Rajasthan State Road Transport Corporation and Others vs Industrial Tribunal and Another

B.S. Chauhan, J.—Both these writ petitions have been filed against the impugned Award dated February 14, 1990 passed by the respondent No. 1 Tribunal while deciding the reference dated December 5, 1987 whether the services of workman Mr. Devkinandan had been terminated in accordance with law and if not to what relief he was entitled for.

The facts and circumstances giving rise to these cases are that Mr. Devkinandan, who is a respondent-workman is S.B. Civil Writ Petition No. 2885/1990 and petitioner in S.B. Civil Writ Petition No. 4568/1990, had been appointed temporarily as a Conductor with the Rajasthan State Road Transport Corporation (for short, "the Corporation") and on four occasions he had been given a charge-sheet and after holding the full-fledged enquiry he was found to be guilty of various delinquencies and punishment had been awarded to him. The appeals fifed by him had already been finalised. However, the impugned order relates to an incident which occurred on October 21, 1982 when the vehicle, in which he was working as a Conductor, on inspection, was found having two passengers travelling without tickets. He had been given a charge-sheet on February 1, 1983 and was, also, put under suspension. The enquiry was conducted and the Enquiry Officer submitted his report. On the basis of the said report, the order of removal from service was passed by the Disciplinary Authority on October 10, 1983. Being aggrieved, the delinquent preferred an appeal and the same was rejected. Thereafter the delinquent approached the Labour Court by way of reference u/s 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act"). While deciding the said reference, the Labour Court resorted to the procedure provided under the provisions of Section 11A of the Act and after considering the evidence adduced by the parties, it came to the conclusion that domestic enquiry conducted against the delinquent was fair and in consonance with law; however, the Court held that the delinquent must have been given one more opportunity to improve himself and, therefore, the order of removal was substituted by the order of reinstatement. Being aggrieved and dissatisfied with the impugned Award, the Corporation preferred S.B. Civil Writ Petition No. 2885/1990. Against the same Award, the delinquent has, also preferred S.B. Civil Writ Petition No. 4568/1990 raising the grievance that the Labour Court has illegally deprived him from all consequential benefits of service and the full back wages on the ground that once the Labour Court has set-aside the impugned order of termination dated October 10, 1983, he should have been awarded all the consequential benefits and reliefs. As both the petitions have been filed against the same impugned Award, they were heard together and are being decided by a common judgment.

Heard Mr. B.S. Bhati, learned counsel for the Corporation and Mr. A.K. Rajwanshi for the workman-delinquent.

The claim petition filed before the Labour Court by the delinquent itself makes it clear that in the domestic enquiry, the charge sheet dated February 1. 1983 against him provided that on October 21, 1982, when the vehicle, on which the delinquent was working as a Conductor, was inspected, two passengers were found travelling without tickets and he had already charged the fare from them but did not issue the tickets though he had issued them the ticket for the luggage, i.e., a bicycle. This charge was found proved and then the impugned order of punishment dated October 10, 1983 was passed. In the counter-claim, the Corporation has explained the entire conduct of the delinquent showing that (i) on April 29, 1977, seven passengers were found travelling without tickets and for which, after giving him a chargesheet and holding the enquiry, the delinquent was found guilty of the misconduct vide order dated January 31, 1978 and his services were terminated. However, in appeal, the Appellate Authority took a lenient view and the punishment of termination was commuted to stoppage of two annual grade increments with cumulative effect; (ii) on September 28, 1980, again ten passengers were found travelling without tickets, the delinquent was chargesheeted on November 1, 1980 and after holding an enquiry, punishment of stoppage of one annual grade increment with cumulative effect and an order for forfeiture of due emoluments during the suspension period, was imposed and a warning was also recorded for this default and that punishment attained the finality; (iii) on March 26, 1981, again ten passengers were found travelling without tickets and the delinquent was chargesheeted on June 15, 1981 and after holding an enquiry he was found guilty and a punishment of fine was imposed upon him and he was warned to be careful in future and his emoluments during the suspension period were also forfeited; and (iv) disciplinary proceedings were also pending against him in respect of the incident dated July 28, 1981 when he was found working against the Rules. The last incident occurred on October 21, 1982, which has given rise to the instant cases.

Before the Labour Court, the witnesses were examined. The member of the inspecting team made a categorical statement that the delinquent had charged the fare from the passengers but did not issue them the tickets and the Corporation tried to impress upon the Court that it was a case of embezzlement involving moral turpitude and the punishment of removal cannot be said to be disproportionate to the gravity of the charge. However, the Labour Court, vide impugned Award, after holding that the enqiry was fair and in consonance with law, interfered with the quantum of punishment only on the ground that one last opportunity was required to be given to the delinquent to improve himself.

The issue of jurisdiction of the Labour Court to interfere with the quantum of punishment in a case where it resorted to the procedure u/s 11A of the Act, is not mere res integra. Hon''ble Apex Court has considered this issue from time and again and has categorically held that once the misconduct is proved, either in the enquiry conducted by an employer or by the evidence adduced before the Tribunal for the first time, the punishment imposed cannot be interfered with by the Tribunal except in the cases where the punishment is so harsh as to suggest victimization. Therefore, the scope of interference with the quantum of punishment is very limited. The power u/s 11A of the Act has to be exercised judiciously and the Labour Court may interfere with the decision of the management u/s 11A only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of the guilt of the workman concerned. The Labour Court has to give reasons for its decision such an interference and the decision of the Labour Court is again subject to judicial review by the High Court. Vide the The Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management and Others, Rama Kant Misra Vs. The State of Uttar Pradesh and Others, Management of Hindustan Machine Tools Ltd., Bangalore Vs. Mohd. Usman and Another, Christian Medical College Hospital Employees'' Union and Another Vs. Christian Medical College Vellore Association and Others, Scooters India Limited Vs. Labour Court and Others, and Workmen Vs. Bharat Fritz Werner (P) Ltd. and Another, Similar view has been taken by the Full Bench of this Court in S.B. Civil Writ Petition No. 6345/1992, R.S.R.T.C. v. Gopal Singh, decided on October 24 . 1999 III LLJ (Suppl) 810.

