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Judgment
Vinod K. Sharma, J.—Tamil Nadu State Transport Corporation, being aggrieved by the Award dated 8.11.2010, passed by the Labour
Court, Madurai in I.D. No. 39 of 2003, ordering reinstatement of the second respondent, without back-wages has filed this writ petition. The
second respondent was appointed, as Conductor by the petitioner on 18.8.1991. On 27.4.2003. while the second respondent was performing his
duties, as Conductor on the bus bearing Registration No. TN 58 N 08 in Madapuram to Periyar trip, it was checked by the Checking Inspector at
4.40 p.m.
On verification, it was found, that the second respondent had issued old tickets of Rs. 8.50 denomination to 14 passengers and 4 tickets of Rs.
7.50 to 4 passengers, the tickets which were earlier issued during earlier 2.25 p.m., trip.
The second respondent, therefore was alleged to have mis-appropriated a sum of Rs. 149/- (Rupees One Hundred and Forty Nine only).
It is noted, that even on earlier occasions, the petitioner was punished several times, for unauthorized absence and misappropriation.
The act of misappropriation, being a serious misconduct, the second respondent was issued a Charge Memo. Departmental enquiry was held, in
which the charges were proved against the petitioner. Agreeing with the findings of the Enquiry Officer, the competent authority terminated the
petitioner from service on 30.6.2003.
The second respondent, being aggrieved by the order of termination, raised an industrial dispute, to challenge the order of termination with a
relief of reinstatement, with continuity of service and full back-wages.
In the claim petition filed before the Labour Court, it was pleaded by the second respondent, that he was working as Conductor for the last 13
years, and was drawing a sum of Rs. 4,440/- (Rupees Four Thousand Four Hundred and Forty Only) and total of Rs. 6,888/- (Rupees Six
Thousand Eight Hundred and Eighty Eight only), including allowances.
The second respondent was suspended on 30.4.2003, as already noticed above, it is the case of the workman/second respondent, that he was
terminated from service on 30.6.2003, after holding departmental enquiry.
The stand of the second respondent before learned Labour Court was, that as per Standing Order No. 16(5), Charge Memo was issued to
respondent No. 2 on the charge that the second respondent had misappropriated the funds, whereas Standing Order 16(5) talks about theft,
mischief, dishonestly relating to Corporation''s business. The misappropriation of fund was not an offence under Standing Order 16(5). It was also
submitted that the findings of the Enquiry Officer was not sustainable.
The defense of the second respondent was, that he had wrongly punched the tickets as ""down"" instead of ""up"", whereas he had no intention to
misappropriate the funds. The act of the second respondent was not willful, and it was out of mistake, which occurred due to over work. It was
also the stand of the workman/second respondent, that out of fear, that there may be shortage of tickets, he had used the tickets twice.
The stand of the second respondent/workman itself shows, that he admitted his guilt, even in his statement of claim, by admitting that he had
used the tickets twice.
In the counter, the stand of petitioner was, that the second respondent was guilty of misappropriation. The allegations against the petitioner in
the Charge Memo were reiterated in the counter. It was further the stand of the petitioner, that fair and proper enquiry was held, in which the
petitioner was given full opportunity. After receipt of enquiry report, show cause notice was issued, and thereafter he was terminated from service.
A reading of the Award passed by the Labour Court shows, that the Workman did not challenge the enquiry proceedings. It was recorded,
that the only question to be decided by the Labour Court was whether the punishment awarded to the workman on proved misconduct was
disproportionate to the proved charges.
In spite of this finding, the learned Labour Court took note of the stand of the work-man, that it was a mistake of punching the tickets. It is not
understood how after recording a positive finding that the enquiry was fair and proper and was not under challenge, where was necessity to go into
the facts.
The bias of the learned Labour Court is proved by the findings itself, as the learned Labour Court has recorded, that the Management placed
only xerox copies of the documents, on record which were admitted in evidence. The learned Labour Court has thereafter recorded, that this error
was not pointed out by the Court, in order to show mercy to the second respondent. This finding on face of it is perverse. The Court is not
supposed to act dishonestly. The Court is to act impartially. Even otherwise, once the enquiry report was not under challenge, there was hardly any
necessity for the petitioner, to prove the charges once again. The documents placed on record were merely to prove the charges in case enquiry
proceedings were challenged, but before the learned Labour Court, the respondent No. 2 did not challenge either the enquiry or finding of guilt.
There is another error in the Award passed by the learned Labour Court, in recording that when the punishment is disproportionate, then
reinstatement with full back-wages is normal rule. This finding is the imagination of the learned Labour Court.
It is only in case where the person is exonerated of the charges, and Enquiry is held to be bad or charges not proved, that it is normal rule that
the workman is entitled to reinstatement with back-wages, and not where the workman is found guilty and jurisdiction is exercised u/s 11-A of the
Industrial Disputes Act.
The learned Labour Court has also not recorded the reasons as to how the punishment was disproportionate, as the charge against the
petitioner was misappropriation. An employee guilty of misappropriation does not deserve any leniency even if misappropriated amount is meagre.
The amount may be small, but to curb and repress this kind of proclivity, the order of punishment was fully justified, as petitioner was a habitual
offender.
The Hon''ble Supreme Court in the case of T.N.C.S. Corporation Limited and Others v. K. Meera Bai (2006) 2 SCC 225 held, that where
the employee was found guilty of misappropriating the employer Corporation''s fund, the primary factor to be taken into consideration was the loss
of confidence, and not the amount of money misappropriated, and therefore the order of dismissal from service was held not to be
disproportionate.
Though it is settled law, that this Court does not sit in Appeal over the findings of the learned Labour Court, in exercise of writ jurisdiction, but
at the same time, if the findings of the learned Labour Court is totally perverse, and not sustainable in law, this Court can always interfere.
It is a classic case where the Labour Court has tried to go out of the way to help an employee who was guilty of proved misappropriation.
The punishment of termination of service, by no stretch of imagination, can be said to be excessive, which could give jurisdiction to learned
Labour Court to interfere with the punishment. Consequently, this writ petition is allowed, the Award of the learned Labour Court is quashed. The
claim petition of the second respondent/workman is ordered to be dismissed.
No costs.
The connected M.P.(MD) Nos. 1 of 2011 and 1 of 2012 are closed.