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Judgment
S.S. Chauhan, J.—The petitioner through this petition has challenged the order of removal dated 24.2.1984 as well as the order dated 18.6.1987.
The facts in brief are that petitioner was initially appointed in the U.P. State Roadways Corporation on 3.8.1976 as Conductor at District Basti and thereafter he was transferred to Gonda depot. On 30.9.1983 when the petitioner was conducting the Bus No. UPX-8036 on Balrampur-Bahraich route it was stopped near Dharsava by about 20 stranded passengers, who boarded the bus and informed the petitioner that the bus in which they were travelling after leaving the Bus Station developed a snag and they are in a hurry to go to Bahraich and since seats were available in the petitioner''s bus, he has allowed them to continue their journey, but the passengers insisted that the bus be not stopped for purposes of issuing tickets and the bus, which was delayed because of forcible stoppage enroute, was allowed to continue journey and the petitioner started counting the passengers for purposes of issuing tickets, but before counting could be made the bus was signalled to stop for the purpose of checking by Sri R.S. Srivastava, Traffic superintendent and members of his squad. Upon signal the bus was stopped and it was checked by the checking squad in which it was found that 20 passengers were found without ticket. The petitioner informed the checking squad that 20 passengers have boarded the bus only some distance back and, therefore, tickets could not be issued as their number was being counted by the petitioner. Upon these allegations, a charge sheet was issued to the petitioner on 3.10.1983 to which he submitted his reply on 12.11.1983. After submission of charge sheet the enquiry officer fixed the date for holding oral enquiry as 24.1.1984, but on that date the checking squad could not appear and hence 14.2.1984 was fixed as the next date. On 14.2.1984 the statements of the petitioner as well as members of the checking squad were recorded separately. After considering the entire material the removal order was passed on 24.2.1984. The aforesaid order was challenged by means of Writ Petition No. 4418 (SS) of 1993. In the said writ petition a preliminary objection was raised in regard to maintainability of the joint writ petition and the said writ petition was got withdrawn with liberty to file a fresh petition. Hence this petition.
Submission of learned Counsel for the petitioner is that charge against the petitioner has not been proved during the course of enquiry and there is no evidence on record to prove the charge of carrying ticket-less passengers. He further submits that charge against the petitioner could not be proved in absence of any evidence and hence the removal order is bad in law. He also submits that statement of defence witness Sri Bihari Lal Chand was not considered while passing the removal order on the ground that no reliance could be placed on his statement since he was not travelling at the relevant time in the bus. Reliance has also been placed on the judgment rendered in Writ Petition No. 9005 (SS) of 1992, Virendra Kumar Awasthi v. U.P.S.R.T.C. and Ors., to assert that in identical circumstances the writ petition was allowed.
Counsel for the U.P.S.R.T.C., on the other hand, has submitted that enquiry was held in accordance with law and the petitioner was given full opportunity to cross-examine the member of the checking squad, who checked the bus and prepared the report against the petitioner. It is further submitted that the enquiry as contemplated under law was held and full opportunity was given to the petitioner and, therefore, no illegality can be attributed to the removal order. It is also submitted that charge against the petitioner was found to be established for carrying 22 passengers without ticket and it was found during the course of enquiry that the said amount has been realised by the Conductor at the time of boarding of the bus from the passengers. The ticket amount was prepared by the checking squad and the same was realised from the passengers and after cross-examining Sri R.S. Srivastava, Traffic Superintendent the removal order was passed, hence the same does not require any interference.
I have heard learned Counsel for the parties and gone through the record.
It is evident from the record that after submission of charge sheet and its reply the enquiry officer fixed the date for holding oral enquiry as 24.1.1984, but on that date the checking squad could not appear and hence 14.2.1984 was fixed as the next date. On 14.2.1984 the statements of the petitioner as well as members of the checking squad were recorded separately. The petitioner was also given opportunity to cross-examine Sri R.S. Srivastava, Traffic Superintendent and Shyam Behari Lal, Traffic Inspector and they reiterated that whatever they have written in their report is their statement. In regard to the evidence of defence witness, Behari Lal Chand it was found that this person was not travelling in the bus on the said date and, therefore, he is not in a position to explain as to what has happened after the checking squad signalled for stopping the bus. The petitioner could not extract anything in his favour from the cross-examination of Sri R.S. Srivastava, Traffic Superintendent and Shyam Behari Lal, Traffic Inspector. The charge against the petitioner was found to be proved and out of 57 passengers 22 were found to be traveling without ticket and the tickets were prepared on the spot and amount was realised. On an enquiry it was found that the said amount has been realised from those passengers at the time of boarding. Thus, the charge against the petitioner has been found to be substantially proved during the course of enquiry.
