Shri Dattatraya Mahadev Deshmukh vs Maharashtra State Road Transport ...
2003 Latest Caselaw 1062 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. Rule, returnable forthwith. Respondent waives service. By consent taken up for hearing and final disposal.

2. In a matter which arose out of a reference under Section 10 of the Industrial Disputes Act, 1947, the Labour Court held by a Part-I award dated 22nd September 1998 that the disciplinary enquiry which was conducted by the employer was fair and proper. The Labour Court held that the findings which had been arrived at in the disciplinary proceedings were not perverse. Thereafter, by a Part-II award dated 14 February 2002, the Labour Court set aside the order of dismissal passed against the workman on the ground that the penalty was disproportionate. Since in the meantime the workman had attained the age of superannuation on 3rd April 1999, the Labour Court directed the employer to pay 50% of the backwages to the workman from 19th September 1980 until 3rd April 1999.

3. Both the employer as well as the workman have filed Petitioners under Articles 226 and 227 of the Constitution. For convenience of reference and since there are two petition, it would be appropriate to refer to the parties as the employer and the workman. The workman has impugned in his petition the Part-I award dated 22nd September 1998 and the final award dated 14th February 2002 in so far as it denies 50% of the backwages to him. The employer has challenged the final award dated 14th February 2002 in so far as the Labour Court set aside the punishment of dismissal and reacted the employer to pay 50% of the backwages.

4. The workman was in the employment of the Maharashtra State Road Transport Corporation as a conductor. On 19th August 1980, a chargesheet was issued to the workman by the Competent Officer in the Divisional Traffic Office of M.S.R.T.C. at Thane by which the workman was charged with having committed a breach of administrative circulars issued by the employer; for issuing used tickets to passengers and for a failure to maintain notes and documents properly. The allegation against the workman was that upon a scrutiny of way bills for the period 21st May 1980 to 21st July 1980, it had been found that certain tickets which had been issued on 7th June 1987 and 5th July 1987 respectively had been reissued on the following days and that an amount representing the value of the tickets had been misappropriated by the workman. Apart from the charge of having reissued tickets, the workman was charged of having obliterated 18 way bills in an objectionable manner and of having failed to make proper entries. The workman was also charged for having breached existing administrative orders in that he had retained with himself personal sums belonging to him while on duty.

5. The workman replied to the charges framed against him on 24th September 1980. A disciplinary enquiry was held in which the workman was represented by a defence representative. The charges against the workman were held to have been provided in the disciplinary proceedings. By an order dated 7th October 1980, the workman came to be dismissed from service. Against the order of the disciplinary authority, the workman preferred a Second Appeal. The Second Appellate Authority came to the conclusion that the charges against the workman of having over written the way bills and of being in possession of excess cash while on duty had been proved. The Second Appellate Authority held that the administrative orders which had been issued by the Corporation for the maintenance of way bills and for making correct entries thereon were with a view to ensure the protection of the revenues of the Corporation. Detailed instructions had been issued to conductors so as to regulate and control their functioning and so as to ensure that the amounts belonging to the Corporation were not misutilised. The Second Appellate Authority held that the charge against the Petitioner of having over written the official documents of the Corporation and of having carried out "backward changing of numbers" was fully proved. The relevant observations of the Second Appellate Authority are thus:

