Madras High Court
V.Muthupandi vs Tamil Nadu State Transport ... on 9 April, 2021
W.A(MD)No.1098 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 09.04.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
AND
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.A(MD)No.1098 of 2012
V.Muthupandi .. Appellant
Vs.
1.Tamil Nadu State Transport Corporation,
(Madurai Division-I) Ltd.,
Bye-pass Road,
Madurai – 625 010.
2.The Presiding Officer,
Labour Court,
Madurai.
.. Respondents
PRAYER: Writ Appeal is filed under Clause 15 of Letters Patent, to set aside the
order passed in W.P.No.5163 of 2011 dated 20.09.2012.
For Appellant : Mr.T.A.Ebenezer
For Respondents : Mr.J.Senthilkumariah (for R1)
R-2 Labour Court
1/15
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W.A(MD)No.1098 of 2012
JUDGMENT
(Judgment of the Court was made by K.KALYANASUNDARAM, J)
This intra-court appeal has been preferred by the workman assailing the
order of the Writ Court, dated 20.09.2012, made in W.P.No.5163 of 2011,
whereby, the order of the Labour Court passed in I.D.No.39 of 2003 was set aside
and the order of the competent authority terminating the appellant was restored.
2.The appellant was appointed as 'Conductor' in the respondent Transport
Corporation on 18.08.1991. When he was on duty on 27.04.2003 in the bus
bearing registration No.TN-58-N-0008, which was plying between Madapuram
and Periyar Bus Stand, a surprise check was conducted by the Checking Inspector
at 04.40 p.m. On verification, it was found that the appellant had issued old
tickets of Rs.8.50 denomination to 14 passengers and 4 tickets of Rs.7.50 to 4
passengers and thereby, he misappropriated Rs.149/-. In this regard, a charge
memo was issued and a departmental enquiry was held and the enquiry officer
found the charges were proved. The competent authority agreeing with the
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finding of the enquiry officer terminated the appellant from service vide order
dated 30.06.2003.
3.Aggrieved over the order of termination, the appellant raised an industrial
dispute seeking the relief of reinstatement with continuity of service and full
back-wages. The Labour Court vide order, dated 08.11.2010, set aside the order
of termination of the respondent, dated 30.06.2003, and ordered reinstatement of
the workman into service with continuity of service, however, without back-
wages and other benefits. The first respondent Transport Corporation questioned
the order of the Labour Court in W.P.No.5163 of 2011. The learned Single Judge
having found that the finding of the Labour Court was perverse and against law,
quashed the award of the Labour Court. Challenging the same, the present appeal
has been filed.
4.The learned counsel for the appellant Mr.T.A.Ebenezer would argue that
the appellant herein has rendered unblemished service for 13 years as Conductor
in the respondent Corporation, while so, had wrongly punched the tickets as
“down” instead of “up”. So, the charge of misappropriation of the fund of the
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W.A(MD)No.1098 of 2012
Corporation is unsustainable and it has not been proved. It is also contended that
for the acceptable negligence, the punishment of dismissal would be
disproportionate. It is the submission of the learned counsel for the appellant that
the Labour Court has rightly ordered reinstatement of the appellant into service
and no ground was made out before the Writ Court to interfere with the order of
the Labour Court.
5.Per contra, the learned counsel appearing for the respondents Mr.J.Senthil
Kumariah made submissions in support of the order of the learned Single Judge.
According to the learned Advocate, the Labour Court went into the enquiry
proceedings when it was not required and set aside the order of termination on
flimsy grounds that the Management failed to produce the original documents;
and fair enquiry was not conducted and the same was rightly set aside by the
Single Judge.
6.Heard the submission of the learned counsel appearing for the parties and
perused the materials available on record.
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7.In the instant case, it is not in dispute that the appellant herein was
appointed as “Conductor” in the respondent Transport Corporation in the year
1991 and when he was on duty on 27.04.2003 at about 04.40 p.m, Checking
Inspector had conducted surprise check and found that the appellant had issued
old tickets, which were issued during the earlier trip at 02.25 p.m. A charge
memo, in this regard, was issued as per the Standing Order No.16(5). In the
departmental enquiry, it was held that the charges were proved against the
appellant. Based on the finding of the enquiry officer, the appellant was
terminated from service on 30.06.2003 and the same was challenged before the
Labour Court.
8.The stand of the appellant before the Labour Court was that the Standing
Order No.16(5) deals with the theft, dishonesty relating to corporation business
and it does not cover the offence of misappropriation. It is his further case that he
has wrongly punched the tickets as “down” instead of “up”; he had no intention to
misappropriate the funds and the act of the appellant was not wilful and it was out
of mistake, which occurred due to over work. The Labour Court held that the
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W.A(MD)No.1098 of 2012
charge of misappropriation covers the Standing Order No.16(5) and hence, the
charge was maintainable. The said finding of the Labour Court remains
unchallenged by the appellant.
