1. Petitioner, who was working as a conductor on daily wage basis, has been terminated, with his name struck off from the waiting list, consequent upon a finding of guilt returned against him in disciplinary proceedings, vide order dated 17.12.1991. This order was affirmed in appeal on 6.2.1992. An industrial dispute at the instance of petitioner was, consequently, referred for adjudication to Labour Court-Ist U.P., Kanpur, in Adjudication Case No.220 of 1993. The reference has been answered against the workman petitioner, vide award dated 13.1.1995, which is under challenge in this petition. Prayer has been made to quash the award, as well as for reinstating the petitioner alongwith consequential benefits. A further direction is sought to treat petitioner as a regular employee, instead of daily wager and to regularize the services of petitioner.
2. Challenge to the award has been laid by contending that petitioner was selected as a conductor by a duly constituted Selection Committee in accordance with the procedure contemplated for regular selection after holding a written test and interview. Ultimately, an order of appointment came to be issued by Regional Manager, Jhansi, on 21.8.1989, offering him appointment as conductor on daily wage basis, fixing his wage at Rs.19.15 paisa per day, though he ought to have been appointed substantively. Nevertheless, fact remains that petitioner's engagement was on daily wage basis, as conductor. Petitioner asserts that he also completed training. After about an year's working of petitioner as conductor, disciplinary proceedings were initiated on 26.11.1990, on the charge that while Corporation Bus No. UGG 389 was being operated on Kanpur-Rath Road, it was inspected in the presence of Assistant Regional Manager on 9.11.1990 at 3.00 p.m., wherein 41 passengers were found travelling in the Bus. Upon physical inspection, it transpired that 30 passengers boarded the Bus from Muskara and petitioner had charged Rs.5/- from each person, but tickets were not issued to any of the passengers initially, and it was only when the passengers demanded ticket that they were offered ticket of Rs.2/-, indicating origin of journey from Dhanauri, instead of Muskara, on account of which the inspection squad issued a composite ticket no.2753 to 30 passengers from Muskara to Dhanauri, and statement of certain passengers were also recorded, upon which signature of petitioner was allegedly obtained. The charge levelled, to be precise, was that having received amount for a longer distance, petitioner issued tickets for a shorter journey, thereby misappropriating difference of ticket amount. Accordingly, following five charges were levelled:-
(i). On 9.11.1990, petitioner having realized amount for the entire journey from 30 passengers issued tickets for a shorter journey.
(ii). Petitioner for his own interest tried to misappropriate funds belonging to the Corporation.
(iii). Committing fraud with the Corporation.
(iv). Violating departmental instructions issued.
(v). Working contrary to the employee conduct rules.
3. Petitioner submitted his reply to the chargesheet on 7.1.1991 denying the allegations levelled against him. Sri Chhatrapal Singh, a Panel Judge, was appointed as enquiry officer. An order was also passed on 6.8.1991 not to take petitioner on duty. Enquiry officer conducted enquiry and submitted his report on 20.8.1991 holding the petitioner guilty of attempting to misappropriate amount of Rs.150/- realized from passengers, and thereafter offering them tickets for shorter journey, so as to pocket a sum of Rs.90/-. A show cause notice followed, to which petitioner submitted his reply. The disciplinary authority, after considering the reply submitted by the petitioner, proceeded to hold that allegation of misconduct against petitioner was proved, and consequently, terminated his engagement as a daily wage conductor, and his name was directed to be struck off from the waiting list. Petitioner preferred an appeal, which also has been rejected on 6th February, 1992. It is thereafter that reference has been made on 31.7.1993 for adjudication by Labour Court, on the question as to whether termination of petitioner's services, vide order 17.11.1991, is legal or valid or not? And to what relief is the workman entitled?
4. Before the Labour Court, parties exchanged their written statements and a preliminary issue was framed about fairness of domestic enquiry held against the petitioner. Vide order dated 16.1.1995, Labour Court rejected the enquiry proceedings conducted by the Corporation, and an opportunity was granted to the employer to prove the charges levelled against petitioner, on merits, by adducing evidence. Labour Court upon appreciation of evidence adduced before it, has found that the action of employer in striking of petitioner's name from waiting list is not illegal, and his termination, vide order dated 17.2.1991, suffers from no error/illegality.
