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CASE NO.: Appeal (civil)  5660 of 2007

PETITIONER: U.P. State Road Transport Corporation

RESPONDENT: Vinod Kumar

DATE OF JUDGMENT: 06/12/2007

BENCH: ASHOK BHAN & D.K. JAIN

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO 5660 OF 2007  [Arising out of S.L.P. (Civil) No. 16639 of 2006)

BHAN, J.

1.      Leave granted

2.      This appeal is directed against the final judgment and  order dated 3.8.2005 passed by the High Court of Uttaranchal  at Nainital in Writ Petition No. 603 (M/S) of 2002.  By the  impugned order, the High Court upheld the findings recorded  by the Labour Court to the effect that the punishment of  removal imposed upon the respondent was excessive in  comparison to the charges levelled against him.  The High  Court while maintaining the findings recorded by the Labour  Court that the punishment of removal was excessive in  comparison to the charges levelled against the workman,  reduced the back wages to 50%.   

3.      Respondent-workman was appointed as a Conductor in the  U.P. State Road Transport Corporation (the appellant herein)  on 26.9.1991.  Respondent was conducting the bus on Kalsi- Chhani route, which was checked and, on inspection it was  found that out of 45 passengers, 28 passengers from Kalsi to  Chhani were without ticket.  The Inspecting Team found that  the Conductor had already recovered fare from 8 such  without- ticket passengers.  That he had issued 6 tickets  which were not in seriatim and their original copies were  not completely filled.  That entry of these tickets was not  made in the Way Bill.  The inspecting team made an  endorsement to this effect on the Way Bill and got the  signatures of respondent as a proof thereof.   On the report  of the inspecting team, charge-sheet was issued to the  respondent and he was placed under suspension.  Later on,  respondent was reinstated in service subject to the final  result of the disciplinary proceedings initiated against  him.    

4.      The Enquiry Officer, after holding the enquiry,  submitted his report wherein it was held that the charges  were partially proved against the respondent.  The enquiry  report was considered by the Punishing Authority, which  disagreed with certain conclusions arrived at by the Enquiry  Officer.  After recording detailed reasons for disagreement  with the conclusions arrived at by the Enquiry Officer, the  Punishing Authority issued a show-cause notice to the

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respondent enclosing therewith a copy of the enquiry report.   It was provided in the said notice that the workman can  inspect the record or obtain the copy thereof, if he so  desires.  Respondent filed its reply to the said show-cause  notice.   Considering the entire material on record  including the reply to the show-cause notice submitted by  the respondent, Punishing Authority passed the detailed  order, removing the respondent from service.  Balance salary  for the period of suspension was also forfeited.   

5.      Respondent raised an industrial dispute.  The State  Government referred the following dispute to the Labour  Court, Dehradun for adjudication:-         "Whether the termination of the services of  the applicant/workman Shri Vinod Kumar S/o  Shri Ravi Ram Singh, Conductor by the  employers from 31.07.1999 is unjustified  and/or illegal?  If so, to which  benefit/compensation the applicant/workman is  entitled and to what extent?"

6.      Both the parties filed written statement, rejoinders  and documents before the Labour Court.   

7.      Respondent did not press the legality and fairness of  the enquiry proceedings and confined his case only to the  conclusions reached by the Enquiry Officer as well as the  quantum of punishment.

8.      Labour Court, without appreciating the fact that in the  absence of challenge to the legality or fairness of the  inquiry report the Court should be reluctant to either  interfere with the finding recorded by the Punishing  Authority or the quantum, held that the charge of  misappropriation has not been proved against the respondent  and, thus, punishment of removal from service is harsh.  It  substituted the punishment of removal by stoppage of one  increment without any cumulative effect and directed  reinstatement of respondent with full back-wages.  The said  award was published.   The appellant challenged the said  award by filing Writ Petition No. 603 (M/S) of 2002 before  the High Court of Uttaranchal at Nainital.    The High  Court, without appreciating the fact that once it was held  that respondent was carrying passengers without ticket and  had also recovered fare from 8 passengers which was a  serious misconduct, upheld the order passed by the Labour  Court.  It agreed with the findings recorded by the Labour  Court that punishment inflicted upon the respondent was  excessive and disproportionate to the charges  levelled/proved, but reduced the back-wages to 50%.  The  award of the Labour Court was modified to that extent.   

9.      Counsel for the parties have been heard.  

10.     As stated in the preceding paragraphs, the respondent  had confined his case only to the conclusions reached by the  Enquiry Officer as well as the quantum of punishment.  Therefore, since the respondent had not challenged the  correctness, legality or validity of the enquiry conducted,  it was not open to the Labour Court to go into the findings  recorded by the Enquiry Officer regarding the misconduct  committed by the respondent.  This Court in a number of  judgments has held that the punishment of removal/dismissal  is the appropriate punishment for an employee found guilty  of misappropriation of funds; and the Courts should be

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reluctant to reduce the punishment on misplaced sympathy for  a workman.  That, there is nothing wrong in the employer  losing confidence or faith in such an employee and awarding  punishment of dismissal.  That, in such cases, there is no  place for generosity or misplaced sympathy on the part of  the judicial forums and interfering with the quantum of  punishment.  Without burdening the judgment with all the  judgments of this Court on this point, we may only refer to  a recent judgment in Divisional Controller, N.E.K.R.T.C. Vs.  H. Amaresh, 2006 (6) SCC 187, wherein this Court, after  taking into account the earlier decisions, held in para 18  as under:-

       "In the instant case, the mis- appropriation of the funds by the  delinquent employee was only Rs.360.95.  This Court has considered the punishment  that may be awarded to the delinquent  employees who mis-appropriated the funds of  the Corporation and the factors to be  considered. This Court in a catena of  judgments held that the loss of confidence  is the primary factor and not the amount of  money mis-appropriated and that the  sympathy or generosity cannot be a factor  which is impermissible in law. When an  employee is found guilty of pilferage or of  mis-appropriating the Corporation’s funds,  there is nothing wrong in the Corporation  losing confidence or faith in such an  employee and awarding punishment of  dismissal. In such cases, there is no place  for generosity or misplaced sympathy on the  part of the judicial forums and interfering  therefore with the quantum of punishment.  The judgment in Karnataka State Road  Transport Corporation v. B.S. Hullikatti  (2001) 2 SCC 574 was also relied on in this  judgment among others. Examination of the  passengers of the vehicle from whom the  said sum was collected was also not  essential. In our view, possession of the  said excess sum of money on the part of the  respondent, a fact proved, is itself a mis- conduct and hence the Labour Court and the  learned Judges of the High Court  misdirected themselves in insisting on the  evidence of the passengers which is wholly  not essential. This apart, the respondent  did not have any explanation for having  carried the said excess amount. This  omission was sufficient to hold him guilty.  This act was so grossly negligent that the  respondent was not fit to be retained as a  conductor because such action or inaction  of his was bound to result in financial  loss to the appellant irrespective of the  quantum." [Underlining is ours]

11.     Respectfully agreeing and following the aforesaid  decision of this Court, we accept this appeal and set aside  the judgment of the High Court as well as the order passed  by the Labour Court.  Consequently, the order passed by the  Punishing Authority dismissing/removing the respondent from

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service is restored.  No costs.