Ashok Rambhaji Tupe vs The Msrtc Ahmednagar And Another
2016 Latest Caselaw 1320 Bom

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              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                          BENCH AT AURANGABAD




                                                        
                             WRIT PETITION NO.4086 OF 2016

    Ashok Rambhaji Tupe,                                             PETITIONER
    Age-36 years, Occu-Service,




                                                       
    R/o Takli Bhan, Taluka Shrirampur,
    Dist. Ahmednagar
    VERSUS 




                                             
    1. The Maharashtra State Road Transport                          RESPONDENTS 

Corporation, Ahmednagar Division, Sarjepura, Kotla, Ahmednagar.

2. The Divisional Traffic Superintendent, Maharashtra State Road Transport

Corporation, Ahmednagar Division, Sarjepura, Kotla, Ahmednagar

Mr.P.V.Barde, Advocate for the petitioner.

Mr.B.S.Deshmukh, Advocate for the respondents.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 07/04/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioner is aggrieved by the order dated 11/01/2016

delivered by the Labour Court, by which the application Exhibit U-2,

seeking interim relief u/s. 30(2) in Complaint (ULP) no.37/2015, has

been rejected. The petitioner is also aggrieved by the judgment dated

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30/03/2016 delivered by the Industrial Court, by which the Revision

(ULP) No.6/2016 filed by the petitioner, has been dismissed.

3. The petitioner claims to have joined duties as a Bus Conductor

with the Respondent/Corporation on 20/01/2011. On 02/01/2013,

the petitioner was on duty on the bus moving from Kopargaon to

Somthan. There were 70 students holding bus passes and 14

passengers travelling in the said bus. One lady boarded the bus at

Rahuri and was travelling to Pandhariche Pool. Due to rush in the

bus, the petitioner could not issue a travelling ticket.

4. That the bus was subjected to a surprise check and it was

noticed that the lady was travelling ticketless. The lady passenger

stated to the Reporter in the Flying Squad that though she had paid

the fare, she was not issued a ticket. This statement is false and is

unbelievable.

5. It is further submitted that a charge sheet dated 24/01/2013

was issued to the petitioner. He submitted his reply dated

30/01/2013 claiming that there were 90 to 95 passengers in the bus.

By the time the bus would reach the place Pangeli, the pass holding

students occupying the bus would be between 110 to 125. The charge

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of accepting fare and not issuing a ticket was denied. If the fare of

the ticket Rs.32/- had been accepted, the excess amount should have

been Rs.32/- and not a shortfall of Rs.18/-.

6. The charge sheet is vague and ambiguous is the contention.

After the enquiry was completed, the petitioner received the second

show cause notice dated 03/12/2015 on 07/12/2015 and he replied

to the same on 11/02/2015. It was on 12/02/2015 that he preferred

Complaint (ULP) No.37/2015 before the Labour Court and was

protected against disciplinary action. The said protection was vacated

by the impugned order dated 11/01/2016 when the application for

interim relief was rejected. However, the protection was continued till

the Industrial Court dismissed the revision petition filed by the

petitioner and the said protection has been continued by the

Industrial Court till 10/04/2016.

7. It is strenuously contended that there are several discrepancies

in the report of the Enquiry Officer. The charge sheet states that a

shortfall of Rs. 18/- was noticed. The ticket issued to the lady

passenger was for Rs.32/-. If the amount was accepted and the

ticket was not issued, there should have been an excess amount with

the petitioner. The report submitted by the reporter also contains

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mistakes and the Enquiry Officer has admitted that there were

mistakes in the report. Yet, the Enquiry Officer has held the

petitioner guilty of the charge levelled upon him.

8. Mr.Barde further submits that when the charge sheet is vague

and when the report submitted by the reporter contains errors, the

Labour Court should have interfered with the proposed punishment.

The passenger Smt.Reshma Pramod Meher has filed an affidavit in

the Labour Court contending that she had not paid any ticket fare to

the petitioner who had failed to issue her a travelling ticket. All these

aspects should have been considered by the Labour Court as well as

the Industrial Court. The past record of the petitioner is clean and

unblemished. He, therefore, prays for a protection to the services of

the petitioner till the decision of his complaint before the Labour

Court, Ahmednagar.

9. Mr.Deshmukh, learned Advocate for the respondent/

Corporation submits that the misconduct at issue has been

committed by the petitioner within 2 years of his joining duties. After

the present misconduct, he was imposed with a punishment of fine of

Rs.200/- for issuing a manual ticket instead of an electronic ticket.

On 25/06/2013, he was punished with fine of Rs.200/- for having

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not returned the excess money to a passenger. He submits that from

the date of joining, the petitioner is involved in not less than 3

incidents amounting to misconducts. If this misconduct of the

petitioner, which is visible in the first 2 years of his employment, goes

unpunished, he has another more than 25 years of service and would

continue to commit such misconducts.

10.

He submits that the issue before the Labour Court was rightly

considered by it as well as by the Industrial Court and hence interim

relief has been refused by both the Courts. He, therefore, prays for

the dismissal of this petition.