5. Assailing the award, learned counsel for the petitioner submits that award suffers from complete non-application of mind, and in the facts of the case, perversity is apparent on fact of the record. The argument, in this regard, is based upon following grounds:-
(a) Action of employer was discriminatory, inasmuch as only petitioner was punished, but no action was taken against the driver.
(b) The cash bag of conductor was not checked to ascertain whether the amount alleged was actually available with him.
(c) None of the passengers were examined.
(d) Assistant Regional Manager, in whose presence inspection was carried out, was not examined.
(e) All the passengers were found having tickets, and the case set up that money for a longer distance was realized, is wholly based upon surmises.
(f) Finding of the Labour Court is perverse for the reason that negative burden has been imposed upon petitioner to prove his innocence.
(g) The findings returned are also beyond the charges levelled.
6. In support of such contention, learned counsel for the petitioner has relied upon judgments of the Apex Court in the cases of Kuldeep Singh Vs. The Commissioner of Police & Others [1999 (2) SCC 10], Hardwari Lal Vs. State of U.P. & Others [1999 (8) SCC 582], Workmen of Messrs Firestone Tyre Vs. Management and others [1973 (1) SCC 813] and Collector Singh Vs. L.M.L. Ltd. Kanpur [2015 (2) SCC 410].
7. Submission is opposed by the learned counsel appearing for the Corporation, who contends that the award of Labour Court is based upon correct appreciation of evidence, brought on record, and suffers from no error of law or perversity. Learned counsel submits that evidence was led before the Labour Court to demonstrate that workman had admitted his guilt, and in such view of the matter, no error could be shown in the award of Labour Court.
8. I have heard Sri Bhupendra Nath Singh, learned counsel appearing for the petitioner and Sri Shivram Singh, learned counsel for the respondent Corporation, and have perused the record.
9. Before proceeding further, it would be appropriate to refer to the defence set up by the petitioner, in reply to the chargesheet served upon him. Petitioner submitted that inspection report of the Traffic Inspector, which is the basis of charge against him, is absolutely imaginary and a manufactured, and that no inspection of Bus had actually taken place. It is then stated that the bus suffered a brake down, and six passengers had to be shifted to Bus No. UGG 877, and the driver drove the bus from Muskara, after repairing it, and took it to Rath, and all persons, who were travelling, were issued tickets. He also alleged that Traffic Inspector had not found any ticketless traveler, and the waybill was taken from him, and he was forced to sign on blank correction memo, which was subsequently filled. It was also stated that no collective ticket for difference was issued to any of the passengers. He further stated that no statement of passengers was recorded. In the report of Traffic Inspector, driver and conductor were found guilty, but such conclusion could not be drawn even before holding an enquiry; and that it was not shown as to which of the departmental instructions have been violated.
10. Before the Labour Court, Traffic Inspector appeared as a witness of the employer to prove the charges, and his statement has been annexed alongwith supplementary affidavit filed before this Court. On behalf of employer, Sri M.D. Mishra, Office Attendant-Ist, also appeared before the Labour Court. The workman has also appeared. It is in this context that the validity of award has to be examined by this Court, within the parameters settled, inasmuch as neither this Court is to act as an appellate court nor sufficiency or otherwise of evidence needs to be examined. However, petitioner's allegation that award is perverse, and that it suffers from material contradictions, needs to be examined.
11. Before the Labour Court, parties were at issue with regard to nature of petitioner's engagement in the Corporation. However, in view of specific case set up and the prayer made in the writ petition for a direction to the employer to treat petitioner as a regular appointee, and to command the respondents to regularize the services of petitioner and to pay him all benefits of the post, goes to show that there is no serious challenge to the fact that petitioner was appointed as a daily wager. The appointment issued to the petitioner is not under challenge, nor its nature was a subject matter of reference. Limited question, which has been referred for adjudication to the Labour Court, is to examine validity of the termination order dated 17.12.1991. There was no occasion to determine petitioner's status, and as such, this Court is not required to dwell upon status or nature of petitioner's employment. It may, however, be noticed that the appointment letter of the petitioner has been brought on record by petitioner himself, as Annexure-5, which clearly shows that his appointment was on the post of conductor, as a daily wager @ of Rs.19.15 paisa per day.