"In the present case, the charges of over-writing and backward changing of numbers are fully proved. Moreover this is done at the starting point and at the start of the duty. This conductor was posted at Dahanu Traffic Depot. He closes the way-bill on the previous day say at 39 number and C.W.A. is also closed at 39 number and then on the day's C.W.A. the same number is opened by the Issue Clerk and the tray is handed over to the Conductor. Procedure requires that the Conductor checks the opening numbers on the C.W.A. and checks the ticket numbers on the tray and if there is any disparity, he gets it corrected from the issue Clerk or if necessary reports the matter to the Controller of the A.T.I. on duty. There is a further procedure that the top numbers on the way-bill should be opened by Clerks and the Conductor should check the top number on the way bill and ensure that the numbers as reflected in the Column of the C.W.A. (opening numbers) and the ticket number on the tray are identical. The initial checking at the point when the tray is taken over is thus a triangular check and it is expected that the Conductor must start to sell all tickets by getting only one reference mark on the way bill and which must be the ticket number reflected on the C.W.A. as the opening number and also the one as the opening ticket number on the tray for that denomination. IF a Conductor, therefore, opens a earlier number such as 37, 38 whatever it may be on the way bill, it gives ground to raise a suspicion that he intended to re-issue the old tickets. When the Clerks avoid opening the numbers still more care is needed. Since tickets are related to cash as discussed earlier, if Conductors are permitted to open the numbers backward any type of fraud can be perpetuated. There is, therefore, a total prohibition on the Conductor doing so. The way bills on record prove that earlier numbers have been opened on the two way-bills and the entries are positively suspicious and moreover there are no sales on the forward journey of the bus that is the forward trip and thereby on the return journey, the old punched tickets would then automatically appear as valid tickets and properly punched tickets. On return trips and particularly return night out trips this mischief is done in many cases and tickets which are sold in the forward journey but which are intentionally punched as for the opposite direction are used by altering the entries on the way bill. The specific orders that the way bill entries shall not be tampered, shall not be over written and numbers will not be written backwards are, therefore, vital instructions which are absolutely necessary and the disobedience of which can be treated in a drastic manner. A Conductor who commits these irregularities whether intentionally or otherwise exposes himself to the extreme punishment of dismissal is what is told to these Conductors from the very beginning of their employment. In the circumstances, charges in respect of these matters are proved from the documentary evidence and the order of the Competent Authority will not suffer as either perverse or harsh."

6. The Appellate Authority however, held that the charge of having reissued tickets had not been proved. The Appellate Authority was conscious of the fact that it is difficult in all such cases for the management to prove sale of used tickets and it was hence that the management had prescribed a rigid procedure to be followed by conductors. In the present case, it was concluded that the charge of over writing and of interpolating the numbers in the way bill had been fully proved and this was adequate in order to sustain the dismissal of the workman. The charge of carrying excess personal cash was also held to have been proved. Though the conductor had been told not to carry such cash, he had continued to disobey orders though it was open to him to take necessary steps for the certification of the personal cash amount which was attached from his person.

7. In so far as the past record of the conductor was concerned, the Disciplinary Authority noted that he had been dismissed on two occasions and on previous occasions he had been given a chance in a first appeal which had been filed by him. In the circumstances, there were in the view of the authority, no extenuating circumstances. The penalty of dismissal came to be affirmed.

8. A reference to adjudication was made to the Labour Court under Section 10 of the Industrial Disputes Act, 1947. The Labour Court by its Part-I award dated 22nd September 1998 held that the enquiry was fair and proper and that there was nob reach of the principles of natural justice. The Secretary of the Union had defended the workman as his defence representatives; the workman had filed his reply to the chargesheet and had cross-examined the management witness. Before the Labour Court it was alleged that the workman had not been furnished with a proper opportunity by the Enquiry Officer. The Labour Court noted that there was no substance in the allegations. The contention that the workman had not been furnished inspection of the relevant documents was belied by the answers furnished by the workman in the cross-examination which shoed that the way bills had in fact been produced and shown to the workman. The Labour Court also noted that in the departmental enquiry, the workman also had admitted that he did not show the sale of tickets in the way bill but gave an explanation that this was due to oversight. In the circumstances, the Court concluded that there was no breach of the principles of natural justice. The Labour Court also came to the conclusion that the findings of the Enquiry Officer were not perverse.

9. Having held that the enquiry did not suffer from any infirmity and that the findings were not perverse, the Labour Court nevertheless arrived at the conclusion that the penalty of dismissal which was inflicted on the workman was disproportionate. Before the Labour Court, the default card of the workman was produced on the record. The Labour Court took notice of the fact that the workman had committed similar types of misconduct on eight occasions in the past in which he was punished. Surprisingly, however, the Labour Court held that the past record did not "appear to be bad". The Labour Court then held that the charge of the actual reissue of the tickets had not been proved against the workman and hence, it could not be held that there was any intention to misappropriate the revenue of the Corporation. At the most there was negligence on the part of the workman in performing his duties as conductor. In these circumstances, the penalty was held to be disproportionate. The employer was directed to pay 50% of the backwages from 19th September 1980 till 3rd April 1999.

