Mahadeo Nage vs The Maharashtra State Road Transport Corporation

B.P. Dharmadhikari, J.—By this Writ Petition filed under Articles 226 and 227 of the Constitution of India, the petitioner-Conductor working with Respondent - Road Transport Corporation has challenged the judgment and order dated 16.2.2005 delivered by the Member, Industrial Court, Amravati in ULP (Revision) No: 114/2000. The petitioner was dismissed from services of respondent on 12.10.1992, after conducting departmental inquiry and he challenged that dismissal by filing Complaint (ULP) u/s 28 read with Section 7 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short the Act of 1971.) before the Labour Court, Amravati vide ULP Complaint No. 390/1992. In that complaint, on 31.5.1993, the Labour Court granted him relief for interim reinstatement. However, after hearing the parties on 18.9.2000, the Labour Court partly allowed the Complaint and ordered his reinstatement without back wages. In terms of the interim orders of Labour Court mentioned above, the petitioner was reinstated in service on 7.7.1993. The Respondent - MSRTC, then, filed Revision u/s 44 of the Act of 1971 before the Industrial Court and vide judgment and order dated 16.9.2006, the Industrial Court allowed that Revision. The Industrial Court granted time of 30 days to the petitioner to approach this Court and till then protected his services. The petitioner, accordingly, approached this Court and on 15.3.2005, the interim protection to his services was continued. The said interim protection was confirmed after hearing both the sides on 2nd May, 2005 and, thus, as on today, the petitioner is in service.

It is in this backdrop that I have heard the matter. Advocate V.M. Deshpande for petitioner points out that the respondent issued a charge-sheet dated 8.4.1992 alleging that petitioner has indulged in misconduct of not issuing tickets to passengers without reasonable excuse and, thus, permitting them to travel without tickets falling under Clause 7(A) of Schedule "A", of not issuing tickets to passengers though fare is recovered from therm, falling under Clause 7(C) of Schedule "A", dishonesty, cheating or misappropriation in relation to property or working of MSRTC falling under Clause 7(E) of Schedule "A", indiscipline falling under Clause 10 of Schedule "A" and not taking proper entries in the way bill falling under Clause 11 of Schedule "B". The misconduct was, in short, of carrying about 17 passengers without tickets though fare amount was recovered from them. The spot statement of petitioner was recorded and statement of those 17 passengers were also recorded through assistance of co-passenger Shri R.S. Wajge. After completing enquiry, the petitioner was dismissed from service. The Labour Court found that domestic enquiry conducted by employer was fair and proper; but recorded a finding that the findings of Inquiry Officer were perverse. It, therefore, found that punishment of dismissal constituted unfair labour practice and granted relief as mentioned above. In Revision, according to Advocate Deshpande, learned Member of Industrial Court, has re-appreciated the entire evidence and has arrived at a different conclusion. He argues that this is outside the scope of Section 44 of the Act of 1971. He further states that the learned Member of Industrial Court has placed heavy reliance upon the spot statement of present petitioner and he urges that said spot statement does not contain any admission to the prejudice of the present petitioner. He also invites attention to the part that none of the 17 passengers were examined in departmental inquiry; and Shri Wajge who wrote their statements was examined as defense witnesses. He states that Shri Wajge in departmental enquiry has stated that he wrote the statements as dictated to him by the Officers of MSRTC and the Labour Court, therefore, did not act upon those statements. Learned Member of Industrial Court has, however, placed reliance on those statements and has reversed the judgment of the Labour Court. He further points out that this is the first and last misconduct in the service record of the present petitioner. He contends that there is no previous adverse past service record and he invites attention of the Court to the order dated 2.5.2005 where this Court gave liberty to respondent-MSRTC to move for vacation of interim order if they had or if they get any adverse material against the petitioner. He states that as conduct of the petitioner prior to this incident and thereafter has been upright, the respondent could not move any such application. He points out that the petitioner is in service for last more than 16-years even after the date of alleged incident and hence his services need to be maintained and dismissing him from service at the stage would be cruel.