12. Labour Court, as already noticed above, had framed a preliminary issue with regard to fairness of domestic enquiry proceedings. On this aspect, an order was passed on 16th January, 1995 holding the domestic enquiry held against the worker to be not fair, and directing the employer to prove the charges, on merits. This order is on record of the writ petition as Annexure-16. However, in the award, it has been stated in para-5 that no preliminary issue has been framed about fairness of enquiry, which observation is clearly contrary to the record. However, not much will turn on this aspect of the matter, as the Labour Court has not relied upon any of the findings arrived at in the domestic enquiry, to answer the reference, and it is upon consideration of evidence adduced before the Labour Court itself that conclusions have been drawn for answering reference. The error in the award, therefore, is inconsequential, and as this dispute has remained pending before this Court for last 21 years, it would be appropriate to proceed to examine the award on merits. Workman has appeared before the Labour Court, and has given his oral statement, which has been extensively noticed in paras-7 and 8 of the award. It has been recorded by the Labour Court that the witness has admitted in his cross-examination that on 9.11.1990, 30 alleged passengers with tickets of shorter distance had been found, but he had denied receiving higher amount towards ticket from passengers. In his cross-examination, workman has admitted that Bus was inspected at Gahra Chowki by Traffic Inspector Sri V.K. Awasthi and Sri M.L. Bhushan, and that it was recorded on the waybill that having collected higher money, tickets were issued for lesser amount. The worker, however, admitted his signatures on Ex. E-2.
13. Labour Court has held that workman could not prove that proceedings against him were initiated on account of any enmity. Even before this Court, petitioner has not been able to establish that proceedings have been drawn against him, out of any enmity or annoyance of the officers. The workman has also admitted in his oral statement that Bus had been inspected by the officers concerned. Labour Court has essentially relied upon the statement of Traffic Inspector, who had carried out the inspection of Bus, and had proved Ex. E-1, E-2 and E-3, produced on on behalf of respondent employer. Statement of the Traffic Inspector Sri V.K. Awasthi, which has been brought on record alongwith supplementary affidavit, has been placed in its entirety. He has asserted that waybill was checked by him, and after recording that short tickets had been issued, a ticket towards difference was issued to 30 passengers for a sum of Rs.90/-. The waybill of Bus was also inspected by him, and endorsement on its reverse has been made, which has been encircled in red ink, and has been adduced as Ex. A-1. Statement of passengers has been referred to as Ex. E-2. At serial no.15, correction memo has been produced on behalf of employer, which was filled by the Traffic Inspector, and comments were recorded by him, which was read by the workman, and in the red circle, he had admitted his guilt and incorporated his signature. This document was adduced as Ex.E-3. The employer's witness has been cross-examined on behalf of petitioner. However, he was not confronted on Ex. E-3, and no attempt/suggestion was made disputing the signatures of workman upon the correction memo, which contained admission of guilt by the workman. During the course of hearing of the writ petition also, learned counsel for the petitioner has not been able to explain as to why petitioner did not object to the statement of Sri Awasthi, who had categorically stated that the workman having read and understood the correction memo prepared, had incorporated his signatures thereupon. The Labour Court has essentially relied upon the admission of guilt by the workman recorded in the correction memo, which was duly exhibited in evidence, and the witness, who testified it, had not been confronted in cross-examination. Following observations in the award, referring to such evidence, is reproduced:-
**14& ---- ysfdu =qfV izi= ij muds gLrk{kj ekStwn gS ftlesa mlus viuh xYrh ekuh vLrq ;g ,slk ekeyk gS ftlesa ;fn lsok;kstdks us deZpkjh dks izrh{kk lwph ls gVk fn;k rks mls voS/kkfud ugh dgk tk ldrkA 15& QyLo:i esjk ,okMZ gS fd fookn ls lacaf/kr deZpkjh Jh dkS'ky fd'kksj voLFkh iq= 'kkjnk izlkn voLFkh nSfud osru Hkksxh ifjpkyd dk uke fnukad 17-12-91 ls izrh{kk lwph ls gVkuk vkSj bl izdkj bldh lsok,a lekIr djuk voS/kkfud ugha gS vkSj deZpkjh fdlh ykHk {kfr iwfrZ dk vf/kdkjh ugh gSA 16& i{k viuk&viuk C;; Loa; ogu djsaxsA**
14. The finding of the Labour Court, relying upon such admission of guilt by the workman, which had not been explained in any manner, clearly goes to show that conclusions were drawn by the Labour Court, on the basis of materials, which existed on record. In such circumstances, it cannot be said that the award of Labour Court suffered from any perversity. It may also be noticed that none of the passengers have been adduced as witness, and therefore, their statements have rightly not been relied upon in the award. However, in view of Ex.E-3, which was duly exhibited and proved, and in view of the fact that such admission could not be explained or disputed before the Labour Court, no error could be found in the conclusion drawn by the Labour Court that the action of employer in removing the petitioner from waiting list does not suffer from any illegality.
