The Divisonal Manager vs P. Madhavulu
2021 Latest Caselaw 4164 Tel

  THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                 AND
           THE HON'BLE SRI JUSTICE N. TUKARAMJI


           WRIT APPEAL Nos.1552 & 1623 of 2018

COMMON JUDGMENT:       (Per the Hon'ble the Chief Justice Satish Chandra Sharma)




     W.A.No.1552 of 2018 is arising out of order dated

07.09.2018 passed in W.P.No.19105 of 2008.

     The      facts   of     the        case           reveal        that          the

respondent/employee before this Court was appointed as a

Conductor in 1986 and while discharging his duties on

21.07.2005, he was subjected to surprise check.

Undisputedly, he was found indulged in cash and ticket

irregularities (misappropriation of Government money). A

charge sheet was issued and thereafter a detailed enquiry

took place in the matter and finally an order was passed on

24.05.2006 inflicting punishment of removal.

The respondent/employee did prefer an appeal and the

same was rejected on 27.09.2006 and thereafter, the

employee preferred a petition under Section 2A(2) of the

Industrial Disputes Act, 1947, and the same was registered

as I.D.No.81 of 2006. The Labour Court, after minutely

scanning the entire evidence, arrived at a conclusion that the

workman is not entitled for any relief specially keeping in view

the misappropriation and has dismissed the petition preferred

by the workman under Section 2A(2) of the Act of 1947 by

award dated 10.07.2007 declining to interfere with the

punishment order. Thereafter, writ petition was preferred

and the learned Single Judge in paras 6 and 7 has held as

under:

"6. This Court having considered the submissions made by the parties and the nature of the charges levelled against the petitioner, is of the considered view that the punishment of removal imposed by the respondent- Corporation is very disproportionate and the Labour Court ought to have examined the case of the petitioner taking into consideration the fact that this is the only incident in the entire career of the petitioner, and it ought to have interfered with the punishment of removal by applying the proportionality theory and at least, the Labour Court ought to have directed the respondent-Corporation to reinstate the petitioner into service as fresh conductor. Since the punishment of removal is shockingly disproportionate to the charges leveled against the petitioner, this Court feels that ends of justice would be met if the respondent- Corporation is directed to reinstate the petitioner into service as fresh conductor.

7. Accordingly, the Writ Petition is disposed of directing the respondent-Corporation to reinstate the petitioner into service as fresh conductor, subject to medical fitness, without continuity of service, without back wages and other attendant benefits. No costs. Consequently, miscellaneous petitions pending, if any, shall stand closed."

The learned Single Judge, even though it was a case of

misappropriation, has held that the punishment is shockingly

disproportionate to the guilt of the employee.

Learned counsel for the appellants has argued before

this Court that in case of misappropriation there cannot be

other punishment except dismissal or removal and to support

his contention, he has placed reliance upon the judgments

delivered in the case of U.P. State Road Transport

Corporation vs. Suresh Chand Sharma1 and APSRTC,

(2010) 6 SCC 555

represented by its Managing Director and others vs.

Labour Court-II, Hyderabad and another2.

This Court has carefully gone through the aforesaid

judgments. Undisputedly, the present case is relating to cash

and ticket irregularities. The enquiry was held as per the

statutory provisions governing the field and the Labour Court

did not find any defect in the enquiry and also declined to

interfere with the order of punishment while delivering the

award dated 10.07.2007. The learned Single Judge by merely

observing that the punishment is disproportionately shocking

to the guilt of the delinquent has set aside the order of

removal.

The Apex Court in U.P. State Road Transport

Corporation (supra) in paragraphs 14 to 17, 20, 23 and 24

has held as under:

"14. The High Court dealt with the matter in a most cryptic manner. Relevant/main part of the judgment of the High Court reads as under:

"5.....The Inspector in the cross-examination has also stated on oath that the cash was not checked. The learned counsel for the petitioner further submitted that when the bus was checked, ten passengers were boarded on the bus and they were drunk and they were also denying taking the tickets. The learned Tribunal has not considered this fact at all. I find force in the contention of the learned counsel for the petitioner. The learned Tribunal ought to have considered this fact that neither the passengers were examined, nor the cash was checked. Therefore, the order of the learned Tribunal cannot be sustained in the eye of law." (Emphasis added)

15. The High Court has decided the Writ Petition only on the ground that the passengers found without tickets had not been examined and the cash with the employee was (sic not) checked. No other reasoning has been given whatsoever by the Court.

