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CASE NO.: Appeal (civil)  1763 of 2002

PETITIONER: The Regional Manager, Rajasthan State Road Transport Corporation

RESPONDENT: Sohan Lal

DATE OF JUDGMENT: 27/09/2004

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

JUDGMENT: J U D G M E N T

(With Civil Appeal No.1764/2002)

SANTOSH HEGDE, J.

       These appeals are preferred against the order of the  Division Bench of the Rajasthan High Court, Jaipur Bench   dated 10th of August, 2001 whereby the said Bench allowed  the special appeal filed before it setting aside the judgment of  the learned Single Judge of the said High Court which had  confirmed the award made by the Industrial Tribunal, Jaipur.         Brief facts necessary for the disposal of these appeals  are as follows;- The respondent herein was appointed as a Conductor on  daily wages in the appellant-Corporation on 20th of June,  1986.  His services were terminated on 1st of December, 1986  on the ground that the same was not required by the appellant- Corporation.  Challenging the said termination, the respondent moved  an application under Section 33(2-A) of the Industrial  Disputes Act, 1947 before the Industrial Tribunal, Jaipur  alleging that his termination was contrary to Section 25F  of  the Industrial Disputes Act, as he has already completed more  than 240 days of continuous service in a year in the appellant- Corporation, therefore, without following the provisions of  Section 25 F of the I.D. Act his services could not have been  terminated. He also alleged in the said application that his  termination was a colourable exercise of power because  during his service in the Corporation an inspection was carried  out by the checking staff on 20th of November, 1986 when he  was on duty in Bus No. 7108. During the course of  investigation, a false case of non-issuance of ticket to six  passengers was made against him and since the Management  was not in a position to prove the said charge it took recourse  to his discharge from service without holding a proper enquiry  which amounts to a colourable exercise of power.         The appellant-Corporation opposed the said application  stating that his appointment  was purely temporary on daily  wages basis and since his services were not required, the same  was terminated which was permissible as per the terms of the  letter of appointment. It is also stated that the respondent had  not completed 240 days of continuous service in any year in  the Corporation and therefore there was no need to comply  with Section 25 F of I.D. Act. However, it was admitted that  when the respondent was working as a Conductor and there  was an inspection on 29.11.1986 wherein it was found that he

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had not issued tickets to six passengers but that was not the  ground on which the termination was based.         In view of the allegation of the respondent-workman  that his termination was for the above said alleged  misconduct, the appellant-Corporation sought permission from  the Industrial Tribunal to lead evidence to justify the charge of  misconduct which permission was granted and parties were  permitted to adduce evidence before the tribunal. Based on the  evidence that came on record the tribunal came to the  conclusion that the Corporation has proved the misconduct as  well as the unruly behaviour of the Conductor during the  inspection, therefore, it came to the conclusion that even on  the ground of misconduct termination of the respondent was  justified, hence, rejected the application of the respondent.         Being aggrieved with the said award of dismissal of his  complaint, the respondent filed a writ petition before a Single  Judge of the Rajasthan High Court, Jaipur Bench. The learned  Single Judge who heard the petition came to the conclusion  that the finding of fact recorded against the petitioner  regarding his misconduct does not suffer from any perversity  so as to give a cause of action for the High Court to interfere  in it, hence, it dismissed the writ petition. Against the said judgment of the learned Single Judge,  the respondent preferred a special appeal before the Division  Bench of the High Court. When the matter came up for  consideration by the Division Bench, the court on 18.7.2001  made the following order : "The learned counsel for the petitioner- appellant  makes a statement that the writ  petitioner is prepared to forego the entire  salary for the period and he would be  satisfied, if at least, reinstatement is  ordered.

We direct the counsel for the  respondent  No. 2 to ascertain  from  his department, whether the petitioner- appellant can be taken now as a fresh  employee".

       The matter again came up for further orders on  10.8.2001 when the Division Bench passed the following  order which is now impugned in this appeal: "The learned counsel for the appellant  now states that he is willing to forego  the  salary from 1986 till the date of his  reinstatement, with continuity  of service  and other attendant benefits attached to  the said post. Since, the appellant has  now opted for the above benefit, we  accept his prayer and direct the  respondent No. 2 accordingly.  The  respondent No. 2 is directed to reinstate   the appellant in service in the above  terms within four weeks from today".   A perusal of these two orders of the Appellate Bench of  the High Court shows that it did not apply its mind to the facts  and law involved in the case but proceeded to consider the  offer made by the appellant in his prayer, i.e., in the event of  his  being re-instated in service he would forego the entire  back wages. The order of 10th of August, 2002 shows that the  appellant-Corporation had not agreed to such a proposal made  by the respondent and the said order which is now impugned

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in this appeal was made without the consent of the appellant.

We notice from the finding of the Industrial Tribunal  that the respondent-workman had indulged in misconduct  which has not only led to monetary loss to the Corporation but  the Corporation has also lost confidence in the said workman.  Therefore,  to continue such an employee in the employment  of the Corporation by virtue of a judicial order, in our opinion,  is an act of misplaced sympathy which can find no foundation  in law or in equity. The finding  that  the workman has  committed the misconduct in question of not issuing tickets to  passengers is a finding of fact arrived at by the Tribunal after  taking into consideration the evidence recorded therein. This  finding was affirmed by the learned Single Judge and the High  Court has not set aside the finding. Therefore, the question of  moulding the relief on the facts of this case did not arise at all.  The offer of the respondent to forego the back wages in lieu of  his being re-instated is not an offer to be taken into  consideration by the court unless and until the finding of the  tribunal on misconduct was set aside and having perused the  records including the order of the tribunal, we are satisfied that  this is not one of those cases in which there was room for  setting aside such a finding.  

Assuming for argument sake that the High Court by the  impugned order proceeded on the basis that though the  misconduct is proved the punishment was disproportionate  and it is on that basis that the impugned order is made, even  then we are unable to agree with the order of the Appellate  Bench of the High Court because it is not the normal  jurisdiction of the superior courts to interfere with the  quantum of sentence unless the said sentence is wholly  disproportionate to the misconduct proved. No such finding  has been recorded by the Appellate Bench in the impugned  order.  Since the misconduct proved is one of dishonesty, the  quantum  of loss is immaterial, it is the loss of confidence that  matters. In such a situation  if the Tribunal chooses to uphold  the  order of dismissal  and refuse  to interfere  with such  termination  and the learned single Judge of the High Court  agreed  with the said order of the Tribunal, then Appellate  Bench  ought not to have interfered with the quantum  of  sentence.  Having  perused the facts of the case we are in  agreement  with the finding  of the Tribunal as well as  learned  single Judge, hence,  we are of the considered opinion that the  Appellate Bench fell in error  in interfering  with the orders of  the courts below merely on the basis of offer made by the  appellant before it.  For the reasons stated above, these appeals succeed. The  order impugned is set aside and that of the tribunal as affirmed  by the learned Single Judge of the High Court is restored.