15. Learned counsel for the petitioner has emphasized that driver was also proceeded departmentally on the same charges, but he was subsequently let off. This aspect is not of any consequence, inasmuch as issuing of ticket to the passengers was an act to be performed by the conductor and not by the driver, and the admission of guilt by the petitioner, in his capacity as a conductor, clearly distinguishes his case from the driver. Petitioner cannot complain that discrimination is caused, if driver is let off. It has not been shown that any admission of guilt existed on part of the driver nor it has been demonstrated with reference to any evidence that driver was also guilty of the charges levelled, and that similar evidence existed against him, and in such circumstances, plea of discrimination on this count is not liable to be sustained. The other ground urged that cash bag was not checked or that Assistant Regional Manager was not examined, also are not material fact for the purposes of proving the charge, in view of the admission of the petitioner, which has not been explained. The argument that Labour Court has travelled beyond the charges or that finding recorded is perverse, could not be substantiated during the course of argument. The judgment relied upon in the case of Kuldeep Singh (supra) deals with fairness of domestic enquiry proceedings. This judgment has no applicability in the matter in issue, since the Labour Court itself has rejected the domestic enquiry, and it is upon the evidence lead before the Labour Court that charges have been found to be proved. Similar view has been reiterated in the case of Hardwari Lal (supra). Learned counsel for the petitioner has also relied upon judgment of the Apex Court in the case of Workmen of Messrs Firestone Tyre (supra), wherein jurisdiction of Labour Court was examined with reference to newly inserted Section 11-A. The Apex Court has been pleased to observe that in respect of cases where a domestic enquiry has been held illegal as also in cases where the Tribunal considers the matter on the evidence adduced before it for the first time, the satisfaction under section 11 A, about the guilt or otherwise of the workman concerned, is that of the Tribunal. The Tribunal has to come to a conclusion, one way or the other, on the basis of evidence produced before it. In the facts of the present case, the finding of guilt has been returned by the Labour Court on the basis of evidence led before it, which could not be shown to be perverse or erroneous, and therefore, petitioner is not entitled to any relief on the basis of the judgments relied upon.
16. Learned counsel for the respondent Corporation has referred to and relied upon a recent judgment of the Apex Court in the case of U.P.S.R.T.C. and others Vs. Gopal Shukla and others, passed in Civil Appeal No.2038 of 2012, decided on 1.9.2015, in which it was contended before the Apex Court that considering the fact that a petty amount was shown to have been misappropriated, as such, punishment of dismissal was bad. Reliance was placed upon an earlier judgment of Apex Court in Municipal Committee, Bahadurgarh Vs. Krishnan Bihari & Ors., [AIR 1996 SC 1249] to observe that in cases involving corruption, there cannot be any punishment other than dismissal, and the fact whether amount misappropriated is small or large, is not material. It was observed that degree of corruption is immaterial and substitution of punishment of dismissal with a lesser punishment was not approved. Reliance has also been placed upon the judgments of the Apex Court in the case of State of Haryana and another Vs. Rattan Singh [AIR 1977 SC 1512]. Hon'ble Supreme Court was dealing with a case of simple termination and complaint that statement of passengers were not recorded by Inspector of Flying Squad, was rejected. The decision of termination, based solely upon the evidence of Inspector, was approved by the Hon'ble Supreme Court. Paragraphs 3 to 6 of the judgment is reproduced:-
"3. The principal ground on which the courts below have declared the termination bad is that none of the 11 passengers have been examined at the domestic enquiry. Secondly, it has been mentioned that there is a departmental instruction that checking inspectors should record the statements of passengers, which was not done in this case. The explanation of the State, as done out by the record, is that the inspector of the flying squad who had said that they had paid the fares but they declined to give such written statement. The third round which weighted with the courts was, perhaps, that the co-conductor in the bus had supported with this evidence, the guiltlessness of the respondent.