Advocate Mehadia for Respondent-MSRTC, on the other hand, states that the Labour Curt did not consider the entire material on which reliance was placed by the Inquiry Officer. Only part of it was considered and the Labour Court gave importance to the fact that 8 passengers whose statements were recorded were tribals. He points out that there were statements of remaining nine passengers on record which clearly implicated the petitioner, but those statements were ignored by the Labour Court. He further states that at the time of incident and checking of the Bus, the statement of present petitioner was also recorded and facts disclosed therein, were never disputed by the present petitioner. According to him, the said statement also has been ignored by the Labour court. The material ignored by the Labour Court has been looked into by the Industrial Court and, as such, the Industrial Court has corrected the jurisdictional error in the matter. He argues that the said material supports the findings arrived at by Inquiry Officer and, as such, the enquiry report and finding recorded therein were found to be not perverse by Industrial Court. In view of this finding, the punishment of dismissal has been restored. He relies upon the judgment of the Honorable Supreme Court reported in Delhi Transport Corporation Vs. Shyam Lal, , to state that admission given by any person is the best evidence which can be used against him. In order to show that passengers need not be examined, he relies upon the judgment of this Court reported in 1995 LXXIV FLR 27. Lastly, he relies upon the judgment of the Honourable Supreme Court reported in 2007 XII SCC 40 (AP RTC v. D. Swami ), to urge that merely because there is one such incident in the service career of petitioner, that cannot be treated as mitigating circumstance and a person like petitioner cannot, therefore, be continued in service of MSRTC. He urged that the petition needs to be dismissed.

I have perused the judgments of the Labour Court as also the Industrial Court with the able assistance of learned Counsel for respective parties. It is apparent that Labour Court did not fully consider the material which was taken into consideration by Inquiry Officer while arriving at a finding of guilt of the present petitioner. That error has been corrected by Industrial Court and it has evaluated that material also, while delivering its judgment which has been impugned in the present Writ Petition. It is, therefore, clear that material available on record was lost sight of by Labour Court and as that mistake has been corrected by the Industrial Court, it cannot be said that Industrial Court has exercised the jurisdiction not available to it u/s 44 of the Act of 1971. The contention of Advocate Deshpande on this count therefore, is not acceptable in the present matter.

The next question is what is the value of that material in so far as charge against the present petitioner is concerned. The heads of charges are already briefly stated by me above. The charge-sheet shows that the misconduct for which those charges were leveled was in relation to incident dated 27.3.1992 and, on that day, admittedly, the present petitioner was working as Conductor on Dharni-Ambapti route. The fact that his bus was checked on that day is also not in dispute. The charge-sheet mentions that a group of six passengers was found traveling without tickets from Adhao to Belkunda and petitioner had collected an amount of Rs. 24/- at the rate of Rs. 4/- per head from them at the place where the said group boarded the bus; however he did not issue them tickets till the spot of checking. After this it has been mentioned in the charge-sheet within bracket that scheduled fare for said trip was Rs. 5.50 per head. The second incident mentioned is about a group of 2 passengers traveling from Belkund to Koha and petitioner had recovered Rs. 6 from them i.e. at the rate of Rs. 3/- per head and did not issue tickets to them till the place of checking. It is mentioned that the actual fare for said journey was Rs. 3.50 per head. The misconduct No.3 is in relation to one passenger traveling from Adhao to Belkund. The details show that the petitioner had recovered amount of Rs. 4/- from him but had not issued ticket to him. There is some dispute about this charge between the parties. The reproduction of said charge in Complaint mentions that the fare amount for this journey was Rs. 3.50 only; and petitioner had recovered 50 n.p. in excess from said passenger. The said reproduction appears in Writ Petition also. This thing has been mentioned though in charge-sheet there is no reference to actual fare amount or excess recovery from said passenger by petitioner. However, it is to be noticed that though the Checking Squad specifically reported this in their report to MSRTC, the charge of excess recovery was not leveled against the petitioner. The misconduct No. 4 is carrying 8 passengers without tickets from Selu-phata to Koha without recovering fare from them and without issuing tickets to them. The last misconduct i.e. Misconduct No.5 is not filling in the way bill as per rules.

Thus, the above details clearly show that the misconducts were in relation to receiving fare amount from passengers either less or more or not recovering fare amount from passengers. To prove this misconduct, the respondent relied upon the statements of passengers recorded on the spot. It is not in dispute that all the 17 passengers were not knowing reading and writing and 8 of them were tribals. The Checking Staff, therefore, took assistance of one Mr R.S. Wajge and the said person who knew the local dialect helped the Checking Staff in recording the statements of those passengers. Though without ticket passengers were not examined in departmental enquiry, the respondent did not examine Shri Wajge also as prosecution witness. He was produced by present petitioner as his witness and he has deposed that the bus conductor was demanding amount from these passengers and these passengers were refusing to pay the amount and conductor was insisting upon payment. One minute before the bus was checked these passengers gave the amount to conductor and conductor was about to issue tickets to them only then the ticket tray was removed from him by Checking Staff. This person has been cross-examined but in cross-examination, again, he has maintained the same story. In this respect, perusal of the spot statement of present petitioner recorded by Checking Squad immediately at the time of checking, also shows the same narration. He has accepted the facts only as disclosed in the charge sheet as constituting misconduct. He has further stated that from passengers who were found traveling without ticket and from whom fare was not collected, the Checking Staff did not collect the penalty or fine. He has also mentioned that these passengers were tribals. In his reply to charge-sheet, he has maintained the same stand and has further stated that as the running time was less, he was constrained to issue tickets in running bus and it was not possible for him to issue tickets first and then start the bus. He has further stated that the bus was checked within 5 kms. after it started. He stated that he had not closed the the way bill and as ther passengers were not paying complete fare amount and they were also not in position to explain correctly their destination because of language problem, the tickets could not be issued immediately. This narration in his reply to charge-sheet, is supported by Shri Wajge also.

