JUDGMENT Rakesh Tiwari, J.
1. Heard Counsel for the parties and perused the record.
2. This petition arises out from the award dated 31.10.2001 passed by the Labour Court, U.P,, Allahabad in Adjudication Case No. 4 of 1997, The impugned award was enforced by publication on the Notice Board on 16.1.2002.
3. The facts of the case are that the workman-petitioner was appointed on the post of conductor on 13.11.73 in the Uttar Pradesh State Road Transport Corporation (hereinafter referred to as the UPSRTC). He was dismissed from service on charges of misconduct of carrying passengers without tickets by order dated 31.10.1994.
4. The State Government referred the following matter of dispute to the Labour Court, U.P., Allahabad with regard to the petitioner which reads as Under:
^^D;k lsok;kstdksa }kjk lacaf/kr Jfed Jh yYyu flag iq= Lo jkenkl flag dh lsok;sa fnukad 31-1-1994 lekIr dj fn;k tkuk mfpr [email protected] oS/kkfud gS\ ;fn ugha rks lacaf/kr Jfed D;k [email protected]"k ikus dk vf/kdkjh gS ,oa fdl vU; fooj.k lfgr\**
5. Before dismissal from service he was served with a charge-sheet alleging that he was carrying passengers without tickets and that about 40 sold tickets of 50 paise each were not entered in the way-bill with ulterior motive for the purpose of their re-sale.
6. The petitioner replied to the charges on 25.11.91 inter alia, that 27 tickets had already been issued by him to the passengers and while he was in the process of issuing tickets to the remaining passengers, the Checking staff came and took away about 30 tickets of Rs. 1/- each without any reason and further that no statement of any passengers was recorded and the Checking Officer wrote something on the Way-bill in English which the workman could not read. The Assistant Regional Manager, Allahabad was appointed as Enquiry Officer, who was also working as Presenting Officer of the employees in the domestic enquiry. According to the petitioner, the domestic enquiry is in violation of principles of natural justice; the bus was stationed while he was issuing the tickets and that the dismissal order was wholly illegal and unjustified as the case against the petitioner was only for non-entry of the 30 tickets of Rs. 30.00 and as such, the punishment from dismissal of the service was highly disproportionate to the charge. The petitioner filed an appeal which was also dismissed vide order dated 19.9.94 even though Sri Rahul Saxena, the complainant did not appear in the domestic enquiry.
7. The Counsel for the petitioner submits that when the Tribunal allows after holding domestic enquiry as illegal, the Management to produce the evidence before it, the evidence given by the employers in domestic enquiry is wiped out and the Tribunal has to record its finding on the basis of evidence produced before it and the Labour Court can itself reassess the evidence on record in exercise of its power under Section 11A of the Act. He also submits that in case the Labour Court finds that the domestic enquiry held by the employer was defective as such the enquiry proceedings have to be ignored all together and the only way open to the Management in that case is to justify its action by leading evidence before the Labour Court.
8. The Counsel for the petitioner has vehemently urged that the impugned award dated 31.10.2001 has been passed without hearing the representative of the workman as no date and time was fixed in the case for hearing and the Labour Court has erred in deciding the reference against the petitioner without considering the fact that domestic enquiry against him is unjustified and illegal. It is also submitted that there was no evidence on record to prove that the petitioner had not issued tickets to the 27 passengers alleged to have paid Rs. 1.00 each to the petitioner and as such the finding of fact recorded by the Labour Court that the petitioner was guilty of misappropriating the amount of Rs. 30/- is absolutely perverse. The Counsel for the petitioner further urged that the petitioner was working on the City bus and in the City buses the 'principle of pay and board cannot be strictly followed as the passengers keep in boarding and alighting at short intervals and if tickets are not quickly issued there is possibility that the passengers may travel without tickets. He also states that there is not much time available to the conductor to fill the Way-bill at once since the City-bus cannot be stopped anywhere for even 5 minutes to complete the formality of issue and entry of tickets but the Labour Court has not taken into account the practical aspects of the working of the conductor of the City-buses and has decided the reference against the workman. He further submits that the findings of the Labour Court arc perverse as it has failed to consider that there was no signature of the workman petitioner on the Way-bill as admitted by, E.W.-l in his cross-examination dated 5.7.2001 and that the conduct of the petitioner was not a misconduct as defined under Regulation 62 of the UP. State Road Transport Corporation Employees (Other than Officers) Service Regulations, 1981.
