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CASE NO.: Appeal (civil)  1720 of 2002

PETITIONER: DIVISIONAL CONTROLLER,KSRTC (NWKRTC)

RESPONDENT: A.T. MANE

DATE OF JUDGMENT: 27/09/2004

BENCH: N.Santosh Hegde & S.B. Sinha

JUDGMENT: J U D G M E N T

SANTOSH HEGDE, J.

       The appellant by  way of special  leave petition is challenging the  judgment of the High Court of Karnataka whereby the High Court   dismissed the writ appeal filed by the appellant-corporation confirming  the  judgment of the learned single Judge as well as  the award  of the Additional  Labour Court Hubli whereby the  appellant-corporation was directed to  reinstate the respondent in service  with full back wages and continuity of  service and other  consequential   benefits.  Brief facts necessary for the  disposal of the case are as follows:-         The  respondent was working as a conductor  in the Chikodi depot of  the appellant-corporation.  On  31st May 1999 when the bus in which he was  on duty returned back to the depot after its trip from  Haragiri to Chikodi on  a surprise check  he was found be in possession   of  unaccounted money of  Rs.93/- over  and above  the amount equivalent   to the tickets issued  by  him.  Under Regulation applicable to the respondent, the respondent was   not to carry more than Rs.5/- as his personal money while on duty so as to   obviate   the defence of the  delinquent   conductors that the excess money  was   their personal money.  Basing on these facts  the  appellant  drew an  inference  that this excess amount of Rs.93/-  was the amount collected by  the respondent from the passengers without issuing any tickets or issuing  tickets of lesser denomination  than that was issued.  On the  said  investigation report , the departmental enquiry  was  instituted against the  respondent and having found  guilty  of  the said charge, the disciplinary  authority awarded  the punishment of dismissal.         Being aggrieved  by the said order, respondent preferred a claim  before  the Additional  Labour Court, Hubli  praying for setting aside the  order of  dismissal and for reinstatement with consequential benefits.  The  Labour Court after hearing  the  parties concerned  came to the conclusion  that the inquiry  conducted by the management  was  fair and proper.   However,  it came to  the conclusion that the only charge against the  respondent was being  in possession of  Rs.93/-  which was in excess of  the  sale   of tickets,  no presumption  could be drawn  that  it was   on amount   received  by non-issuance  of tickets  to passengers. It held that the  corporation ought to have examined the passengers from whom  such  amount was collected without issuing tickets or issuing tickets of  lesser  denomination.  Since,  the same  was   not  done, the Labour Court came to   the conclusion  that the order of dismissal  was  uncalled for  and as also   highly  disproportionate compared  with the smallness  of the amount.   Hence, it made the award directing the reinstatement of the respondent with  full  back wages  and continuity of service and other consequential benefits.          As stated above, aggrieved  corporation  preferred a writ petition  before the  High  Court of Karnataka.   The learned single Judge who heard   the writ petition  agreed with the Labour Court  that since  the corporation   failed to examine the passengers from whom the said excess amount was   collected, the  charge of non-issuance of  tickets or issuance of  tickets of  lesser denomination could  not be upheld.  The learned single Judge  also