9.It is required to be pointed out that the only issue arose for consideration
before the Labour Court was whether the punishment awarded to the workman
was disproportionate to the proved charges. In the present case, it was the case of
the workman that in the enquiry proceeding, fair opportunity was not provided to
him. In other words, the enquiry proceeding was not questioned by the workman
before the Labour Court and hence, no need arose for the Management to again
prove the charges in the I.D proceedings. However, the Labour Court set aside
the order of termination mainly on the ground that the original documents have
not been filed and only Xerox copies were placed on record. On perusal of the
order of the Labour Court, it is also seen that no finding has been recorded as to
whether the punishment of termination was disproportionate.
10.The learned single Judge taking note of the above mentioned facts held
that there was no necessity for the Management to prove the charges once again
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since the appellant/workman did not challenge either the enquiry or the finding of
guilt. So, the very approach of the Labour Court was found fault with by the
learned Single Judge eventually arrived at a conclusion that the entire finding is
totally perverse and not sustainable in law. The Judgment of the Hon'ble Apex
Court in T.N.C.S Corporation Limited and others vs. K.Meera Bai
(2006(2)SCC 225) was followed by the Writ Court to confirm the order of
termination, wherein, the Hon'ble Supreme Court held that when 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 thereby, the order of dismissal from
service was held not to be disproportionate.
11.We may also refer to the following observation made by the Apex Court
in Diwan Singh vs. L.I.C and others reported in (2015)2 SCC 341 while
considering a similar question:-
“7.We have given thoughtful consideration to the above
argument advanced on behalf of the appellant. The explanation
put forth does not appear to be convincing, as the cashier
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W.A(MD)No.1098 of 2012
would not have issued a receipt without counting the cash at
the counter. Secondly, had the act on the part of the appellant
been bonafide, he would not have made forged entry of Rs.
533/- in the carbon copy of ledger sheet on 13.8.1990 between
entry Nos. 12 and 13. As such, the finding of the enquiry
officer holding the appellant guilty, in our opinion, cannot be
said to be against the evidence on record.
8.As far as argument relating to quantum of punishment,
as modified by the High Court, which results in consequential
forfeiture of pensionary benefits in view of Rule 23, quoted
above, is concerned, we do not find the punishment to be harsh
or disproportionate to the guilt, in view of the nature of the
charge of which the appellant is found guilty in the present
case. Time and again, this Court has consistently held that in
such matters no sympathy should be shown by the Courts.
9.In N.E.K.R.T.C v. M. Amaresh [(2006)6 SCC 187], this
Court, in para 18 of the judgment has expressed the views on
this point as under:
"18.In the instant case, the misappropriation of
the funds by the delinquent employee was only Rs
360.95. This Court has considered the punishment
that may be awarded to the delinquent employees who
misappropriated the funds of the Corporation and the
factors to be considered. This Court in a catena of
judgments held that the loss of confidence is the
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W.A(MD)No.1098 of 2012
primary factor and not the amount of money
misappropriated and that the sympathy or generosity
cannot be a factor which is impermissible in law.
When an employee is found guilty of pilferage or of
misappropriating the Corporation's funds, there is
nothing wrong in the Corporation losing confidence
or faith in such an employee and awarding
punishment of dismissal. In such cases, there is no
place for generosity or misplaced sympathy on the
part of the judicial forums and interfering therefore
with the quantum of punishment.".
10.In Karnataka SRTC v. A.T. Mane [(2005)3 SCC 254]
in which unaccounted amount was only Rs.93/- this Court
expressed its opinion in para 12 as under:
"12.Coming to the question of quantum of
punishment, one should bear in mind the fact that it is
not the amount of money misappropriated that
becomes a primary factor for awarding punishment;
on the contrary, it is the loss of confidence which is
the primary factor to be taken into consideration. In
our opinion, when a person is found guilty of
misappropriating the corporation's funds, there is
nothing wrong in the corporation losing confidence
or faith in such a person and awarding a punishment
of dismissal".
11.In Niranjan Hemchandra Sashittal and another v. State
of Maharashtra [(2013)4 SCC 642], this Court has made
following observations in paragraph 25 of the judgment: -
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"25..... In the present day scenario, corruption
has been treated to have the potentiality of corroding
the marrows of the economy. There are cases where
the amount is small, and in certain cases, it is
extremely high. The gravity of the offence in such a
case, in our considered opinion, is not to be adjudged
on the bedrock of the quantum of bribe. An attitude to
abuse the official position to extend favour in lieu of
benefit is a crime against the collective and an
anathema to the basic tenets of democracy, for it
erodes the faith of the people in the system. It creates
an incurable concavity in the Rule of Law."