9. The parties submitted documentary evidence as well as gave oral evidence in support of their case and the Labour Court by the impugned award dated 31.10.2001 decided the reference against the workman.
The impugned award has been assailed on the ground that 29.8.2001 was fixed for evidence and arguments but the case was not listed on that date and surprisingly on 12.10.2001 the award was sent to the State Government for publication without fixing a date of hearing arguments. Copy of the order-sheet is also appended as Annexure-4 to the writ petition by the petitioner.
10. From perusal of the order-sheet it is evident that the award was passed on 12.10.2001 but the date of the award is 31.10.2001 deciding the reference against the petitioner.
11. Sri Samir Sharma, the Counsel for respondent Nos. 2 and 3 submits that the charges against the petitioner stood proved in the departmental enquiry, as such he was removed from service. A preliminary issue was framed by the Labour Court regarding fairness of enquiry which was decided by it against the employer. Thereafter employer led evidence on receipts of case before the Labour Court. The Counsel for the respondents further submits that the Labour Court after holding that the departmental inquiry as not fair and proper gave an opportunity to the parties to lead evidence which is in consonance with law laid down by the Apex Court in Delhi Cloth and General Mills Co. v. Ludh Budh Singh, AIR 1972 SC 1031. He further submits that after considering the oral and documentary evidence led before the Labour Court it has come to a finding of fact that on basis of the evidence led by the employer that the charges of misconduct stood fully proved against the petitioner.
12. The Labour Court has held that there was no evidence on record to establish that he was awarded punishment on account of malice. The Labour Court came to the conclusion that the workman attempted to embezzle the Corporation revenue and the charges of misconduct relating to carrying passengers without tickets stood fully proved against him. It further held that it has power to interfere in the matter of punishment under Section 11A of the Industrial Disputes Act, 1947 but held that punishment was proper. The punishment is not disproportionate as held by the Apex Court in case of Regional Manager, RSRTC. v. Ghanshyam Sharma, (2002) 10 SCC 330.
The operative portion of the award is as under:
^^mijksDr fooj.k lk{;] vkSj lk{;
dh ifjfLFkfr;ksa dks n`f"Vxr djrs gw, eSa bl fu"d"kZ ij igqaprk gw fd Jfed vius dFku dks izekf.kr djus esa vlQy jgk gS vkSj lsok;kstd vius dFku fo'oluh; gS ftlds vk/kkj ij Jfed }kjk ?kVuk fnukad 11-10-91 ls lacaf/kr cl ;wihch 82 esa tc ;g ifjpkyd Fkk rks mlds }kjk fu;e ds fo:) dk;Zokgh dh xbZA Hkz"Vkpkj esa fyIr gksdj fuxe dks gkfu igqpkuk Li"V :i ls izekf.kr gksrk gS vkSj bl e dks mldks fn;k x;k n.Mkns'k fnukad 31-1-94 iw.kZr% fof/klEer gSA eSA rnuqlkj bl fu"d"kZ ij igqaprk gw fd lanHkZ mijksDrkuqlkj vfHkfu.khZr fd;s tkus ;ksX; gSA lanHkkZns'k la [email protected] [email protected] la fnukafdr 6-1-97 vUrxZr /kkjk 4&ds mizvkSfo vf/k] 1947 Jfed ds foi{k esa bl vk'k; ls vfHkfu.khZr fd;k tkrk gS fd og mijkafdr ifjfLFkfr;ksa esa dksbZ ykHk ikus dk vf/kdkjh ugha gSA mHk; i{k viuk&viuk ckn Lo;a ogu djsaA vksih f}osnh ihBklhu vf/kdkjh] Je U;k;ky;] bykgkcknA**
13. It appears from the record that on 11.10.91 the bus was being checked by the Traffic Superintendent along with other Bus Traffic personnel carrying 98 passengers. Out of these 30 passengers who had boarded from Railway Station and has paid money to the petitioner but he had not issued tickets to them. From perusal of the Way-bill it was found that the 40 tickers of 50 paise were issued by the petitioner but the same were not entered in the Way-bill probably for the purpose of their re-sale as these tickets were neither found with the passengers nor with the petitioner,
14. In such circumstances no case for any interference in the aforesaid findings of fact by the Labour Court have been made out under Article 226 of the Constitution of India.
15. For the reasons stated above, the writ petition is dismissed. No order as to costs.