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agreed with the Labour Court  that  the punishment awarded  was also   excessive however it thought fit to reduce the back wages to 75% as  compared to the full back wages awarded by the Labour Court.         On appeal filed   against  the said judgment  before the Division  Bench of the High Court of Karnataka  came to be dismissed by the Division  Bench  on two grounds firstly  it held that there was a delay of 16 days in  preferring the appeal.  However, the court observed that it would have  certainly condoned the said delay had there been any merit  in the appeal.   Having said so the Division Bench  held that  they do not  find  any merit  in  the appeal and agreed with the single Judge that the order  of  reinstatement   with reduced  back wages  was a  just order.         In  this appeal, the Shri R.S. Hegde learned counsel appearing for the  appellant corporation contended that the Labour Court having  come to the  conclusion that the inquiry was just  and fair could not have come to the  conclusion that it was necessary   for the corporation to have examined the  passengers for the purpose of establishing its charge against the respondent.   He also contended that the corporation had produced before the Labour  Court a list of prior  such misconduct committed by the respondent on  similar charges.  A copy of the said list is annexed to this appeal as annexure  P-1 wherein  it is noticed  the  respondent prior to the order of  dismissal  in  this case was charged number of times for offences of non-issuance of  tickets or issuance of tickets of lesser denomination and collecting  the    correct fare  from the passengers  and not remitting the same to the  corporation.  The list shows  for the above said offences the respondent has  been given various punishments  including   censure, reprimand, fine,  stoppage of increment etc.  Learned counsel  also submitted that the view of  the Labour Court and the learned single Judge  that the misconduct alleged  against the respondent could  only be established by the examination of    passengers is impracticable because as  in the present cse  and quite often the  misconduct  comes  into light only when  the vehicle comes back to the  depot after dropping the passengers  and at the time of  depositing the   collection for the day  if surprise  check  is made at that  time  and such  misconduct is  detected and it  is next to impossible  for the corporation to   trace the passengers   and bring  them before the inquiry officer to establish  their case that is why  the corporation   has from  its regulation made it  mandatory that the conductor should at  no point of time carry  more than  Rs.5/- as  their personal money and if they are found in excess   of that same  will  indicate    that the excess money in question was collected by non- issuance  of  tickets or issuance of tickets of lesser denomination.   In such  circumstances,  it was not necessary  or possible for the appellant- corporation to have examined the passengers to establish  the guilt of the  respondent.  He also submitted  that the finding of the Labour Court  and the  learned single Judge that the punishment is disproportionate to the  misconduct is wholly misconceived.  Learned counsel relied  on a judgment  of this Court in support of this contention of his in the case of  Karnataka  State Road Transport Corpn. Vs. B.S. Hullikatti { (2001) 2 SCC 574}.  That   was also a  case where a conductor  concerned had committed  similar   misconduct  36 times prior to the time he was  found guilty   and bearing that  fact in mind  this Court  held  thus:-

       "Be that as it may , the principle  of res ipsa loquitur,  namely, the facts speak for themselves, is clearly  applicable  in  the instant case.  Charging 50 paise per  ticket more from   as many as  35 passengers could   only  be to get financial benefit, by the Conductor.   This act was either dishonest or was so grossly  negligent that the respondent was not fit to be retained  as a  Conductor because such action or inaction of his  is bound  to result in financial  loss to the appellant  corporation."

       On the above basis, the Court came to the conclusion that the order of   dismissal should   have been  set aside.  In our opinion, the facts of the above  case and the law laid down  therein  applies to the facts of  the  present case  also.

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       The fact  the respondent was carrying Rs.93/-  in excess of the amount  is a  fact  proved.  This itself   is a misconduct  over and above that  the  courts below  ought  not to have insisted  on examination of  the passengers.   Since  the respondent  did not have  any explanation for having  carried  the  said excess amount, this  omission  also is  was sufficient  to hold the  respondent guilty.         This Court in the case of   State of Haryana  & Anr. vs. Rattan Singh   { (1977)  2 SCC 491 which is also a case arising out  of  non-issuance of  ticket by a conductor held thus:-

"In a domestic enquiry all the  strict  and  sophisticated rules of Evidence  Act may not  apply.  All materials which are logically probative   for  a   prudent mind  are permissible, though   departmental authorities  and Administrative  Tribunals must be careful  in evaluating such  material  and should  not glibly swallow what  is  strictly speaking not relevant  under the Evidence  Act.  The essence of  judicial approach is   objectivity, exclusion  of extraneous  materials or  considerations, and observance of rules of  natural   justice.   Fair play  is the basis and if perversity  or  arbitrariness,  bias  or surrender of independence    of judgment, vitiate  the conclusion reached, such a  finding, even  of a  domestic  tribunal , cannot be  held to be  good.   The  simple point   in all these  cases  is, was there  some evidence  or was there   no evidence -- not in the sense of the technical  rules governing    Court proceedings  but in a fair  commonsense   way as men of understanding and  worldly wisdom  will accept.  Sufficiency of  evidence in proof of the finding by a  domestic   tribunal  is beyond scrutiny  by court, while  absence  of any evidence  in support of the finding   is an error of law apparent on the record and the  court  can interfere with the finding.

