The Managing Director, B.M.T.C. vs H.L. Srinivasa

R. Gururajan, J.—Petitioner is before me challenging the award at Annexure-J dated 23.8.2002 passed by the Labour Court, Bangalore.

Respondent -conductor was subjected to a surprise check on scheduled route No. 169 plying between Jeevanahally and Kurubarahalli at Modi Hospital and found that the Respondent has failed to issue 10 tickets of 0.75 ps denomination to ten passengers who were travelling from Harischandra Ghat to Modi Hospital despite collecting the requisite bus fare from the passengers. These passengers were found to be travelling in two different groups and they had paid the requisite fare of Rs. 0.75 ps each to the Respondent . The statement of the ticket less passengers was recorded, penalty was levied on the passengers and an offence memo was issued to the Respondent on the spot. Reply was submitted and an enquiry was held. Enquiry report was submitted. Show-cause notice was issued and reply was submitted in terms of Annexure-D. Petitioner states that on an earlier occasion when the Respondent committed the very same misconduct, the Labour Court passed an award in terms of Annexure-E stating that the Respondent is liable to lose his job in case he once again commits the graver misconduct of pilferage. Petitioner further says that the Disciplinary authority in the light of the past record and in the given circumstances has chosen to dismiss the workman from service on 20.5.1999. Respondent raised an industrial dispute. The Labour Court held that the charge of misappropriation stood established, however it has held that the order of dismissal passed by the Corporation is inconsistent with the order passed by the Corporation in one of its cases and the Labour Court directed reinstatement with continuity of service without back wages and with denial of two increments. This order is challenged by the Corporation.

Learned Counsel for the Petitioner invites my attention to the material facts to contend that the Labour Court is wrong in ordering reinstatement. She refers to the earlier award and the proceedings in the case on hand to show that the dishonest workman deserves no sympathy.

Learned Counsel for the Respondent says that the amount involved is meager and for this reason Labour Court has denied all the benefits except reinstatement. Learned Counsel says that his client would suffer hardship if the award is set aside by this Court.

Admittedly, the present case involves disciplinary proceedings against the conductor for collection of the Corporation money from the passengers. A detailed enquiry was held and the Respondent was found guilty of charges. The Labour Court has also held that the enquiry is fair and proper and has also held the proof of misconduct in favour of the management. However the Labour Court ordered reinstatement on the ground that the order is inconsistent with the order passed by the Corporation in one if its cases. In my view that cannot be the ground for ordering reinstatement when the matter involves revenue of the Corporation. The Labour Court could not have exercised its power u/s 11-A in the matter of reinstatement. This issue is dealt with by the Supreme Court as well as by this Court in various cases.

A Division Bench of this Court in 2002 LLJ 1581 has chosen to deprecate misplaced sympathy and ruled that it cannot be said that the punishment imposed by the management was shockingly disproportionate in such cases. Therefore neither the Labour Court nor this Court could have directed reinstatement with payment of back wages as well thereby giving premium to the misconduct and on the other hand punishing the Appellant-Corporation for taking appropriate disciplinary action against the erring employees.

The Supreme Court in Karnataka State Road Transport Corporation Vs. 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 interalia 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. The Supreme Court was firmly of the opinion that in such cases, orders of dismissal should not be set aside.

Recently, in AIR 2004 SCW 5530, the Supreme Court has ruled that to continue an erring employee in the employment of the Corporation by virtue of a judicial order, is an act of misplaced sympathy which can find no foundation in law or in equity.

All these judgments are squarely applicable to the facts of this case. In the light of proof of misconduct, past history, and in the light of the various judgments the order of the Labour Court requires my interference.

In the result, the petition is allowed. The impugned award is set aside. The order of termination is upheld.

Ordered accordingly, No