Bombay High Court
Satyanarayan Prakash Pande vs Divisional Controller Msrtc ... on 22 August, 2016
Bench: R.V. Ghuge
WP/668/2016
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 668 OF 2016
Satyanarayan Prakash Pande,
Age 42 years, Occupation Nil,
R/o Plot No.30, Sant Narhari
Nagar, Old Wadjai Road,
Market Yard, Dhule. ..Petitioner
Versus
Divisional Controller,
MSRTC, Dhule Division,
Dhule. ig ..Respondent
...
Advocate for Petitioners : Shri Patil Sandesh R.
Advocate for Respondent : Shri Bagul D.S. a/w Shri Jain R.N.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: August 22, 2016
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition
is taken up for final disposal.
4. The petitioner is aggrieved by the following three orders:-
(a) The Part I judgment of the Labour Court dated
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16.7.2011, concluding that the enquiry was conducted in a fair
manner and the findings of the Enquiry Officer are not
perverse.
(b) The final judgment of the Labour Court dated
25.11.2011, by which, Complaint (ULP) No.8 of 2010 filed by
the petitioner challenging his dismissal from service dated
7.1.2010, has been dismissed.
(c)
The judgment of the Industrial Court dated 4.10.2013,
by which, Revision (ULP) No.4 of 2012 filed by the petitioner
has been dismissed.
5. I have heard Shri Patil, learned Advocate for the petitioner
and Shri Jain and Shri Bagul, learned Advocates for the respondents.
6. The petitioner joined as a Bus-Conductor with the respondent
MSRTC in 1997. He was dismissed from service for proved mis-
conducts in 2007. His first department appeal was partly allowed
and he was issued with a fresh appointment order. As such, his
dismissal was sustained.
7. On 5.2.2009, there was a surprise check of the Bus traveling
from Dhule to Amalner at Naval Nagar. There were 23 pass holding
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students and daily pass holders amongst about 50 to 55 passengers.
One lady passenger gave a statement to the checking squad that the
petitioner had received an amount of Rs.27/- and yet did not issue
any ticket. The other charge was that he had failed in reverse
punching the ticket, which is a practice in MSRTC. The third charge
was that the cash held by the petitioner suffered a short fall of
Rs.21/-.
8.
After conducting a disciplinary proceeding pursuant to the
charge sheet dated 2.6.2009, the petitioner was awarded the
punishment of dismissal from service dated 7.1.2010.
9. By the Part I judgment, the enquiry was sustained and by the
final judgment, the Complaint was dismissed. So was the revision
petition filed by the petitioner.
10. Shri Patil strenuously submits that the statement of a single
passenger is no evidence in the eyes of law. The said lady passenger
was not examined in the enquiry. Her statement recorded was not
proved through her evidence in the enquiry. As such, there was no
evidence at all before the enquiry officer, so as to conclude that the
petitioner was guilty of the charge of accepting money and not
issuing a ticket.
WP/668/2016
11. In so far as reverse punching is concerned, the petitioner had
stated before the enquiry officer that since his wife had suffered
burn injuries in December 2008, he was tensed up. He, therefore,
inadvertently failed in reverse punching of the tickets. The enquiry
officer has exonerated him of the said charge.
12. In so far as the charge of having less cash by Rs.21/- in his cash
box, is concerned, Shri Patil submits that shortage in cash does not
indicate any misconduct. In fact, it would prove that there was some
mis-calculation of the fare received and in turn it would indicate that
the lady passenger was not telling the truth since she wanted to
avoid being penalized for traveling ticket less. He, therefore, submits
that all the three impugned orders deserve to be quashed and set
aside and the petitioner deserves to be reinstated with continuity
and full backwages. In the alternative, he submits that the petitioner
is willing to accept the fresh appointment since he is the only earning
hand in the family
13. Learned Advocate for the respondent has defended the three
impugned orders. He submits that the past service record of the
petitioner is highly blemished and hence no interference is called
for.
14. I have considered the submissions of the learned Advocates.
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15. In so far as the second charge is concerned, the petitioner has
been exonerated. The third charge of having less cash by Rs.21/-,
though may not outright indicate a mis-conduct, the fact remains
that under the MSRTC Discipline and Appeal Rules, shortage in cash is
indicative of pilferage of money. So also, the statement of the lady
passenger cannot be easily brushed aside on the ground that she may
be lying in order to avoid being penalized for traveling ticket less.
16.
The Honourable Supreme Court in the matter of State Bank of
Patiala Versus S.K.Sharma [AIR 1996 SC 1669 = (1996) 3 SCC 364], has
concluded that an enquiry should not be interfered with merely on
account of procedural infirmities. Unless, substantive rights flowing
under the Rules are not violated, an enquiry should not be easily set
aside.
17. The issue of recording the statement of a passenger and not
examining the passenger in the departmental enquiry has been
considered by the Honourable Supreme Court in the matter of KSRTC
Vs. B.S.Hullikatti [AIR 2001 SC 930], and in the matter of Divisional
Controller, KSRTC Vs. A.T.Mane [(2005) 3 SCC 254],. The Apex Court
has ruled that merely because a passenger is not examined in the
enquiry, would not mean that the charge is not proved. It is held that
non-examination of the passenger would not affect the result of the
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enquiry.
18. In service jurisprudence, charges are held to be proved on the
basis of available evidence and on the preponderance of the
principles of probabilities. If the evidence available before the
enquiry officer would be indicative of the offence having been
committed, strict Rules of evidence under criminal jurisprudence are
not to be made applicable. As such, the statement of the lady
passenger in the instant case, in the light of settled law, would prove
that the misconduct alleged against the petitioner is likely to have
been committed.
19. On the principles of probabilities, the contention of Shri Patil
that the lady passenger may have made a false statement, could
have been considered, but for the fact that the petitioner has
developed a habit of committing such misconducts. After joining
duties, he was once punished for a similar misconduct. In 2007, he
was dismissed from service for a similar misconduct. The Corporation
showed leniency towards him and appointed him afresh. The
petitioner has committed the misconduct at issue within two years
from his reappointment. The blemished past service record would,
therefore, be indicative that the petitioner has developed a habit of
letting passengers travel ticket less He has been apprehended three
times and it cannot be ruled out that such instances may have
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frequently happened when the petitioner was not apprehended.
20. In so far as the proportionality of the punishment awarded to
the petitioner is concerned, the Honourable Supreme Court in the
matter of Janatha Bazar (South Kanara Central Co-operative Whole
Sale Stores Limited) Etc. Vs. The Secretary, Sahakari Noukarana
Sangha Etc. [(2000) 7 SCC 517], and the learned Division Bench of this
Court in P.R.Shele Vs. Union of India and others [2008 (2) Mh.L.J. 33],
has concluded that such instances of misappropriation are to be dealt
with, with an iron hand and the amount of misappropriation cannot
be a ground for showing sympathy towards an employee.
21. In the light of the above, I do not find that the impugned
orders could be termed as being perverse or erroneous. This petition
being devoid of merits is, therefore, dismissed. Rule is discharged.
( RAVINDRA V. GHUGE, J. )
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