12.In Rajasthan SRTC v. Bajrang Lal [(2014)4 SCC
693], this Court, following the case of Municipal Committee,
Bahadurgarh v. Krishnan Behari and others [(1996)2 SCC 714],
has opined that in cases involving corruption there cannot be
any other punishment than dismissal. It has been further held
that any sympathy shown in such cases is totally uncalled for
and opposed to public interest. The amount misappropriated
may be small or large; it is the act of misappropriation that is
relevant. In said case (Rajasthan SRTC), the
respondent/employee was awarded punishment of removal
from service. In the present case it is compulsory retirement.
Learned counsel for respondents submitted that on earlier
occasion, appellant was awarded minor punishment, for his
misconduct, regarding defalcation of stamps. And now he is
found guilty for the second time.
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W.A(MD)No.1098 of 2012
13.Therefore, in the above circumstances in view of the
law laid down by this Court, as above, we are not inclined to
interfere with the impugned order passed by the High Court.
Accordingly, the appeal is dismissed with no order as to costs.”
12.In the latest decision, the Division Bench of Karnataka High Court in
the case of D.Gandhi vs. Central Bank of India (W.A.No.3129 of 2018 dated
12.11.2020) (S.RES) following the dictum of the Hon'ble Supreme Court in the
case of Diwan Singh (supra) has held as follows:-
“7. After evaluating entire evidence relied upon by the
management, disciplinary authority has arrived at a conclusion
that these charges namely, charges 1 to 3 had been proved. On
account of charges 1 to 3 having been proved the punishment of
removal/dismissal from services under Regulation 4(i) and (j) of
Central Bank of India Officer Employees' (Conduct)
Regulations, 1976, came to be passed. Hon'ble Apex Court
in DIWAN SINGH v. L.I.C. AND OTHERS reported in (2015) 2
SCC 341 referred to herein supra after referring to catena of
judgments has held that any sympathy in such cases is totally
uncalled for. It has also been held that if an employee is found
guilty of misappropriation of funds of the bank, it would not be
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W.A(MD)No.1098 of 2012
inappropriate for the disciplinary authority to remove such
employee from service, inasmuch as, employee would have lost
the confidence of the employer or faith, which had been reposed
in him as he would be discharging the duties as custodian of the
bank or custodian of the public money and if generosity or
sympathy were to creep in, it would definitely be a misplaced
sympathy and if the punishment is sought to be reduced by this
court it would amount to granting a premium to a person who
has been held guilty of misappropriation and thereby it would
erode the confidence reposed by the public in employer like the
bank in question.
8. A contention with regard to punishment being
disproportionate to gravity of offence having been raised in this
appeal, we called upon Sri.Pradeep S. Sawkar, learned counsel
appearing for respondent-bank to respond as to whether on
account of punishment of removal/dismissal from service having
been passed against the petitioner as to whether other
punishments also imposed would affect the retrial or terminal
benefits of the delinquent employee. He has made a categorical
statement before this court that on account of substantial
punishment of removal having been passed, petitioner would be
entitled to all retirement benefits to which he is entitled under
law without reference to other punishments imposed like,
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reduction of pay by 2 stages and the like. His statement and
submission is placed on record. In the light of aforesaid
discussion, we do not find any good ground to entertain this
appeal and subject to observations made hereinabove, appeal
stands dismissed by affirming the order dated 17.07.2018 passed
in W.P.No.27944/2019.
13.In the light of the aforementioned settled legal proposition and the facts
of this case, we find no merit in the appeal warranting interference of this Court.
In such view of the matter, this writ appeal fails and the same stands dismissed.
However, there is no order as to cost.
[M.K.K.S.,J.] [B.P.,J.]
09.04.2021
Index : Yes / No
Internet : Yes / No
skn
In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the order
that is presented is the correct
copy, shall be the responsibility of
the advocate / litigant concerned.
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W.A(MD)No.1098 of 2012
To
1.Tamil Nadu State Transport Corporation,
(Madurai Division-I) Ltd.,
Bye-pass Road,
Madurai – 625 010.
2.The Presiding Officer,
Labour Court,
Madurai.
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W.A(MD)No.1098 of 2012
K.KALYANASUNDARAM, J.
and
B.PUGALENDHI, J
skn
JUDGMENT MADE IN
W.A(MD)No.1098 of 2012
09.04.2021
https://www.mhc.tn.gov.in/judis/