Counsel for the petitioner has also relied upon a decision of this Court rendered in Writ Petition No. 9005 (SS) of 1995, Virendra Kumar Awasthi v. State of U.P. and Ors., but from the said case the petitioner cannot get any support on account of the fact that the said case was allowed on the premise that no evidence was led to prove the charges by the Corporation during the course of enquiry, whereas in the case of the petitioner it is altogether different position and the things are in the reverse gear.
The apex Court while considering the law in regard to dismissal of Conductor has laid down the law succinctly and has held that Conductor holds a post of trust, therefore, loss or no loss is not of any consequence, but if it is found that he is responsible for the misconduct, then dismissal order is not required to be interfered with vide Regional Manager, U.P.S.R.T.C., Etawah and Others Vs. Hoti Lal and Another, V. Ramana Vs. A.P.S.R.T.C. and Others,
Recently, while dealing with the similar question the apex Court in the case of Divisional Manager, Rajasthan S.R.T.C. Vs. Kamruddin, held as under:
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 v. B.S. Hullikatti (2001) 2 SCC 574, wherein it was held:
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 on 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 more 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.
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.
A three judge Bench of this Court in Regional Manager, RSRTC v. Ghanshyam v. Sharma, (2002) 1 LLJ 234 SC reiterated the said principle, stating:
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.
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 u/s 11A 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 Corporation and when a conductor fails to do so, then it will be misplaced sympathy to order his reinstatement instead of dismissal.
The apex Court while dealing with the question of non-issuance of tickets has held that non-issuance of tickets to passengers does not only lead to monetary loss to Corporation, but also to loss of confidence in employee.
In the case of The Regional Manager, Rajasthan State Road Transport Corporation Vs. Sohan Lal etc., the apex court held as under:
We notice from the finding of the Industrial Tribunal that the respondent-workman had indulged in misconduct which has not only led to monetary loss to the Corporation but the Corporation has also lost confidence in the said workman. Therefore, to continue such an employee in the employment of the Corporation by virtue of a judicial order, in our opinion, is an act of misplaced sympathy which can find no foundation in law or in equity. The finding that the workman has committed the misconduct in question of not issuing tickets to passengers is a finding of fact arrived at by the Tribunal after taking into consideration the evidence recorded therein. This finding was affirmed by the learned Single Judge and the High Court has not set aside the finding. Therefore, the question of moulding the relief on the facts of this case did not arise at all. The offer of the respondent to forego the back wages in lieu of his being re-instated is not an offer to be taken into consideration by the Court unless and until the finding of the Tribunal on misconduct was set aside and having perused the records including the order of the Tribunal, we are satisfied that this is not one of those cases in which there was room for setting aside such a finding.
Similarly, in the case of Depot Manager, A.P.S.R.T.C. Vs. Raghuda Siva Sankar Prasad, the apex Court held as under:
The learned Judges of the High Court have also failed to appreciate that once an employee has lost the confidence of the employer, it would not be safe and in the interest of the Corporation to continue the employee in the service. The punishment, imposed by the management in the facts and circumstances of the case, is not disproportionate and that the punishment of removal from service is just and reasonable and proportionate to the proved misconduct.
In our view, the theft committed by the respondent amounts to misconduct and, therefore, we have no hesitation to set aside the orders passed by the learned Single Judge and also of the Division Bench and restore the order of removal of the respondent from service. When the Labour Court has proved the charges, no interference by the learned Single Judge or by the Division Bench of the High Court was called for. In the instant case, the jurisdiction vested with the Labour Court has been exercised judiciously and fairly. In our opinion, the conclusion arrived at by the High Court in ordering reinstatement, continuity of service was shockingly disproportionate to the nature of charges already proved which is in the nature of theft.
Interfering therefore with the quantum of punishment of the respondent herein, is not called for. In our opinion, the respondent has no legal right to continue in the Corporation. As held by this Court, in a catena of judgments that the loss of confidence occupies the primary factor and not the amount of money and that sympathy and generosity cannot be a factor which is permissible in law in such matters. When the employee is found guilty of theft, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of removal. In such cases, there is no place of generosity or place of sympathy on the part of the judicial forums and interfering with the quantum of the punishment.
Thus, having considered the case of the petitioner from all corners, I find that the Corporation has proved the case beyond hilt and the charge against the petitioner as alleged in the charge sheet is fully established. Hence, the opposite parties have committed no illegality in dismissing the petitioner from service. The petitioner has also filed writ petition at a very belated stage i.e. in the year 2007, whereas the controversy stood decided in 1987. The validity of the Validating Act has been upheld by this Court and so nothing wrong can be found in the exercise of powers by the opposite parties in dismissing the petitioner from service.
Petition is devoid of merit. It is accordingly dismissed.