Labour Law Reporter

2023 LLR 308
KARNATAKA HIGH COURT
Hon'ble Mr. C.M. Poonacha, J.
WP No. 10252/2019 (L-KSRTC), Dt/– 13-1-2023

Syed Hafeez
vs.
The Divisional Controller, K.S.R.T.C.

A. DISMISSAL from service of a bus conductor – Who possessed cash of Rs. 359 without satisfactory explanation to the checking staff – Article of charge issued – In explanation by the conductor stated that the cash belonged to passengers who forgot to collect change – Explanation found unsatisfactory – Enquiry conducted – Conductor raised an industrial dispute asking for reinstatement for full back wages before Labour Court – It was submitted that enroute and sum of Rs. 359 excess was found in his possession – Major punishment of dismissal was awarded – Petition filed challenging the award – High Court was to consider “whether the award passed by the Labour Court is liable to be interfered with ?” – A plea on behalf of the petitioner has been that two passengers boarded the bus at Hospet and purchase two tickets of Rs. 25 each – They paid Rs. 500 – Petitioner has no change he paid Rs. 100 to passengers and promise to pay balance of Rs. 350 – The categorical finding recorded by the Labour Court upon appreciating the entire material on record, both oral and documentary, that the petitioner has failed to establish his defence and no ground is made out to interfere with the detailed finding of fact made by the Labour Court in this regard – Petitioner in his cross-examination admitted before the Labour Court that on 184 occasions he had committed offences of misconduct – Fine was imposed upon him and on 5 occasions severe punishment was imposed – Dismissal from service has been held to be proper – High Court upheld the award of the Labour Court by dismissing the petition as untenable. Paras 8, 10 and 11

B. PUNISHMENT – Imposition of – Consideration of past conduct of a delinquent bus conductor – It was admitted by the conductor (petitioner) that on 191 occasions, the respondent-Corporation had issued a memo including misappropriation of Corporation money. Para 11

C. LOSS OF CONFIDENCE in an employee employed as bus conductor – Once the money is found to have been misappropriated – Loss of confidence which is the primary factor has to be taken into consideration for imposition of punishment – There was nothing wrong in the respondent-Corporation losing confidence or faith in such a person in awarding him punishment of dismissal. Para 17

For Petitioner: Mr. L. Shekar, Advocate.

For Respondent: Mr. B.L. Sanieev. Advocate.

IMPORTANT POINTS

Possessing excess sum of Rs. 359 by a bus conductor who was checked on enroute without justifiable explanation, would justify his dismissal from service and the Labour Court after holding that the enquiry as held against him was fair and proper and the charges were proved against him.
The past conduct of the bus conductor revealed that over 191 misconducts on his part and despite minor punishments he did not improve his habit of committing misconducts by misappropriating public money of the transport corporation.
An employee who has misappropriated public money would lose the confidence of the respondent corporation or faith in such a person hence his dismissal from service as awarded by the Labour Court have rightly upheld by the High Court.

ORDER

C.M. Poonacha, J. –1. The present Writ Petition is filed seeking the following reliefs:

“(a) Issue a writ or order in the nature of writ of certiorari quashing the impugned award dated 16.11.2018 passed by the Presiding Officer, Labour Court, Chikkamagalur in IDA No. 13/2016 at Annexure-A under the facts and circumstances of the case.

(b) Issue a writ or order in the nature of writ of mandamus directing the respondent to reinstate the petitioner and to pay all consequential and service benefits to the petitioner including back wages.

(c) Pass such other order as to cost as this Hon'ble Court deems fit under the facts and circumstances of the case in the interest of justice and equity.”

2. It is the case of the Petitioner-workman that he was working as conductor in the Respondent-Corporation since 1998. On 09.02.2015, he was issued Article of charge on the allegation of possession of excess cash of Rs. 359/-. That on 16.02.2015, the Petitioner-workman submitted his detailed explanation to the Article of charge explaining that the alleged excess cash belonged to passengers who forgot to collect change. That a report was submitted to the disciplinary authority which issued the charge sheet. However, the charge sheet was not accompanied by imputation of charges and documents were not supplied. Further, the enquiry conducted was not as per the regulations and was not fair and proper. On 09.02.2016, the Respondent-Corporation dismissed the Petitioner from service. The Petitioner filed a claim Petition in IDA No. 13/2016 before the Labour Court seeking to set aside the order of dismissal and reinstate him back into service with wages and all consequential benefits. The Respondent-Corporation entered appearance before the Labour Court and contested the proceedings.

