(d) Theft, fraud or dishonestly in connection with the employer's business or property or a theft of another employee's property within the establishment."
In the instant case, the allegation against the employee is that he failed to make entry of two tickets in the invoice, which cannot be construed as 'theft, fraud or dishonestly doing something in connection with the employer's business or property or a theft of another employee's property within the establishment', to attract the said rule, since the employee has issued tickets for all the passengers, who were travelling in the bus and the fare was also collected from them. Even, as per the case of the appellant, the first respondent had failed to make only the entry for two tickets he had issued tickets and therefore, he was accountable for the amount collected as fare from the passengers, for which tickets were already issued.
11. Learned counsel for the appellant mainly contended that while the Industrial Tribunal, Coimbatore, passed the order, dated 09.11.1992 in I.D.No.53 of 1999, setting aside the order passed by the appellant and directed the appellant to reinstate the first respondent without backwages, on that ground that the punishment imposed was disproportionate, the Industrial Tribunal, Chennai in Petition No.85 of 1989, dated 29.05.1991, while dismissing the Petition filed by the appellant, held that the first charge framed against the first respondent by the appellant, that he had failed to enter the issuance of two tickets for the value one for Rs.1.25/- and another for Re.1.00/- in the invoice, has been proved and held that the same could not be construed as serious misconduct, warranting dismissal of the employee from service and in the said order, in paragraph number 4, the Tribunal expressed its view that the appellant could have imposed a lesser punishment like suspension or fine. While answering for point number 2, whether the punishment is excessive against the first respondent, the Tribunal has given its finding in favour of the first respondent, holding that the punishment of dismissal is unwarranted, as disproportionate and that the punishment has been disapproved by the Tribunal. Therefore, according to the learned counsel for the appellant, directing the appellant to pay full back wages from the date of dismissal is contrary to law and not sustainable. In support of his contention, the learned counsel for the appellant cited the following decisions of the Hon'ble Apex Court :
1. Regl. Manager, U.R.T.Corpn., vs. T.Singh, 2008 (1) L.L.N.760
2. U.P.S.R.T.Corpn., vs. V.Kumar, 2008 (1) L.L.N.762
12. On the other hand, Mr.D.Hariparanthaman, learned counsel appearing for the first respondent submitted that the first respondent was not guilty of any charge. Though he had issued the alleged two tickets to the passengers, due to insufficient light in the bus, he could not make entries in the invoice and therefore, the Industrial Tribunals could not have held that the charge was proved and that there is no error or infirmity in the order passed in the writ petitions by the learned single Judge. In support of his contention, he relied on the following decisions :
1. Color-Chem Ltd., vs. A.L.Alaspurkar, 1998 (3) SCC 192
2. Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., vs. Ram Gopal Sharma, 2002 (2) SCC 244
13. In the decision, Regl. Manager, U.R.T.Corpn., vs. T.Singh, reported in 2008 (1) L.L.N.760, cited by the learned counsel for the appellant, the Hon'ble Apex Court has held that the order of termination of service passed against a conductor could be justified, for not issuing tickets to 20 passengers, though fare was collected from them and entries were not made in the way bill for 23 passengers out of 48, holding that the said illegality committed by the conductor cannot be legalized. The Hon'ble Supreme Court in the decision referred supra has further ruled as follows :
"7...The material on record also shows that the checking staff with a view to regularise the entries and regularising the travel of the passengers had directed issuance of tickets to those 20 passengers to whom respondent 1 had not issued tickets. This is evident from the fact that the Tribunal had categorically noted that 20 passengers were issued tickets by the checking staff and respondent 1 was directed to make entries in the way bill. Issuance of tickets on the basis of the instructions of the checking staff cannot legalise the illegality committed by respondent 1 employee..."
14. In the decision, U.P.S.R.T.Corpn., vs. V.Kumar, reported in 2008 (1) L.L.N.762, the Hon'ble Supreme Court has held that there is no place for generosity or misplaced sympathy on the part of the judicial forums, while interfering with quantum of punishment. In that case, the conductor had not even issued tickets to 28 passengers, who were travelling in a bus belonging to Uttar Pradesh State Road Transport Corporation, though he collected the fare from the passengers.
15. Hence, considering the facts and circumstances of the cases referred to, we are of the view that the aforesaid decisions are not applicable to the facts and circumstances of this case, since the first respondent had issued tickets to all the passengers available in the bus and the only allegation against him is that he has failed to make entry in the trip sheet about the issuance of tickets to two passengers. In the referred cases, the conductors had not issued tickets for more than 20 persons, after collecting the fare, for which entries were also not made in the relevant way bills. In the instant case, though the first respondent had issued tickets to all the passengers, he failed only to make entries with regard to two tickets for the value one for Rs.1.25/- and another for Re.1.00/- in the invoice. The delinquent has stated the reason that due to the diminishing light in the bus, at the time of issuing the tickets, he could not make the two entries in the invoice. As he had issued tickets to all the passengers, it cannotbe said that the first respondent misappropriated the money collected for the said the two tickets. Therefore, the minor lapse on the part of the first respondent cannot be compared with the lapses committed by the employees in the aforesaid cases. In the referred cases, the conductors had collected the fare from passengers, but not issued tickets and made entries in the trip sheet and thus caused loss to the State Transport Corporation and thereby gained illegally. The facts of the case on hand are different, hence, as found by the tribunals, the lapse of the first respondent cannot be construed as a major misconduct, warranting dismissal from service.