11. I have considered the submissions of the learned Advocates.

12. It is trite law that 2 years of clean service is not an indicative

factor of an unblemished service of an employee. Over a

considerable period of service rendered without any blemishes would

indicate the discipline and honest attitude of employee. (Read Bajaj

Auto LImited Vs. Kalidas Deoram Patil, 1999 (II) CLR 1108)

13. The report of the reporter as is analysed in the enquiry report

indicates that the lady passenger has specifically stated to the

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Inspecting Squad that she has paid the fare for the ticket and the

petitioner has not issued her a ticket. The Hon'ble Supreme Court in

the matter of KSRTC Vs. B.S.Hullikatti, AIR 2001 SC 930 and KSRTC

Vs. A.T.Mane, 2005(3) SCC 254 has held that non-examination of the

passengers in the enquiry does not in any way vitiate the enquiry. It

is not possible to examine passengers in every case and hence the

non-examination of the passengers would not render the findings of

the Enquiry Officer perverse.

14. The petitioner has placed reliance upon the judgment of this

Court in the matter of Mahadeo Atmaramji Nage Vs. MSRTC, 2009(2)

BCR 824. Mr.Barde points out from the said judgment that this

Court has appreciated that none of the passengers had stated to the

Squad that they had paid fare of the tickets and were not issued

travelling tickets. They have also not stated that they demanded the

tickets and the Conductor did not issue them such tickets. I do not

find that this judgment would be of any assistance to the petitioner

since the Lady Passenger has specifically stated to the Flying Squad

that she had paid the money to the petitioner who had failed to issue

her a ticket. This statement of the passenger negates the statement

of the petitioner that there was a rush in the bus and he could not

issue a ticket to the said lady passenger though he had every

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intention to reach her for collecting the fare and issuing a ticket.

15. It cannot be ignored that the law laid down by this Court in the

matter of Maharashtra State Cooperative Cotton Growers Marketing

Federation Ltd., and another Vs. Vasant Ambadas Deshpande, [2014

I CLR 878 = 2014(3) Mh.L.J. 339] that extraneous evidence is not to

be considered while assessing whether the enquiry could be termed

as being vitiated and whether the findings of the Enquiry Officer are

perverse. The petitioner acquired an affidavit from the said lady

passenger and produced the same before the Labour Court to

support his contention that she had not paid any money to the

petitioner. In my view, this affidavit of the concerned passenger

would amount to an extraneous piece of evidence and will have to be

ignored.

16. It is stated by the learned Advocate for the respondents that

earlier, the petitioner has been fined for two misconducts. Firstly for

issuing a manual ticket instead of an electronic ticket and secondly

for not returning the excess amount to a passenger.

17. The Hon'ble Apex Court in the matter of Hindustan Lever V/s

Ashok Vishnu Kate, (1995) 6 SCC 326 has struck a note of caution in

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paragraph Nos. 53 and 54 which read as under :-

"53. Reference made in paragraph VI to the Bombay High Court's judgments also cannot be of any avail as they were based on the view which was accepted by the learned Single

Judge of the High Court of Bombay at Nagpur which has rightly been overturned by the Division Bench of the Bombay High Court in the judgment under appeal on a correct interpretation of

the relevant provisions of the Act. Therefore, the earlier view taken by the learned Single Judges of the Bombay High Court

cannot be said to be well- sustained. For all these reasons, the appellant has made out no case for our interference in this

appeal.

54. Before parting with this case, however, we must strike a note of caution, as has been done by the Division Bench of the

Bombay High Court. It could not be gainsaid that the employers

have a right to take disciplinary actions and to hold domestic enquiries against their erring employees. But for doing so, the standing orders governing the field have to be followed by such

employers. These standing orders give sufficient protection to the concerned employees against whom such departmental enquiries are proceeded with. If such departmental proceedings

initiated by serving of chargesheets are brought in challenge at different stages of such proceedings by the concerned employees invoking the relevant clauses of Item 1 of Schedule IV before the final orders of discharge or dismissal are passed, the Labour Court dealing with such complaint should not lightly interfere with such pending domestic enquiries against the

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concerned complainants. The Labour Court concerned should meticulously scan the allegations in the complaint and if

necessary, get the necessary investigation made in the light of such complaint and only when a very strong prime facie case is made out by the complainant appropriate interim orders

intercepting such domestic enquiries in exercise of powers under Section 30(2) can be passed by the Labour Courts. Such orders should not be passed for mere askance by the Labour Courts.

Otherwise, the very purpose of holding domestic enquiries as

per the standing orders would get frustrated."

18. In the light of the above, I do not find that the Labour Court or

the Industrial Court have committed any error in refusing interim

relief to the petitioner. The impugned orders are neither perverse nor

erroneous and cannot be interfered with only because a different view

could be taken. Nevertheless, in the event the petitioner succeeds

after his complaint is decided on its merits, he would stand to gain

the service benefits as are available to a litigant succeeding in

litigation.

19. This petition, being devoid of merit, is dismissed. Rule is

discharged.

20. At this juncture, the learned Advocate for the petitioner prays

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for continuation of the protection granted earlier. Learned Advocate

for the respondent has opposed the same on the ground that charges

of misappropriation have been levelled against the petitioner.

21. The second show cause notice is dated 03/12/2015 and

pertains to the charge of misappropriation. It is trite law that acts of

misappropriation are to be dealt with, with an iron hand As

observed above, the petitioner would be entitled for service benefits in

the event he succeeds in proving unfair labour practices against the

respondents. So also, considering the caution sounded by the

Hon'ble Apex Court in the Hindustan Lever judgment (supra), the

request made by the petitioner for protection, is rejected.

( RAVINDRA V. GHUGE, J.)

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