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                                                  REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

CIVIL  APPEAL  NO. 5114   OF 2009 [Arising out of SLP(C) No. 4224/2009]

  U.P. STATE ROAD TRANSPORT CORPORATION ... APPELLANT(S)

:VERSUS:

  NANHE LAL KUSHWAHA ... RESPONDENT(S)

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Appellant is constituted under the Road Transport Corporation Act. It  

employed  the  respondent  herein  as  a  conductor.  Indisputably,  he  had  been  

charged  for  carrying  passengers  without  tickets  on  or  about  06.04.1984,  

10.7.1984, 14.7.1985, 6.3.1986, 23.2.1987 and 4.3.1987. A disciplinary proceeding  

was  initiated  against  him  on  or  about  6.9.1987.  In  the  said  departmental  

proceedings  he  was found guilty  of  the  charges  levelled  against  him. He was  

removed from service by the appointing authority by an order dated 18.12.1991.

3. He raised an industrial dispute. The State of U.P. referred the dispute to  

Labour Court-II, Kanpur for its decision on the following question:

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“Whether  termination  of  services  by  the  employers  of  their  workman  Nanhe  Lal  Kushwaha,  S/o  Heera  Lal  Kushwaha,  Conductor vide order dated 18.12.1991 is legal and/or valid?  If  not, then to what relief/compensation the concerned workman is  entitled to get?  And with what other details?”  

4. By  reason  of  its  award  dated  29.2.2000  the  Labour  Court  directed  

reinstatement of the respondent with 75% back-wages, stating:

“I have duly perused all the documents available on record and  considered  the  above  discussions.  The  misconducts  of  carrying  without ticket passengers on 06.03.1986 and 04.03.1987 which had  been levelled against the petitioner workman, the same have been  found proved on the basis of evidence of the witnesses produced  by the Respondents. But misconducts regarding the incidents of  10.04.1984,  14.07.1985,  06.04.1984  and  23.02.1987  for  which  Respondents have chargesheeted the workman the same are not  found  to  be  proved.  Hence  the  workman  concerned  with  the  dispute is fully guilty for the misconduct committed on 06.03.1986  and 04.03.1987 but he is not guilty for the misconducts committed  on 10.04.1984, 14.07.1985, 06.4.1984 and 23.02.1987. Considering  all the fact and circumstance in the present case I have reached to  the  conclusion  that  the  punishment  imposed  by  order  dated  18.12.1991 by the employers on the workman concerned with the  dispute,  Nanhe  Lal  Kushwaha  is  excessive  considering  the  seriousness  of  charges.  Therefore,  amending  the  order  dated  18.12.1991  passed  by  Respondent,  they  are  being  directed  to  reinstate  Shri  Nanhe  Lal  Kushwaha,  S/o  Shri  Heera  Lal  Kushwaha, Conductor from the date of removal from service i.e.  18.12.1991 with continuity  of   service.   Since  two charges have  been  found  proved  against  the  workman  concerned  with  the  dispute hence the Respondents are directed that they will pay 75%  of  wages  and other  wages  and other  benefits  to  the  concerned  workman during the period of unemployment.”

5. Questioning the correctness  of the said award, appellant  filed a writ  

petition before the Allahabad High Court. By reason of the impugned judgment  

dated 14.08.2008, the High Court while noticing the submission on behalf of the  

appellant that the respondent was holding the post of trust wherefor honesty and

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integrity are inbuilt requirements of functioning, held:

“However, in view of the fact that the Respondent workman was  reinstated in service under the interim order of this Court dated  17.7.2000 and has now retired from service, it is directed that the  award of the Labour Court shall stand modified to the extent that  no back-wages shall be payable to the workman concerned but he  may  be  given  continuity  of  service  for  the  purposes  of  retiral  benefits.  The retiral  benefits  etc.  of  the workman concerned be  paid in accordance with law within a period of 4 months from the  date of production of a certified copy of this order.  

For the reasons stated above, the writ petition is partly  allowed. No order as to costs.”    

6. The  contention  of  the  learned  counsel  for  the  appellant  is  that  the  

Labour  Court  also  found  the  respondent  guilty  of  carrying  the  passengers  

without tickets on two occasions and that the respondent should have been dealt  

with iron hands and it was held:

“Since  charges  have  been  found  proved  against  the  workman  concerned with the dispute hence the Respondents are directed  that  they  will  pay  75%  of  wages  and  other  wages  and  other  benefits  to  the  concerned  workman  during  the  period  of  unemployment.”