16. In State of Haryana Vs. Rattan Singh ((1977) 2 SCC 491: AIR 1977 SC 1512), this Court has categorically held that in a domestic enquiry, complicated principles and procedure laid down in the Code of Civil

W.P.No.13683 of 2000, dt. 29.10.2012

Procedure, 1908 and the Indian Evidence Act, 1872 do not apply. The only right of a delinquent employee is that he must be informed as to what are the charges against him and he must be given full opportunity to defend himself on the said charges. However, the Court rejected the contention that enquiry report stood vitiated for not recording the statements of the passengers who were found travelling without ticket. The Court held as under:

"We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the re-evaluation of the evidence on the strength of co- conductor's testimony is a matter not for the court but for the Administrative Tribunal. In conclusion, we do not think courts below were right in overturning the finding of the domestic tribunal."

17. In view of the above, the reasoning so given by the High Court cannot be sustained in the eye of law. More so, the High Court is under an obligation to give not only the reasons but cogent reasons while reversing the findings of fact recorded by a domestic tribunal. In case the judgment and order of the High Court is found not duly supported by reasons, the judgment itself stands vitiated. (Vide State of Maharashtra Vs. Vithal Rao Pritirao Chawan, ((1981) 4 SCC 129 : AIR 1982 SC 1215); State of U.P. Vs. Battan (2001) 10 SCC 607); Raj Kishore Jha Vs. State of Bihar ((2003) 11 SCC 519 : AIR 2003 SC 4664); and State of Orissa Vs. Dhaniram Luhar ((2004) 5 SCC 568 : AIR 2004 SC 1794).

20. Therefore, the law on the issue can be summarized to the effect that, while deciding the case, court is under an obligation to record reasons, however, brief the same may be, as it is a requirement of principles of natural justice. Non-observance of the said principle would vitiate the judicial order. Thus, in view of the above, the judgment and

23. In N.E.K.R.T.C. Vs. H. Amaresh, ((2006) 6 SCC 187 : AIR 2006 SC 2730) and U.P.S.R.T.C. Vs. Vinod Kumar ((2008) 1 SCC 115), this Court held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption/misappropriation, the only punishment is dismissal.

24. Thus, in view of the above, the contention raised on behalf of the employee that punishment of dismissal from service was disproportionate to the proved delinquency of the employee, is not worth acceptance."

The Apex Court in the aforesaid case has categorically

held that for embezzlement dismissal is certainly a justified

punishment and therefore, in the light of the aforesaid, the

order passed by the learned Single Judge deserves to be set

aside. Not only this, while setting aside the order of removal,

the learned Single Judge has not assigned any cogent reasons

while reversing the findings of fact recorded by a domestic

Tribunal. Once the enquiry was ordered, the entire evidence

was scanned by the Labour Court and as it was a case of

misappropriation, the punishment could not have been

interfered with on the ground that it is disproportionate to the

guilt of the delinquent/employee. A similar view has been

taken by a Division Bench of this Court in the case of

APSRTC rep., by its Managing Director and others (supra).

In the light of the aforesaid, as the present case relates

to embezzlement (cash and ticket irregularities), the order

passed by the learned Single Judge dated 07.09.2018 is set

aside and the award passed by the Labour Court is upheld.

Learned counsel appearing for the respondent/employee

has argued before this Court that in similar facts and

circumstances of the case the order of removal was subjected

to judicial scrutiny and the learned Single Judge has set

aside the order holding that the punishment is

disproportionate to the guilt of the delinquent/employee and

the judgements passed in some of the cases have been

implemented by the APSRTC. No specific details have been

brought to the notice of this Court.

In the considered opinion of this Court, on the aforesaid

ground, no relief can be granted to the respondent/employee

on the ground of negative equality. If the employer has opted

not to assail the order in a particular case that cannot be a

ground to grant relief to the respondent/employee and once

he has been held to be guilty of misappropriation, the

punishment of removal awarded could not have been

interfered in the manner and method, it has been done by the

learned Single Judge, especially when there was no

perversity/illegality in the departmental enquiry or in the

award passed by the learned Single Judge.

Resultantly, the writ appeal is allowed and the order

passed by the learned Single Judge is set aside.

In W.A.No.1623 of 2018 also as the learned Single

Judge has disposed of the writ petition i.e., W.P.No.4619 of

2009 on similar grounds, the writ appeal is also allowed and

the order passed by the learned Single Judge is also set aside.

Miscellaneous petitions, if any, shall stand closed.

There shall be no order as to costs.

__________________________________ SATISH CHANDRA SHARMA, CJ

______________________________ N. TUKARAMJI, J 07.12.2021 ES