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CASE NO.: Appeal (civil)  6703 of 2005

PETITIONER: U.P.S.R.T.C.                                                     

RESPONDENT: Mahendra Nath Tiwari & Anr.                                

DATE OF JUDGMENT: 11/11/2005

BENCH: RUMA PAL & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  [arising out of SPECIAL LEAVE PETITION (CIVIL) NO. 9495 OF 2004]

P.K. BALASUBRAMANYAN, J.

               Leave granted.  

1.              The respondent herein was appointed conductor of a bus  by the Uttar Pradesh State Road Transport Corporation (hereinafter  referred to as "U.P.S.R.T.C.").  On the allegation that he was found to  be driving the bus URO 7908 and that no ticket had been issued to a  lone passenger found in the bus and he had in his possession used  tickets, disciplinary proceedings were initiated against the respondent.    A domestic enquiry was got conducted through a retired judicial  officer.  He found that the respondent was unauthorisedly driving the  bus and that no ticket had been issued to a lone passenger sitting in the  bus when the checking party inspected the bus.  He also found that the  respondent had in his possession 12 used tickets.  Based on the  finding at the enquiry and after hearing the respondent, U.P.S.R.T.C.  imposed a punishment of removal against the respondent.   

2.              At the instance of the respondent, the matter was sent to  the labour court.  It was numbered as Adjudication Case No. 259 of  1991.  The Presiding Officer found that the domestic enquiry relied on  by the U.P.S.R.T.C. was not proper.  The parties were given an  opportunity to lead evidence.  U.P.S.R.T.C. adduced evidence in  support of the charge.  The respondent adduced no evidence.  In other  words, he did not even try to explain the circumstances under which  he was allegedly driving the bus or the circumstance in which it was  found that a lone passenger travelling in the bus had not been issued a  ticket.  He also did not try to explain as to how he came to be in  possession of 12 used tickets.  The Presiding Officer, in spite of the  absence of evidence on the side of the respondent proceeded to  interfere with the punishment imposed.  It appears that the Presiding  Officer found that the respondent was a conductor but was driving the  bus.  There was clear evidence before him that the driving of the bus  by a conductor amounted to misconduct.  The Presiding Officer, in  fact, noticed that only the respondent could explain how the twelve  used tickets were with him or how he happened to be in possession of  them.  He also stated that if used tickets were found with the  conductor it falls within the definition of misconduct.  Taking a  curious view that since no action has been taken against the driver, no  action could be taken against the respondent alone and that the  punishment awarded was too severe, the Presiding Officer proceeded  to interfere with the punishment.  

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3.              The 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.  He further directed that  the respondent will receive his annual increment only when he  satisfied his senior officers for three years without any charges or  complaint against him.  Apparently, what he meant was that the  question of increment would depend upon the respondent satisfying  his superiors over a period of three years that his conduct as a  conductor during that period was blemishless.   

4.              U.P.S.R.T.C. filed a writ petition in the High Court of  Allahabad challenging the award of the labour court.  By a reasoning,  which with all the restraint at our command, we can only describe as  perverse and a conclusion obviously flawed, the High Court dismissed  the Writ Petition.  The main theme of the song was that no action had  been taken against the driver.  The judge proceeded to speculate on  the reason why the conductor was driving the bus.  He also stated that  the embezzlement alleged against the respondent was of a paltry sum  of Rs. 1.50.  He came to a curious conclusion that the bus driver who  according to him had changed roles with the respondent as a  conductor, was responsible for not collecting the fare from the  passenger and no reason was shown why no charge sheet was given to  the driver and why no enquiry was held against him.  The learned  judge also accepted the argument that the respondent was given a  totally disproportionate and harsh punishment for his misconduct.   The Writ Petition was dismissed.  We are aghast at the approach made  by the learned judge and the reasoning adopted by him. Here was a  conductor who was not authorized to drive the bus.  Admittedly, he  was driving the bus at the relevant time.  He thus endangered the lives  of pedestrians and other vehicle owners using the road.  He also  endangered the safety of the bus belonging to U.P.S.R.T.C.  He was  found in possession of 12 used tickets for which he offered no  explanation.  One passenger was found in the bus to whom no ticket  had been issued.  If these are not enough to find the conductor of a bus  guilty of misconduct, we wonder what according to the learned judge  would be misconduct on the part of the conductor of a bus.  The  judgment of the High Court is challenged in this appeal.

5.              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.

6.              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 authorized, 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

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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 suggests that there is room to doubt the honesty of the  respondent.  He did not even try to explain the circumstances in that  regard.  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.

7.              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.   

8.              We, therefore, allow the appeal in part and set aside the  award of back wages.  The respondent would be entitled to wages or  salary only from the date of his being reinstated pursuant to the  direction of the labour court.  If anything has been paid to him in  excess, U.P.S.R.T.C. would be entitled to adjust the same from his  future salary in monthly installments and/or recover it from his retiral  benefits, if he is not still in service or by proceeding otherwise.