10. Both the employer and the workman are before this Court under Articles 226 and 227 of the Constitution. On behalf of the workman, it has been contended that the finding in the Part-I award that the enquiry was fair and proper is erroneous and requires the interference of this Court under Article 227 of the Constitution. Learned Counsel urged that the enquiry was held by the Disciplinary Authority and in such a case, where the Disciplinary Authority is the same as the Enquiring authority, the necessary conclusion is that the disciplinary proceedings will stand vitiated on account of bias. Then it was urged that adequate opportunity to inspect the documents was not granted to the workman. On this ground, it was contended that the Labour Court ought to have granted full backwages to the workman.

11. In so far as the Petition filed by the employer is concerned, Learned Counsel appearing on behalf of the employer urged that ex-facie the reasons which have weighed with the Labour Court in setting aside the order of dismissal are extraneous to the proper exercise of jurisdiction under Section 11A of the Industrial Disputes Act, 1947. The Labour Court clearly failed to consider that even if the charge of the reissuance of tickets had been held not to be proved by the Second Appellate Authority, the other charges were serious enough in themselves to warrant the penalty of dismissal. The past record of the workman shows, as noted by the Second Appellate Authority, that he had in fact, been dismissed on previous occasions. The petitioner's default card showed that he was punished in the past on 8 occasions. Hence, there was no warrant for the Labour Court to hold that the record of the workman 'did not appear to be bad'. Counsel appearing on behalf of the employer also submitted that the grounds urged on behalf of the workman to challenge the Part-I award are untenable. There was no infirmity in the disciplinary proceedings and the findings which were arrived at by the Labour Court in this regard were correct.

12. In so far as the challenge to the Part-I award by the workman is concerned, a perusal of the judgment of the Labour Court would show that the submission which was urged was that the Disciplinary authority was acting in a multiple capacity and could not be an impartial Enquiring Officer. Now, as a matter of principle, there can be no objection in law to the Disciplinary Authority acting as an Enquiry Officer. In fact, the law is well settled that in a disciplinary enquiry, it is open to the Disciplinary Authority either to hold an enquiry by itself or to entrust the enquiry to an Enquiry Officer. When the enquiry is held and entrusted to an Enquiry Officer, the Enquiry Officer acts as a delegate of the Disciplinary Authority. The jurisdiction to convene and hold disciplinary proceedings is of the Disciplinary Authority. Therefore, for instance, it is well settled that even if an enquiring authority comes to the conclusion that the charges against the workman whose conduct is being enquired into are not proved, the disciplinary authority is not necessarily bound by that conclusion. In such a case, the Disciplinary authority is entitled to differ with the findings which have been arrived at by the Enquiry Officer and to proceed further in the matter after issuing to the workman a notice to show cause to the tentative reasons on which the Disciplinary Authority proposes to differ with the Enquiry Officer. Therefore, as a matter of principle, it is open to the Disciplinary Authority either to act as an Enquiry Officer by itself or, as is common, to entrust the enquiry to another officer. Besides, it does not appear from the record that there is any cogent or legitimate basis for the workman to contend that the disciplinary enquiry was vitiated on the ground of bias. Allegations of bias have to be substantiated. In the present case, and even before this Court, there is no basis whatsoever for contending that the enquiry was vitiated on the ground of bias.

13. The contention that there was a breach of the principles of natural justice on account of a failure on the part of the employer to produce the relevant documents (sic) has been adequately dealt with by the Labour Court. The Labour Court has noted that from the enquiry proceedings it was clear that the way bill was produced in the enquiry and was shown to the workman. This is evident from the answers furnished by the workman himself in the course of the enquiry. Above all, the workman admitted that he has not shown the tickets which were sold in the way bill but offered an explanation that this was due to over sight. In the circumstances, I am of the view that the challenge which has been urged to the Part-I award does not have any merit. Though it was faintly urged that in the present case, the Enquiring Officer had himself posed questions to the workman in the course of the enquiry, that by itself cannot constitute a breach of the principles of natural justice. In any event, that issue has been concluded by a judgment of a Learned Single Judge of this Court, Mr. Justice D.R. Dhanuka, in Pravin Ratilal Dudhara v. Municipal Corporation of Greater Bombay, 1996 1 CLR 59.