The perusal of the statement of without ticket passengers again show the facts as mentioned above. The group of two passengers has mentioned that they have given fair amount of Rs. 6/- only, to petitioner but then the petitioner had not issued tickets to them. Thus, the amount mentioned as received by petitioner in charge-sheet is accepted in the said statements also.

The question therefore, is whether it can be said that in such facts the petitioner deliberately did not issue tickets to these passengers or he deliberately accepted less amount from these passengers with a view to misappropriate it later on without issuing tickets to them. None of the passengers have stated anything about his intention to misappropriate the fare amount paid by them. The passengers have also not stated that they demanded tickets and tickets were not issued to them. The respondent- MSRTC is accepting that the passengers had not paid complete fare amount to the present petitioner and the respondent has not recovered any penalty or fine from any of these passengers for not paying the complete fare amount. In normal circumstances without passengers paying full fare to petitioner, he is not expected to issue tickets to them. His reply to charge-sheet or the evidence of Shri Wajge brought on record by him, clearly show that as there was some problem in issuing tickets, the tickets could not be issued. It is to be noted that till tickets are issued the way bill could not have been closed. The petitioner has accepted that way bill was also open. In these circumstances, I find that though passengers were not necessary witnesses to show the collection of fare amount from them, the passengers needed to be examined or then at least Shri Wajge ought to have been examined to show that defense raised by the present petitioner was false or by way of an afterthought.

The details of misconduct mentioned above clearly shows that no fare amount was recovered from group of 8 passengers which was traveling from Seluphata to Koha. It is apparent that if the petitioner wanted to misappropriate the amount he could have also recovered fare amount from these eight passengers. Though Advocate Mehadia has strongly tried to contend that an amount of Rs. 4/- i.e. excess amount of 50 n.p. was recovered from one passenger and though he wants to point out from other material on record that fare amount for said journey was only Rs. 3.50 n.p. still as the charge in that respect has not been specifically leveled and misconduct of recovering excess amount has not been mentioned, it is difficult for me in this matter to hold that the excess amount was recovered for misappropriation.

It is in these circumstances that the past service record of the present petitioner becomes relevant. On 2nd May 2005 when interim relief was continued, liberty was given to the Respondent - MSRTC to point out such past record and then even any misconduct committed by the petitioner in future i. e. after his reinstatement and to move for vacation of interim orders. The record shows that the Respondent MSRTC has not placed on record any such past service record and has also not moved any application for vacation of interim orders.

The application of mind in Revision by Industrial Court needs to be considered in this background even if the Labour Court did not consider the entire material available on record. I find that the view reached by the Labour Court could not have been set aside by the learned Member of the Industrial Court. The spot statement of present petitioner or the facts being disclosed in statements of passengers do not show any misconduct as such, on part of the present petitioner. Inference to that effect reached by the learned Member of Industrial Court on the basis of said material is, therefore, unsustainable. I am, therefore, not in position to sustain the judgment dated 16.2.2005 delivered by Industrial Court. It is no doubt true that the misconduct of present nature even if one is sufficient to support the punishment of dismissal. The judgment in case of Depot Manager, APSRTC Vs. B. Swamy, cited by learned Counsel for respondent is clear. There are various judgments of the Honorable Apex Court taking the similar view. However, here, as the misconduct itself has not been found to be established, the said law cannot be applied.

In the circumstances the impugned judgment dated 16.2.2005 delivered by the Industrial Court Amravati in Revision ULP No. 114/2000 is hereby quashed and set aside. The judgment and order dated 18.9.2000 delivered by the Labour Court, Armavati in ULP No. 390/1992 is hereby restored. Writ Petition is accordingly, allowed. However, in the circumstances of the case, there shall be no order as to costs.