JUDGMENT Rajes Kumar, J.
1. This writ petition is directed against the judgment and award dated 26.4.2002 passed by Presiding Officer Labour Court, Gorakhpur, which was published on 28.5.2003.
2. Brief facts of the case giving rise to the present petition are that the respondent No. 1 was the employee of the petitioner and was working on the post of conductor attached with Deoria depot. He has been dismissed from the service on the ground that he was conductor of the bus No. UAA-9643 on Lar-Deoria route. On 25.10.1994, Traffic Inspector Shri S.N. Tripathi checked the aforesaid bus near Salempur Bale and found that out of 30 passengers, 24 passengers were travelling without ticket and from the blank book a consolidated ticket of 24 passengers was prepared for Rs. 72. The entry of the said tickets was made in road paper and the checking details were mentioned and after writing the remark in the road paper when Sri S.N. Singh, Assistant Traffic Inspector was going to put his signature, Rajendra Prasad, respondent No. 1 snatched the waybill and threatened for dire consequences and misbehaved with the checking officer. In the explanation, respondent No. 1 stated that there was no person without ticket when the checking was made at Salempur Bale. The passengers boarded the bus at Salempur and the preparation of the ticket was in process and the checking inspector has illegally treated them without ticket. He has refused to have given any threatening and misbehaviour. After the enquiry, employee was found guilty and the enquiry officer has given report on 28.3.1995 in which the allegation made against the employee that with the view to destroy the evidence, he had snatched the way-bill to destroy the evidence and had threatened with dire consequence and misbehaved with the checking officer could not be proved. However, rest of the charges were found correct. Sri Ajay Singh, Regional Manager in his order dated 10.4.1995 has stated that the driver of the bus Ram Singhasan Pandey in his letter dated 26.10.1994 has stated that when Rajendra Prasad was asked to sign the way-bill, instead of putting the signature he has snatched the waybill. He has also stated the same thing in his statement dated 21.3.1993. It has also been stated that on snatching, some of the pages of way bill were torned and taking into account the seriousness of the charges, dismissed the respondent No. 1. Apart from the amount given towards subsistence allowance, rest of the amount is forfeited. Labour court vide order dated 6.3.2000 has not found Internal enquiry proper and fair has provided opportunity to the parties to prove the charges.
3. Seven charges have been framed against the employee: (1) carrying on the passengers without ticket; (2) to cause loss to the corporation; (3) he snatched away the way-bill from Assistant Traffic Inspector; (4) Non-performance of duty; (5) Threatening to the checking officer and misbehaving; (6) Violation of orders of Conduct Rules; (7) Disobedience of orders and directions.
4. The Presiding Officer in its order has observed that the enquiry officer has held that snatching of the way-bill, and threatened him for dire consequence to the checking officer and misbehaviour with the Inspecting officer are not established but the Regional Manager in its order relying upon the statement of the driver held that there was allegation of snatching of way-bill, as a result of which some of the papers have been torn. Thus, it is established that the way-bill was snatched but the threatening for dire consequence and misbehaviour with the officer are not established. It has been observed that some of the papers might have been torn as a result of exchange of protest but it is not proved that the same has been done to destroy the evidence. The Presiding Officer however, observed that the charge relating to the travelling of 24 passengers without ticket is established. However, while determining the quantum of the punishment, it has been observed that the charge has been partially not established and the employer has suffered loss of Rs. 72 only and the employee is employed in the services since 1980 and in the earlier checking he was never found guilty. Thus, the removal from the service has been held unjustified. It has been held that two annual increments for two years should be stopped by way of punishment. It has also been held that the employee may not be entitled for the back wages.
5. Heard Sri Ajay Singh, learned Counsel for the petitioner and Sri S.K. Srivastava, learned Counsel for the respondent No. 1.
6. It may be mentioned here that this Court while entertaining the petition on 23.8.2003 stayed the operation of the impugned award dated 26.4.2002.