14. In so far as the writ petition filed by the employer is concerned, the position which emerges is that the Labour Court had come to the conclusion that the enquiry was fair and proper and that the findings of misconduct which have been arrived at were not perverse. The approach of the Labour Court in holding that the findings of the enquiry are not perverse cannot be faulted. The decision of the Second Appellate Authority which consisted of the Deputy General Manager (Appeals) and the Officer on Special Duty (Appeals) has been extracted earlier in the course of this judgment. The Second Appellate Authority considered the facts of the case and the relevant circumstances in a considerable degree of detail. The Second Appellate Authority has done so objectively because it came to the conclusion that one of the charges, the charge of re-issuance of old tickets, could not be proved for want of direct evidence. At the same time, the Second Appellate Authority took a strict view of the failure of the workman to comply with the administrative orders relating to the maintenance of way bills and in making way bill entries. The Appellate Authority noted in the course of its order as to how important it was for conductors to comply with the administrative directions because unless the way bills were properly maintained and entries were made correctly, it would only embolden the Conductors of the Corporation to act in a manner which was not consistent with the public revenue. In the present case, the Appellate Authority noted that the workman had been dismissed on two occasions in the past. As a Conductor with a long period of service, the workman ought to have known that it was his duty to comply with the instructions so as to ensure that there was no leakage of public revenue. The Labour Court in its final award dated 14th February 2002 noted that the default card which has been produced on behalf of the employer showed that the workman had been penalised on 8 occasions in the past. Despite this express finding, the Labour Court proceeded to observe that the past record of the workman 'did not appear to be bad'. This observation is, with great respect, perverse. Undoubtedly, the charge of the re-issuance of old tickets was held not to have been proved. The Labour Court held that at the most it could be said that the workman was negligent in his duties as a Conductor. That in my view was sufficient to sustain the penalty of dismissal. The Labour Court has completely ignored the circumstance that the Conductor of a public Transport Corporation is entrusted with a vital function relating to the issuance of tickets and the collection of fares. He is obliged to comply with the administrative directions which are issued by the Corporation to him scrupulously. A breach of the directions issued by the employer is liable to lead to a loss of the revenue which is legitimately due and owing to the Corporation. In such cases, direct evidence of the reissuance of tickets may not necessarily be forthcoming in all case. The Labour Court cannot, however, shut its eyes to reality and condone the conduct of a Conductor such as the workman in the present case who has been found wanting in the due discharge of his official duties. In the present case, there were eight occasions on which the workman was found to have breached his service obligations. In fact, he had been dismissed by the Appellate Authority on two prior occasions, but had been furnished with an opportunity for improvement. The contention of the Counsel for the workman that the failure on the part of the Conductor to make proper entries in the way bill is listed as a minor lapse in the schedule of offences will not carry the matter any further. This was not a case of an isolated lapse on the part of the Conductor. The past record of the Conductor showed that he was prone to such lapses in the past and had been actually dismissed from service on more than one occasion, but was restored to his position by the employer in the hope that he would improve. That hope was belied.

15. In the circumstances, in my view, the basis on which the Labour Court has in its final award dated 14th February 2002 held that the punishment of dismissal was disproportionate is fundamentally flawed and requires the interference of this Court under Article 227 of the Constitution. The entire approach of the Labour Court is misconceived. Once it was held that the disciplinary enquiry was fair and proper and that findings were not perverse, the penalty of dismissal could not have been interfered with in circumstances such as those in the present case. There has been a clear misappreciation of evidence in holding that the service record did not appear to be bad. Be that as it may, I am of the view that the reasons which weighed with the Labour Court in setting aside the penalty imposed in the disciplinary enquiry are unsustainable.

16. The petition filed by the employer (Writ Petition No. 1438 of 2003) accordingly succeeds Rule is made absolute and the award of the Labour Court dated 14th February 2002 in so far as it sets aside the penalty of dismissal and directs the employer to pay 50% of backwages to the workman is quashed and set aside.

17. The Petition filed by the workman (Writ Petition No. 3619 of 2003) shall, in the circumstances, stand dismissed.

18. There shall be no order as to costs.