3. The Respondent-Corporation examined the enquiry officer as MW. 1 and got marked 21 documents as Exs.M 1 to M 21. The Petitioner examined himself as WW. 1 and got marked one document as Ex.W. 1. The Labour Court heard arguments of both sides on issue No. 1, which was treated as preliminary issue and held that enquiry conducted as fair and proper. Thereafter, the parties have lead evidence on the merits. Considering the evidence on record, the Labour Court vide award dated 16.11.2018 dismissed the application filed by the Petitioner-workman. Being aggrieved, the present Writ Petition is filed.

4. Learned counsel for the Petitioner contends that any excess cash that is available with the conductor is required to be deposited at the end of the journey when the bus reaches destination; that the bus was check en-route and a sum of Rs. 350/- was found in excess in possession of the Petitioner-workman; that the Petitioner-workman did not have an opportunity to deposit excess cash upon the bus reaching its destination. He further submits that in any event, a minor punishment ought to have been awarded and not a major punishment of dismissal of service. In support of his submission, the counsel for Petitioner relies on the following judgments:

(i) The Karnataka State Road Transport Corporation and Another v. Victor Lucas and Another , W.P. No. 49/1991, dated 17-1-1991.

(ii) Bangalore Metropolitan Transport Corporation v. C. Mahadevappa , W.A. No. 436/200, dated 18-9-2000.

5. Learned counsel for the Petitioner-workman seeks to distinguish the judgment of the Hon'ble Supreme Court in the case of Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane , (2005) 3 SCC 254 and seeks for allowing of the writ petition and granting the relief's sought for therein.

6. Per contra, learned counsel appearing for the Respondent-Corporation seeks to justify the action taken by the Corporation and award passed by the Labour Court and submits that the Labour Court has considered all the aspects of matter while passing the award dated 16.11.2018 and same does not warrant interference by this Court in exercise of its discretionary powers under Articles 226 of the Constitution of India. He further submits that the Petitioner-workman was involved in 191 cases of defrauding revenue to the Corporation and minor punishments were imposed and opportunity was provided to Petitioner-workman to rectify his mistakes. Despite the same, since the Petitioner-workman has continued to defraud the revenue of the Corporation, the punishment imposed is just and proper. He seeks to rely on the judgment of the Hon'ble Apex Court in the case of Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane , (2005) 3 SCC 254, and submits that the Writ Petition is liable to be rejected.

7. I have considered the contentions put-forth by both parties and the material available on record. The question that arise for consideration is:

“Whether the award passed by the Labour Court is liable to be interfered with ?”

8. The essential facts are undisputed in as much as petitioner being the conductor in the respondent-Corporation and that when on duty with the checking squad of the respondent-Corporation, the petitioner had possessed excess cash of Rs. 359. It is the case of petitioner that the said excess cash belonged to two passengers who boarded the bus at Hospet and purchased two tickets of Rs. 25/- each. That they paid Rs. 500/- and since the petitioner had no change, he paid Rs. 100/- to the passengers and promised to pay balance amount of Rs. 350/- . The said passengers alighted at Chikmagalur and they forgot to collect the balance amount of Rs. 350/-. In support of oral the said contention, the petitioner produced notice sent by one Umashankar through his advocate, wherein the said Umashankar has narrated the manner in which the excess cash of Rs. 350/- was left with petitioner and that they went to Chikmagalur bus stop and thereafter to Divisional Office to collect the balance amount. At that time, the Divisional Controller gave the address of the bus conductor and mobile number. The Assistant Traffic Superintendent of the respondent-Corporation was examined as MW. 1, who was the checking officer and he has narrated the fact of Rs. 359/- being in excess with petitioner and that no explanation was given with regard to the same and hence the office memo was issued on the spot and endorsed on the way bill. Thereafter, a detailed report was submitted to the Disciplinary Authority. MW. 3-another officer was also examined in evidence before the Labour Court.

9. The Labour Court has appreciated the entire material on record and has noticed that the petitioner-workman has admitted excess cash of Rs. 359/- and has stated that Rs. 350/- were left behind by the passengers and balance amount of Rs. 9 is also concerned to the said passengers. However, the Labour Court has noticed that, he has not stated in writing to the Traffic Controller or Depot Manager that the excess cash belongs to the said passengers.

10. The Labour Court had framed an issue as to whether the domestic enquiry is fair and proper and after recording evidence and hearing arguments of both sides and considering the evidence on record, held the enquiry as fair and proper. On the meirts of the matter also, the Labour Court has appreciated the entire defence put forth by the petitioner and has noticed that the petitioner, has apart from his oral evidence has not adduced evidence of any other witness to prove his defence and hence held that the petitioner-workman has failed to establish that the excess cash belongs to passengers. It is clear from the categorical finding recorded by the Labour Court upon appreciating the entire material on record, both oral and documentary, that the petitioner has failed to establish his defence and no ground is made out to interfere with the detailed finding of fact made by the Labour Court in this regard.