7. This Court times without number has deprecated the practice adopted  

by  the  High  Courts  in  disposing  of  the  writ  petitions  without  assigning  any  

reason.  It is  well settled that industrial tribunal or a labour court may interfere  

with a quantum of punishment awarded by the employer in exercise of its power  

under  Section  11A  of  the  U.P.  Industrial  Disputes  Act  but,  ordinarily,  the  

discretion exercised by the employer should not be interfered with.  The learned  

Labour Court  did not  assign any sufficient  and cogent reason as  to  on what

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premise the punishment imposed upon the respondent by the employer by an  

order  dated  18.12.1991,  can  be  said  to  be  excessive;  keeping  in  view  the  

seriousness of the charges. The question as to whether an order of punishment is  

disproportionate to the gravity of charge on the basis whereof the workman has  

been found to be guilty, must be spelt out in a clear and cogent manner.  

8. The High Court  also,  as  indicated  hereinbefore,  despite  noticing the  

submissions made on behalf of the appellant, did not choose to deal therewith.  It  

passed the operative portion of the order without discussing any materials on  

record.   Even  the  principles  of  law  on  the  basis  whereof  the  purported  

discretionary jurisdiction was sought to be exercised, has not been stated.  The  

High Court noticed the decision of this Court in Regional Manager, U.P.SRTC,  

Etawah and Ors. v.  Hoti  Lal  and Anr.,  2003 (3)  SCC 605,  but  failed  and/or  

neglected to advert to the ratio laid down therein.  In Hoti Lal (supra) this Court  

opined:  

“It is the responsibility of the bus conductors to collect the correct  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.”

The learned Judges held :

“It needs to be emphasized that the court or tribunal while dealing  with the quantum of punishment has to record reasons as to why  it  is  felt  that  the  punishment  was  not  commensurate  with  the  proved charges. As has been highlighted in several cases to which  reference has been made above, the scope for interference is very  limited  and   restricted  to  exceptional  cases  in  the  indicated  circumstances.  Unfortunately,  in the present case as the quoted

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extracts of the High Court's order would go to show, no  reasons  whatsoever  have been indicated as  to  why the  punishment was  considered disproportionate.  Reasons are live links between the  mind of the decision taken to the controversy in question and the  decision or conclusion arrived at. Failure to give reasons amounts  to denial of justice.  [See Alexander Machinery (Dudley)  Ltd.  v.  Crabtree,  1974  LCR  120  (NITC)]  A  mere  statement  that  it  is  disproportionate would not  suffice.  A party appearing before  a  court, as to  what it is that the court is addressing its mind.  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 mater 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 ac ts 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.”    

9. The High Court, in our opinion, committed the same error which had  

been pointed out in the aforesaid decision. Apart therefrom, this Court in L.K.  

Verma v. HMT Ltd. and Anr., 2006 (2) SCC 269, opined:  

“So far  as the contention as regards quantum of punishment is  concerned, suffice it to say that verbal abuse has been held to be  sufficient for inflicting a punishment of dismissal.”

This Court further noticed :  

“23. Mahindra and Mahindra Ltd. v. N.N. Narawade etc. [JT  2005 (2)  SC 583 :  (2005)  3   SCC 134]  is  a  case wherein the  misconduct  against  the delinquent  was 'verbal  abuse'.    This  Court held :

'It is no doubt true that after introduction of Section 11-A in the  Industrial Disputes Act, certain amount of discretion is vested  with the Labour Court/Industrial Tribunal in interfering with  the quantum of punishment awarded by the management where  the workman concerned is found guilty of misconduct. The said  area  of  discretion has  been very  well  defined  by  the  various

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judgments  of  this  Court  referred  to  hereinabove  and  it  is  certainly  not  unlimited  as  has  been observed by the Division  Bench of the High Court. The discretion which can be exercised  under Section 11-A is available only on the existence of certain  factors like punishment being disproportionate to the gravity of  misconduct so as to disturb the conscience of the court, or the  existence  of  any  mitigating  circumstances  which  require  the  reduction of the sentence, or the past conduct of the workman  which  may  persuade  the  Labour  Court  to  reduce  the  punishment.  In  the  absence  of  any  such  factor  existing,  the  Labour Court  cannot  by way of  sympathy alone exercise  the  power  under  Section  11-A  of  the  Act  and  reduce  the  punishment. As noticed hereinabove at least in two of the cases  cited before us i.e. Orissa Cement Ltd. and New Shorrock Mills  this Court held: "Punishment of dismissal for using of abusive  language cannot be held to be disproportionate.'  

In this case all the forums below have held that the language  used by the workman was filthy. We too are of the opinion that  the language used by the  workman is  such that  it  cannot  be  tolerated by any civilised society. Use of such abusive language  against  a superior officer, that too not once but twice,  in the  presence  of  his  subordinates  cannot  be  termed  to  be  an  indiscipline calling for lesser punishment in the absence of any  extenuating factor referred to hereinabove.'