4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. Ail materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding,even though of a domestic tribunal, cannot be held good. However, the courts below mis-directed themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passengers from American jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair common-sense way as men of understanding and wordly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a ending is certainty available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has elevance to the charge leveled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground.
5. Reliance was placed, as earlier stated, on the non-compliance with the departmental instruction that statements of passengers should be recorded by inspectOrs. These are instructions of prudence, not rules that bind or vitiate in the violation. In this case, the Inspector tried to get the statements but the passengers declined, the psychology of the latter in such circumstances being understandable, although may not be approved. We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the reavaluation 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 the courts below were right in over-turning the finding of the domestic tribunal.
6. No actual punishment in the sense of dismissal or removal was inflicted and counsel for the State read out the order finally passed. The order merely states that the services were terminated and the State's Counsel agrees that there was no dismissal or removal or punitive punishment as seen from the order. All that we guess is, taking the words used in the order, the authorities probably had regard to the overall circumstances including the long years of service (10 years) and the comparatively young age of the delinquent at the time of termination for service (26) an relented in the matter of final termination by simply telling him off from service without inflicting any of the punishments. This lies within the power of the employer and it is not for us to say that the States should have punished him in a particular manner. Therefore, while confirming the order passed by the State and setting aside the decree of the courts below we hold that the consequences of a simple termination must follow. We, therefore, direct while allowing the appeal, that the State shall pay the respondent all that is due to him under the industrial law as an employment when his services are terminated without penal consequences apart from the salary for the period or he has worked after the recent reinstatement. Counsel for the appellants has agreed that this direction will be carried out as the State is bound to. With these observations, we allow the appeal but the parties will bear their costs throughout."
17. It may be observed that in the present case also, the decision taken is merely to remove the name of petitioner from waiting list and a simple termination has been meted out to him. In view of the materials brought on record, the award of Labour Court would require no interference. Learned counsel for the respondent has also relied upon the judgments of the Apex Court in the case of Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane [2005 (3) SCC 254], Devendra Swamy Vs. Karnataka State Road Transport Corporation [2002 (9) SCC 644], North West Karnataka Road Transport Corporation Vs. H.H. Pujar [AIR 2008 SC 3060], Divisional Manager, Rajasthan S.R.T.C. Vs. Kamruddin [AIR 2009 SC 2528], as well as judgments of this Court in the case of Uttar Pradesh State Road Transport Corporation, Jhansi Vs. Presiding Officer, Labour Court (4), Kanpur [2011 (3) UPLBEC 1979] and U.P.S.R.T.C & Others Vs. K.K. Gupta and others, passed in Writ Petition No.24968 of 1998, dated 4.7.2011 alongwith connected matters, in order to contend that once conductor has misconducted by carrying passengers without proper tickets, then no interference is warranted with the punishment imposed.
18. In view of the discussions held, no infirmity could be shown in the award of Labour Court. Petitioner was merely a daily wager and had hardly worked for a period of a little over a year. A period of nearly 26 years has expired. I find no infirmity in the award of Labour Court, which may require any interference under Article 226 of the Constitution of India.
19. The writ petition, accordingly, fails, and is dismissed.
Order Date :- 5.4.2016 Anil (Ashwani Kumar Mishra, J.)