11. The Labour Court noticing that the petitioner-workman had admitted in his cross-examination that on 184 occasions when he had committed offences of misconduct, fine was imposed on him and on 5 occasions severe punishment has been imposed. It is further notice by the Labour Court that the petitioner had admitted that he was earlier dismissed from service and that he was re-instated subsequently pursuant to a Court order. It is further admitted that on 191 occasions, the respondent-Corporation had issued a memo regarding misappropriation of Corporation money. Hence, the Labour Court taking into consideration the fact that on several occasions the minor punishments having been imposed and opportunities were provided to the petitioner-workman to rectify his mistake, inspite of which he continued with the same habit, has recorded a finding that order of dismissal is legal and valid and that it cannot be said to be shockingly disproportionate to the proved misconduct and hence did not deem it fit to exercise the discretionary powers under section 11(a) of the Industrial Disputes Act.

12. The said finding of the Labour Court upholding of the order of dismissal is just and proper and no ground is made out by the petitioner to interfere with the same.

13. Vide order dated 07.11.2022, the counsel for respondent was directed to ascertain the consumer complaint filed by the passengers who were traveling in the bus regarding excess money paid by them. Accordingly, the counsel for respondent has filed a memo dated 21.11.2022 producing a copy of order dated 02.03.2016 passed by the District Consumer Disputes Redressal Forum, at Shivamoga in C.C. No. 105/2015 filed by one N. Umashankar, against the respondent as well as against the petitioner. It is forthcoming from the said order dated 02.03.2016 that the complaint which was filed before the District Consumer Disputes Redressal Forum, at Shivamoga was dismissed as not maintainable for want of territorial jurisdiction. It is pertinent to note that complainant namely N. Umashankar shown as being a resident of Bhadravathi and Divisional Controller, Chikamaglaur Division of respondent-Corporation was arrayed as a party and petitioner-workman was shown as resident of Shivamoga. Hence, the said documents do not aid the case of the petitioner.

14. The contention put-forth by the petitioner that before an opportunity could be afforded to the petitioner-workman to submit the excess cash, the checking squad of the respondent-Corporation had collected the same and issued charge memo and hence the offence cannot be held to be proved, is liable to be rejected in as much as, if the said contention of the petitioner is accepted no checking can ever be conducted by the officials of respondent-Corporation in order to ensure that collection of money is properly done by the conductors. The only way of ensuring that proper collection of ticket money is made is, inter alia, by conducting the surprise checking and hence the contention put-forth by the petitioner is liable to be rejected.

15. In the case of Victor Lucas (supra) a Division Bench of this Court while dealing with the case of excess cash of Rs. 16.35 paise, with the conductor refused to interfere with the finding recorded by the Labour Court and which was accepted by a single judge of this Court that the said excess cash cannot amount to pilferage.

16. In the case of C. Mahadevappa (supra) a Division Bench of this Court while dealing with the case where a conductor was in possession of cash of Rs. 90.45/- and an explanation was given that the same had to be returned to the passengers. In the said case the Labour Court, had noticed that there were no other lapses detected either in the sale of ticket or in the way-bill and had recorded a finding that it was not pilfered amount. The said finding was not interfered with by the learned Single Judge and the Division Bench also refused to interfere with the said finding of fact.

17. The case of Victor Lucas and C. Mahadevappa will not aid the case of the petitioner in as much as in the present case, the Labour Court has recorded a categorical finding of fact that the misconduct by the petitioner is proved and the said finding of fact has been recorded after an appreciation of the entire oral and documentary material on record. The petitioner has not been able to demonstrate as to how the said finding of fact is erroneous and as not having considered any material or having been recorded in the absence of any material on record. The petitioner has sought to distinguish the judgment of the Hon'ble Supreme Court in the case of M.T. Mane (supra) by pointing out that in the said case a sum of Rs. 93/- was found to be in excess by the workman and that the workman in the said case did not have any explanation for having carried the said amount, whereas in the present case, the petitioner has filed suitable explanation which ought to have been accepted by the respondent-Corporation as well as by the Labour Court. The case of A.T. Mane has been relied upon by the respondent-Corporation for the purpose of justifying the quantum of punishment in as much as, once the money is found to have been misappropriated, loss of confidence which the primary factor which has to be taken into consideration and there was nothing wrong in the respondent-Corporation losing confidence or faith in such a person in awarding him punishment of dismissal. The judgment of the Hon'ble Supreme Court in the case of A.T. Mane (supra) is squarely applicable to the present case.

18. In view of the aforementioned, the petitioner has failed to make out a ground to warrant interference in the finding of fact recorded by the Labour Court and the question framed for consideration is answered in the Negative.

19. Hence, the writ petition fails and is accordingly rejected.

No costs.

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