       In the present case , evidence of the   inspector is some evidence which  has  relevance  to the charge  and the courts below had  misdirected themselves in  insisting  on the  evidence of ticketless passengers.  Also merely  because the statements were not recorded, the  order for  termination cannot be invalid.  In fact,  the  inspector  tried to get  their statements but the  passengers declined.  Further , it was not for the  court  but the tribunal to assess the evidence of the  conductor."

       From the above it is clear  once a domestic  tribunal based on  evidence  comes to a particular conclusion  normally it is not open to the   appellate tribunals  and courts   to substitute their subjective  opinion  in the  place of the one arrived at by the domestic tribunal.  In the present case,   there is evidence  of the inspector  who checked the bus which establishes  the misconduct  of the respondent.  The domestic tribunal  accepted  that  evidence  and found the respondent guilty.  But the courts below   misdirected themselves  in insisting  on the evidence  of the ticketless   passengers  to reject the said finding which, in our opinion,  as held by this  Court in  the  case of  Rattan Singh  (supra)  is not  a condition precedent.   We may herein note  that the judgment of this Court  in Rattan Singh’s  (supra)  has since been followed by this Court  in Devendra Swamy  vs.  Karnataka State Road Transport Corporation { (2002) 9 SCC 644}.         Since the only ground on which the finding of the domestic  tribunal  has been set aside being  the ground that  concerned passengers are not  examined  or their statement  were not recorded, in spite of there being  

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other material to establish the misconduct of the respondent, we are of the  opinion, the courts below have erred in allowing the  claim of the  respondent.  In our opinion, the ratio laid down in the above case of Rattan  Singh (supra) applies  squarely to the facts of this case.         In the instant case also   there is the evidence of the inspector  who  conducted the checking which establishes the misconduct of the respondent  based on which a finding  was given  that the respondent  was guilty of the  misconduct  alleged.  Based on the said finding, the disciplinary authority  has punished  the respondent by an order of dismissal.  But the Labour  Court, and the learned single Judge rejected the said finding and set aside the  punishment  imposed solely on the ground that the evidence of the  passengers concerned was not adduced  and  their statements were not   recorded by the inspector which as stated   in the Rattan Singh’s case is not a  condition precedent.  Therefore, we are of  the opinion that the courts below   have erred  in interfering  with the finding  of fact  on an erroneous basis.               Coming to the question of quantum of punishment, one should bear in  mind the fact that  it is not the amount of money   misappropriated that  becomes  a primary factor for awarding punishment,  on the contrary, it is  the loss of confidence  which is the primary factor to be taken into  consideration.  In  our opinion, when a person is found guilty of   misappropriating  corporation’s fund, there is nothing wrong in the  corporation losing confidence or faith in such a person and awarding  a  punishment of  dismissal. This  Court in the case of  B.S. Hullikatti (supra)  held in a  similar   circumstances  that the act was either dishonest or was so grossly negligent   that the respondent  therein was not fit  to be retained  as a conductor.  It also  held  that in such cases there is no  place for  generosity  or misplaced  sympathy  on the part of  the judicial  forums  and thereby  interfere with the  quantum of punishment.         As noted above, the Division Bench of the High Court  did not  dismiss the petition on the ground of delay but held  it is not worthwhile   condoning the delay  because there was no merit in the appeal.  Since, we  have come to the conclusion that the findings of the Labour Court  and that  of the  learned single Judge  are unsustainable in law, the finding of the  Division Bench also is  liable to be set aside.         For the reasons stated above, this appeal  succeeds.  Impugned  orders  are set aside.  We restore the  dismissal order  made by the disciplinary  authority against the respondent herein.  The appeal  is allowed accordingly.