full Judgment Text
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CASE NO.:
Appeal (civil) 6703 of 2005
PETITIONER:
U.P.S.R.T.C.
RESPONDENT:
Mahendra Nath Tiwari & Anr.
DATE OF JUDGMENT: 11/11/2005
BENCH:
RUMA PAL & P.K. BALASUBRAMANYAN
JUDGMENT:
J U D G M E N T
[arising out of SPECIAL LEAVE PETITION (CIVIL) NO. 9495 OF 2004]
P.K. BALASUBRAMANYAN, J.
Leave granted.
1. The respondent herein was appointed conductor of a bus
by the Uttar Pradesh State Road Transport Corporation (hereinafter
referred to as "U.P.S.R.T.C."). On the allegation that he was found to
be driving the bus URO 7908 and that no ticket had been issued to a
lone passenger found in the bus and he had in his possession used
tickets, disciplinary proceedings were initiated against the respondent.
A domestic enquiry was got conducted through a retired judicial
officer. He found that the respondent was unauthorisedly driving the
bus and that no ticket had been issued to a lone passenger sitting in the
bus when the checking party inspected the bus. He also found that the
respondent had in his possession 12 used tickets. Based on the
finding at the enquiry and after hearing the respondent, U.P.S.R.T.C.
imposed a punishment of removal against the respondent.
2. At the instance of the respondent, the matter was sent to
the labour court. It was numbered as Adjudication Case No. 259 of
1991. The Presiding Officer found that the domestic enquiry relied on
by the U.P.S.R.T.C. was not proper. The parties were given an
opportunity to lead evidence. U.P.S.R.T.C. adduced evidence in
support of the charge. The respondent adduced no evidence. In other
words, he did not even try to explain the circumstances under which
he was allegedly driving the bus or the circumstance in which it was
found that a lone passenger travelling in the bus had not been issued a
ticket. He also did not try to explain as to how he came to be in
possession of 12 used tickets. The Presiding Officer, in spite of the
absence of evidence on the side of the respondent proceeded to
interfere with the punishment imposed. It appears that the Presiding
Officer found that the respondent was a conductor but was driving the
bus. There was clear evidence before him that the driving of the bus
by a conductor amounted to misconduct. The Presiding Officer, in
fact, noticed that only the respondent could explain how the twelve
used tickets were with him or how he happened to be in possession of
them. He also stated that if used tickets were found with the
conductor it falls within the definition of misconduct. Taking a
curious view that since no action has been taken against the driver, no
action could be taken against the respondent alone and that the
punishment awarded was too severe, the Presiding Officer proceeded
to interfere with the punishment.
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3. The Presiding Officer directed the reinstatement of the
respondent with continuity of service and all the remaining dues but
directed the stoppage of his annual increment. He further directed that
the respondent will receive his annual increment only when he
satisfied his senior officers for three years without any charges or
complaint against him. Apparently, what he meant was that the
question of increment would depend upon the respondent satisfying
his superiors over a period of three years that his conduct as a
conductor during that period was blemishless.
4. U.P.S.R.T.C. filed a writ petition in the High Court of
Allahabad challenging the award of the labour court. By a reasoning,
which with all the restraint at our command, we can only describe as
perverse and a conclusion obviously flawed, the High Court dismissed
the Writ Petition. The main theme of the song was that no action had
been taken against the driver. The judge proceeded to speculate on
the reason why the conductor was driving the bus. He also stated that
the embezzlement alleged against the respondent was of a paltry sum
of Rs. 1.50. He came to a curious conclusion that the bus driver who
according to him had changed roles with the respondent as a
conductor, was responsible for not collecting the fare from the
passenger and no reason was shown why no charge sheet was given to
the driver and why no enquiry was held against him. The learned
judge also accepted the argument that the respondent was given a
totally disproportionate and harsh punishment for his misconduct.
The Writ Petition was dismissed. We are aghast at the approach made
by the learned judge and the reasoning adopted by him. Here was a
conductor who was not authorized to drive the bus. Admittedly, he
was driving the bus at the relevant time. He thus endangered the lives
of pedestrians and other vehicle owners using the road. He also
endangered the safety of the bus belonging to U.P.S.R.T.C. He was
found in possession of 12 used tickets for which he offered no
explanation. One passenger was found in the bus to whom no ticket
had been issued. If these are not enough to find the conductor of a bus
guilty of misconduct, we wonder what according to the learned judge
would be misconduct on the part of the conductor of a bus. The
judgment of the High Court is challenged in this appeal.
5. At the time of issuing notice, this Court issued notice
only limited to the question of back wages that was awarded to the
respondent. Of course, when we are hearing the appeal on grant of
leave or the petition for special leave to appeal after notice, we are
entitled to reopen the appeal in its entirety and consider the question
of punishment and the legality of the reinstatement ordered by the
labour court and affirmed by the High Court. This could be done by
giving a notice in that behalf to the respondent and giving him an
opportunity of being heard. But for the purpose of this case and at
this distance of time, we do not think that it is necessary to do so.
Therefore, somewhat reluctantly, we refrain from adopting that
course, though according to us, this is a fit case where neither the
labour court nor the High Court had any justification in interfering
with the order removing the respondent from service. The conduct of
the respondent as a conductor of U.P.S.R.T.C. was totally
irresponsible and clearly constituted misconduct on his part deserving
the maximum punishment.
6. We have no hesitation in coming to the conclusion that
the respondent did not deserve the award of back wages to him. In
fact, he must consider himself lucky to have been reinstated and that
we are not interfering with that reinstatement. When a conductor
drives a bus for which he is not authorized, he is endangering the
public as well as the property of his employer. This by itself is a
serious misconduct justifying dismissal of a conductor. Similarly, the
fact that one passenger was found travelling and had not been issued a
ticket for that journey, constitutes a grave charge against a conductor
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who is really in a position of trust as far as the employer-Corporation
is concerned. He is duty bound to collect the fare from every
passenger on behalf of his employer. Same is the position regarding
the unexplained twelve used tickets, found in his possession. That
prima facie suggests that there is room to doubt the honesty of the
respondent. He did not even try to explain the circumstances in that
regard. The charges are such that they show a betrayal of the trust
placed on the conductor by the employer and that the employee
endangered an asset of the corporation in addition to endangering the
lives of the other users of the road.
7. It is a misconception to consider that the amount
involved in an offence of this nature has a material bearing, while
considering whether there has been misconduct on the part of an
employee. It may be relevant in a criminal prosecution when
considering the quantum of punishment to be imposed. When a
person like the conductor of a bus, who has the obligation to make
proper collection of the charges from the passengers on issuing tickets
to them, is found to have passengers in the bus, even if it be only one,
to whom he had not issued a ticket, it clearly amounts to a clear
violation of the duty imposed on him. It is really a breach of the duty
cast on the conductor who is acting on behalf of the employer.
Whether it be one passenger or ten passengers it would make no
difference in principle in the absence of any explanation in that behalf.
It was simply the case of a conductor who had violated the
Regulations or the terms of his employment and had betrayed his
employer, which in any event, is a grave misconduct justifying a
dismissal.
8. We, therefore, allow the appeal in part and set aside the
award of back wages. The respondent would be entitled to wages or
salary only from the date of his being reinstated pursuant to the
direction of the labour court. If anything has been paid to him in
excess, U.P.S.R.T.C. would be entitled to adjust the same from his
future salary in monthly installments and/or recover it from his retiral
benefits, if he is not still in service or by proceeding otherwise.