While deciding a case u/s 11A of the Act, the Labour Court has to be guided by the consideration that the finding of misconduct arrived at by it, may lead to an inference that the management had lost the confidence in the workman that he would truthfully and faithfully perform his duties. (Vide Punjab Dairy Development Corporation Limited and another, etc. Vs. Kala Singh, etc.,

Thus, it is abundant clear that in a case where the Labour Court, after considering evidence u/s 11A, comes to the conclusion that the enquiry was fair and the management succeeded even before the Labour Court to prove the misconduct of the delinquent, the quantum of punishment can be interfered with only after evaluating the severity of the misconduct and by assessing whether punishment imposed by the employer is incommensurate with the gravity of the misconduct.

In the instant case, the management had found the delinquent guilty of embezzlement in its domestic enquiry. Even before the Labour Court, it succeeded to prove it. Therefore, the question whether the punishment of termination was commensurate to the gravity, is to be examined by this Court as the Award is subject to judicial review by this Court. A Division Bench of this Court, in R.S.R.T.C. v. Mool Singh 1995 Lab IC 771 while examining an identical case, held that the introduction of Section 11A in the Act has empowered the Labour Court to award lesser punishment but the discretion for such an exercise cannot be "unguided, unchannelised or arbitrary." The Court further distinguished the charge of misconduct from misappropriation and held that in a case of misappropriation, as moral turpitude is involved, the question of imposing lesser punishment cannot arise. The view taken by this Court is in consonance with the law laid down by the Hon''ble Apex Court in Municipal corporation, Bahadurgarh v. Krishna Bihari 1996 (3) JT (SC) 96:

It is not the quantum involved in embezzlement but it is the essence but it is the essence of mens rea involved therein which is a determining factor for imposing the punishment. The Labour Court had unnecessarily indulged by showing so much sympathy towards the delinquent who had been habitual of such kind of delinquencies and it was not the sole incident that Labour Court ought to have given him one more opportunity. of improvement. This Court has considered the identical issue while deciding S.B. Civil Writ Petition No. 2186/1990, R.S.R.T.C., Udaipur v. Labour Court decided on February 28, 1997; and S.B. Civil Writ Petition No. 1355/1992, R. S. R. T. C. v. Kamala Shanker Pujari, decided March 11, 1997, holding that once the question of misconduct is proved against the delinquent employee, it cannot be said that the punishment was disproportionate to the delinquency, the Court had no competence to substitute any punishment other than awarded by the management, for the reason that wherever the misconduct is of misappropriation or embezzlement, the Court has to refrain itself from exercising the jurisdiction u/s 11A for commuting the punishment and this Court set-aside the orders passed by the Labour Court for substituting the punishment of removal by reinstatement for giving an opportunity to improve. The Court further observed that the Writ Court should be slow in interfering with the finding recorded by the Labour Court but in view of the fact that the punishment substituted by the Labour Court cannot be sustained in the eyes of law, this Court must interfere and if the domestic enquiry is held to be valid, its consequences are bound to echo in the Award.

Mr. Rajwanshi has submitted that the domestic enquiry stood vitiated for the reason that before passing the impugned order of termination dated October 10, 1983, the petitioner has not been given the opportunity to submit explanation against the enquiry report. The submission is preposterous as Mr. Rajwanshi has not been able to point-out what prejudice is caused to the delinquent nor it has been explained in the writ petition as how it has prejudiced the cause of the delinquent. However, the impugned order of punishment is to be tested on the touch-stone of doctrine of prejudice. (Vide Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., State Bank of Patiala and others Vs. S.K. Sharma, Major G.S. Sodhi Vs. Union of India (UOI), S.K. Singh Vs. Central Bank of India and Others, and Monika Jain v. State of Rajasthan 1998 (1) RLW 71.

Mr. Rajwanshi tried to impress upon the Court that the delinquent was going to issue tickets and earlier he could not do so as he was in hurry because a private bus was competing. The averment is not based on pleadings nor the pleadings which run counter to the basic law, can be permitted to be agitated by the delinquent. The route on which the Corporation is plying the buses, is a notified route and no private vehicle can operate on the said route.

In the instant case, as there was evidence before the Labour Court that the delinquent had already been given several opportunities to improve himself but he failed to improve, the impugned award is unwarranted and uncalled for. Thus, in view of the above, the writ petition filed by the Corporation deserves to be allowed. The writ petition filed by the delinquent is mainly for seeking the full back wages and other consequential benefits. The submissions made therein are not tenable. Moreover, in view of the judgment of the Hon''ble Supreme Court in R. Thiruvirkolam Vs. Presiding Officer and another, and Director, State of Punjab v. Gurdev Singh 1998 (4) JT (SC) 352. even if the domestic enquiry is found to be defective but management succeeds in proving the misconduct of the delinquent before the Labour Court, the order of punishment would relate back from the date of decision of the management. Thus, the writ petition filed by the delinquent is liable to be dismissed.

In the result, S.B. Civil Writ Petition No. 2885/1990, filed by the Corporation succeeds and is allowed. The impugned Award dated February 14, 1900 is set aside and the punishment of removal dated October 10, 1983 awarded by the management is upheld. S.B. Civil Writ Petition No. 4568/1990 filed by the workman in dismissed.