7. Learned Counsel for the petitioner submitted that the job of the conductor is Job of faith and trust. Thus, any action of distrust on his part is not commendable and the employee is liable to be dismissed. He submitted that the charge namely, that the respondent No. 1 has allowed the passengers to travel without ticket has been established. This finding of the Presiding Officer has not been challenged by the respondent No. 1 and has become final. The question for consideration is whether the charge namely, that the respondent No. 1 being a conductor allowed 24 passengers out of 30 passengers in bus to travel without ticket is such charge on which dismissal of the employee is justified. He submitted that in the case of U.P.S.R.T.C. v. Mahendra Nath Tiwari and Anr. and Regional Manager. U.P.S.R.T.C., Etawah v. Hoti Lal and Anr. , conductor was found allowing the passengers to travel without ticket held guilty and the dismissal of such employee has been held justified.
8. Learned Counsel for the respondent No. 1 submitted that the punishment should be in proportion to the charges. He submitted that the respondent No. 1 was working since 1980 and on the earlier occasions, on Inspection he was never found guilty and in the present case though he has been found guilty for the charge of carrying 24 passengers without ticket but keeping in view his past conduct and revenue loss only to the extent of Rs. 72 dismissal of the respondent No. 1 from the service is harsh and disproportionate to the charge and thus, the order of the Presiding Officer is wholly justified in setting aside the dismissal of the respondent No. 1 and awarding the punishment to the extent of stopping of two annual increments.
9. In the case Regional Manager, U.P.S.R.T.C., Etawah v. Hoti Lal and Anr. (supra), the employee was a bus conductor and when he was on duty Assistant Regional Manager checked the bus and found 16 persons were travelling without ticket. Even after realising fare from the passenger no ticket was issued up to the time of checking. When the inspecting officers started checking, the respondent hurriedly tried to issue tickets. Old tickets were found in his possession with the intent to use them again. The employee was suspended and was finally terminated. The order of the termination was challenged in the High Court. Learned single Judge of the High Court upheld the termination. However, Division Bench held that since the alleged misconduct has caused loss to the State to the extent of Rs. 16 only, the punishment awarded was not commensurate with the charge and thus, set aside the order of the termination leaving it open to the employer to award any punishment, other than removal or termination or compulsory retirement. The matter went in appeal before the Apex Court. Apex Court held as follows:
It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned single Judge upholding the order of dismissal.
10. In the case of U.P.S.R.T.C. v. Mahendra Nath Tiwari and Anr. , it has been held that the employee was bus conductor. He was removed on the allegation that he was found to be driving the bus and no ticket was issued to a lone passenger found in the bus and he had in his possession used ticket. Presiding Officer directed the reinstatement of the respondent with continuity of service and all the remaining dues but directed the stoppage of his annual increment. Writ petition filed by the U.P.S.R.T. has been dismissed. On the special appeal being filed, Apex Court held as follows:
At the time of issuing notice, this Court issued notice only limited to the question of back wages that was awarded to the respondent. Of course, when we are hearing the appeal on grant of leave or the petition for special leave to appeal after notice, we are entitled to reopen the appeal in its entirety and consider the question of punishment and the legality of the reinstatement ordered by the labour court and affirmed by the High Court. This could be done by giving a notice in that behalf to the respondent and giving him an opportunity of being heard. But for the purpose of this case and at this distance of time, we do not think that it is necessary to do so. Therefore, somewhat reluctantly, we refrain from adopting that course, though, according to us, this is a fit case, where neither the labour court nor the High Court had any justification in interfering with the order removing the respondent from service. The conduct of the respondent as a conductor of U.P.S.R.T.C. was totally irresponsible and clearly constituted misconduct on his part deserving the maximum punishment.
We have no hesitation in coming to the conclusion that the respondent did not deserve the award of back wages to him. In fact, he must consider himself lucky to have been reinstated and that we are not interfering with that reinstatement. When a conductor drives a bus for which he is not authorised, he is endangering the public as well as the property of his employer. This by itself is a serious misconduct Justifying dismissal of a conductor. Similarly, the fact that one passenger was found travelling and had not been issued a ticket for that journey, constitutes a grave charge against a conductor who is really in a position of trust as far as the employer Corporation is concerned. He is duty-bound to collect the fare from every passenger on behalf of his employer. Same is the position regarding the unexplained twelve used tickets found in his possession. That prima facie suggest that there is room to doubt the honesty of the respondent. The charges are such that they show a betrayal of the trust placed on the conductor by the employer and that the employee endangered an asset of the Corporation in addition to endangering the lives of the other users of the road.