24.  In  Muriadih  Colliery  v.  Bihar  Colliery  Kamgar  Union  [(2005) 3 SCC 331], this Court, inter alia, following Mahindra  and Mahindra (supra)  held :

'It  is  well-established  principle  in  law  that  in  a  given  circumstance it is open to the Industrial Tribunal acting under  Section  11-A  of  the  Industrial  Disputes  Act,  1947  has  the  jurisdiction  to  interfere  with the  punishment  awarded in  the  domestic  inquiry  for good and valid  reasons.  If  the Tribunal  decides  to  interfere  with  such  punishment  it  should  bear  in  mind the principle of proportionality between the gravity of the  offence and the stringency of the punishment. In the instant case  it is the finding of the Tribunal which is not disturbed by the  writ courts that the two workmen involved in this appeal along  with the others formed themselves into an unlawful assembly,  armed with deadly weapons, went to the office of the General  Manager  and assaulted  him and his  colleagues  causing  them  injuries.  The injuries  suffered by the  General  Manager  were  caused by lathi on the head. The fact that the victim did not die  is  not  a  mitigating  circumstance  to  reduce  the  sentence  of

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dismissal.'

25.  These  questions  recently  came  up  for  consideration  in  Hombe Gowda Edn. Trust & Anr. v. State of Karnataka & Ors.  [2005 (10)  SCALE 307],  upon considering a large number of  cases, this Court held:  

'Indiscipline  in  an  educational  institution  should  not  be  tolerated.  Only because the Principal of the Institution had not  been proceeded against, the same by itself cannot be a ground  for not exercising the discretionary jurisdiction by us.  It may or  may not be that the Management was selectively vindictive but  no  Management  can  ignore  a  serious  lapse  on  the  part  of  a  teacher whose conduct should be an example to the pupils.  This Court has come a long way from its earlier view points.  The recent trend in the decisions of this Court seek to strike a  balance between the earlier approach of the industrial relation  wherein  only  the  interest  of  the  workmen  was  sought  to  be  protected with the avowed object of fast industrial growth of the  country.  In several decisions of this Court it has been noticed  that  how discipline  at the workplaces/  industrial  undertaking  received a set back.  In view of the change in economic policy of  the country, it may not now be proper to allow the employees to  break the discipline with impunity.  Our country is governed by  rule of law.  All actions, therefore, must be taken in accordance  with law.  Law declared by this Court in terms of Article 141 of  the  Constitution of India,  as noticed in the decisions noticed  supra, categorically demonstrates that the Tribunal would not  normally interfere with the quantum of punishment imposed by  the employers unless an appropriate  case is made out therefor.  The Tribunal being  inferior to that of this court was bound to  follow the decisions of this Court which are applicable to the  fact of the present case in question.  The Tribunal can neither  ignore the ratio laid down by this Court nor refuse to follow the  same.'

[See also State of Rajasthan & Anr. v. Mohammed Ayub Naz,  2006 (1) SCALE 79). “   

10. To  the  similar  effect  is  the  decision  of  this  Court  in  Divisional  

Controller, N.E.K.R.T.C. v. H. Amaresh, 2006 (6) SCC 187, wherein it was held:  

“In our view, even short remittance amounts to misconduct and,

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therefore, applying eh rulings of this Court, the impugned order  ought  not  to  have  been passed  by the Division Bench ordering  reinstatement. We, therefore, have no hesitation to set aside the  order  passed  by  the  leaned  Judges  of  the  Division  Bench  and  restore the order of dismissal of the respondent from service. It is  stated that pursuant to the order of Labour Court the respondent  was reinstated in service. Since there was no stay granted by this  Court the respondent had continued in service of the Corporation.  In view of the law laid down by this Court and of the facts and  circumstances of this case, the respondent, in our opinion, has no  legal right to continue in service any further. We, therefore, direct  the  appellant  Corporation  to  immediately  discharge  the  respondent  from  service.  However,  we  make  it  clear  that  the  salary paid to the respondent and other emoluments during this  period shall not be recovered from the respondent. We also make  it  further  clear  that  in  view  of  the  order  of  dismissal  the  respondent shall not be entitled to any further emoluments.”      

11. Mr. S.R. Singh, learned senior appearing on behalf of the respondent,  

however, would contend that this Court in a situation of this nature where the  

employee has already retired and he has been found guilty for commission of a  

minor offence, should not interfere with the impugned judgment.   

12. We regret our inability to accede to the said request. As the respondent  

was  appointed as a conductor and in that capacity was holding the position of  

trust,  it  is  not  the  amount  which would  be  very  material  for  the  purpose  of  

determining the quantum of punishment.   He was charged for commission of  

similar misconducts on six occasions; at least misconduct has been found to be  

proved in respect of two charges even by the Labour Court.           

13. In that view of the matter,  we are of the opinion that the impugned  

judgment cannot be sustained. It is set aside accordingly.  The appeal is  allowed.  

However,  there shall be no order as to costs.

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....................J (S.B. SINHA)

....................J   (DEEPAK VERMA)    NEW DELHI, AUGUST 4, 2009.