16. The Full Bench of the Hon'ble Supreme Court in the decision, Color-Chem Ltd., vs. A.L.Alaspurkar, reported in 1998 (3) SCC 192, has held that the punishment of dismissal imposed on the employee is shockingly disproportionate to the charges, though the same were held proved against the employee. The charge therein is that the employee was found sleeping while on duty keeping the machine in working state, which was found to be a major misconduct by the management, however held Item 1(g) of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (1 of 1972) is not attracted. In the Judgment, it has been further held as follows:
"15. In the result, this appeal is dismissed subject to the slight modification that Respondents 3 and 4 will be entitled to reinstatement and continuity of service but so far as back wages are concerned, even after the order of the Labour instead of 100% of back wages, Respondents 3 will be entitled to 40% back wages till reinstatement and Respondent 4 will be entitled to 50% back wages till actual reinstatement pursuant to the present order. They will also be suitably warned in writing by the appellant as aforesaid. We direct the appellant to reinstate the respondents concerned within four weeks from the date of receipt of a copy of this order at its end. The office shall send a copy of this order to the appellant for information and necessary action. Pursuant to the interim order of this Court pending this appeal, the appellant was directed to deposit Rs.78,000/- for being paid to the respondent-workmen towards their claim of back wages as awarded by the Labour Court and as confirmed by the higher courts. Deducting the said amount, the balance of back wages as payable to the respondents concerned pursuant to the present order shall be worked out and this amount of back wages with all other consequential monetary benefits flowing from the order of reinstatement shall be made available by the appellant to the respondents concerned within a period of eight weeks from the receipt of a copy of this order at its end..."
17. The Constitutional Bench of the Hon'ble Apex Court in the decision, Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., vs. Ram Gopal Sharma, reported in 2002 (2) SCC 244, has held as follows :
"13...The interpretation of statue must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to
Section 33 (2) (b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of the industrial dispute when the relationship between them is already strained. An employer cannot be permitted to use the provision of
Section 33 (2) (b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman"
18. In the instant case, by order, dated 29.05.1991 made in Petition No.85 of 1988, the Industrial Tribunal, Chennai has found that the charge levelled against the first respondent has been proved, however, held that the same is not a serious misconduct warranting dismissal of the employee from service. It has further expressed its view that the appellant could have imposed a lesser punishment like suspension or fine. Accordingly, the petition filed by the appellant herein was dismissed by the Industrial Tribunal, Coimbatore. The Labour Court, Coimbatore, by order, dated 09.11.1992 made in I.D.No.53 of 1989 has also taken a similar view whereby, it has set aside the order of dismissal passed by the appellant and consequently, directed that the first respondent herein should be reinstated in service without back wages.
19. The learned Single Judge, by the impugned common order has dismissed the writ petition filed by the appellant herein and allowed the writ petition filed by the first respondent, thereby confirming the award passed by the Industrial Tribunal, Coimbatore, so far as it relates to the reinstatement of the first respondent in service, but held that he is entitled to full back wages from the date of dismissal from service.
20. In the light of the various decisions rendered by the Hon'ble Apex Court referred to supra and also considering the facts and circumstances of the case in hand, we are of the view that the Tribunals have rightly held that the proved charge is not a serious misconduct, warranting the dismissal of the employee from service. On the date of occurrence, admittedly, the first respondent, as conductor of the bus had issued tickets to all the passengers, who were travelling in the bus and the only charge is that he did not make entries for two tickets and the value for the tickets are Re.1.00 and Rs.1.25 and further, according to the conductor, the first respondent herein, due to diminishing of light inside the bus, could not make entries in respect of the two tickets in the invoice. Had he permitted the passengers without obtaining ticket or collected the fare without issuing tickets, it could be presumed that he caused loss to the transport corporation and reaped illegal gain, so as to treat the same as a serious misconduct.
21. It is a settled proposition of law that even if charge is proved against an employee, the punishment imposed by the employer must be proportionate and legally sustainable. In the writ jurisdiction, under
Article 226 of the Constitution, normally this Court cannot interfere with the order, on the ground of proportionality of punishment, but when the punishment is shockingly disproportionate, to meet the ends of justice, this Court has to interfere, in order to set right the injustice caused by such disproportionate punishment. In the instant case, based on the materials available on record, both the Tribunals and the learned single Judge, have concurrently held that the impugned order of the appellant, dismissing the first respondent is disproportionate and against law, accordingly, the order of dismissal was set aside by the Tribunal, directing the appellant to reinstate him into service. Hence, the learned single Judge has rightly dismissed the W.P.No.17037 of 1991 preferred by the appellant herein. However, while allowing the writ petition in W.P.No.4065 of 1994 filed by the employee, the learned single Judge had directed the appellant to pay full back wages, though the Tribunals have held that the first respondent had failed to make entries for two tickets in the invoice and held that it is not a major misconduct, warranting dismissal of the employee from service. For a minor charge having been proved, capital punishment, such as dismissal from service cannot be imposed, as held by the Hon'ble Apex Court.
22. In the light of the Full Bench decision of the Hon'ble Apex Court cited supra, we hold that for the minor charge, having been proved against the first respondent, imposing punishment of removal from service is shockingly disproportionate. However, in the light of the decision, we are of the considered view to modify common order passed by the learned single Judge, by directing the appellant to pay 25% back wages from the date of dismissal till the date of reinstatement into service, after deducting the amount already withdrawn by the first respondent, instead of paying full back wages and in all other aspects, the order passed by the learned single Judge is confirmed.
23. In the result, W.A.No.1670 of 1999 is dismissed, confirming the order passed by the learned single Judge and W.A.No.1671 of 1999 is disposed of with the aforesaid modification. No order as to costs.