It is a misconception to consider that the amount involved in an offence of this nature has a material bearing, while considering whether there has been misconduct on the part of an employee. It may be relevant in a criminal prosecution when considering the quantum of punishment to be imposed. When a person like the conductor of a bus, who has the obligation to make proper collection of the charges from the passengers on Issuing tickets to them, is found to have passengers in the bus, even if it be only one, to whom he had not issued a ticket, it clearly amounts to a clear violation of the duty imposed on him. It is really a breach of the duty cast on the conductor who is acting on behalf of the employer. Whether it be one passenger or ten passengers it would make no difference in principle in the absence of any explanation in that behalf. It was simply the case of a conductor who had violated the regulations or the terms of his employment and had betrayed his employer, which, in any event, is a grave misconduct justifying a dismissal.
11. In the case of Karnataka S.R.T.C. v. B.S. Hullikatti 2001 (2) SCC 574, it was held by the Apex Court that it is misplaced sympathy by Courts in awarding lesser punishments where on checking it is found that the bus conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower denomination knowing fully well the correct fare to be charged. It is the responsibility of the bus conductors to collect the bus fare from the passengers and deposit the same with the Corporation. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare. It was finally held that the order of dismissal should not have been set aside.
12. The aforesaid view has been reiterated by three-Judge Bench of the Apex Court in the case of Regional Manager. R.S.R.T.S. v. Ghanshyam Sharma , wherein in addition to what stated in the case of Karnataka S.R.T.C. v. B.S. Hullikatti (supra) Apex Court further observed that the proved acts amount to either a case of dishonesty or of gross negligence, and bus conductors who by their actions or inactions cause financial loss to the corporations are not fit to be retained In service.
13. Learned Counsel for the respondent No. 1 further submitted that the findings of the court below is finding of fact and should not be interfered. In support of his contention, he relied upon decisions in the case of U.P. State Road Transport Corporation and Ors. v. Mahesh Kumar Mishra and Ors. 2000 (85) FLR 291 : 2000 (2) AWC 1475 (SC); B.C. Chaturvedi v. Union of India and Ors. 1996 (72) FLR 316: Management of Teok Tea Estate v. Presiding Officer, Labour Court, Dibrugarh and Anr. 2006 (108) FLR 696 (Gauhati High Court) and Hombe Gowda Edn, Trust and Anr. v. State of Karnataka and Ors. 2006 (108) FLR 584.
14. In my opinion, decisions cited by learned. counsel for the respondent No. 1 are not applicable to the present case. None of the case relates to the bus conductors in which the charge of carrying the passengers without ticket is found. While the case referred hereinabove namely, in the case of U.P.S.R.T.C. v. Mahendra Nath Tiwari and Anr. and Regional Manager, U.P.S.R.T.C., Etawah v. Hoti Lal and Anr. , relates to the case of the bus conductors, in which on checking it was found that the bus conductor was carrying the passengers without ticket. Thus, it is not necessary to deal every individual case.
15. In the present case, the respondent was found guilty in carrying on the 24 passengers without ticket. In my opinion, this conduct of the respondent is sufficient to dismiss him from the services in view of law laid down by the Apex Court.
16. The issue involved in the present case is squarely covered by the decisions of the Apex Court in the case of Karnataka S.R.T.C. v. B.S. Hullikatti (supra), Regional Manager, R.S.R.T.S. v. Ghanshyam Sharma ; U.P.S.R.T.C. v. Mahendra Nath Tiwari and Anr. and Regional Manager, U.P.S.R.T.C., Etawah v. Hoti Lal and Anr. .
17. For the reasons stated above, Judgment and award dated 26.4.2002 passed by the respondent No. 2, Presiding Officer Labour Court, Gorakhpur is set aside and the dismissal of the respondent No. 1 is restored.
18. In the result, writ petition is allowed.