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SRI SHYAM SHUKLA versus PRESIDING OFFICER, LABOUR COURT,ALLAHABAD & ANR.

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Sri Shyam Shukla v. Presiding Officer, Labour Court,Allahabad & Anr. - WRIT - A No. 33011 of 1998 [2003] RD-AH 73 (3 April 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 24

CIVIL MISC. WRIT PETITION NO 33011 Of 1998

Sri Shyam Shukla   ----- Petitioner

Versus

Presiding Officer, Labour Court,

Allahabad & Anr. -----      Respondents.

--------------

Hon'ble Dr. B.S.Chauhan, J.

This writ petition has been filed against the impugned no claim Award made by the Labour Court dated 12th February, 1997.

Facts and circumstances giving rise to this case are that petitioner had been working as Conductor with the respondent corporation and on 25.10.1987 while he was taking the bus from Maheba to Allahabad it was checked by the checking staff and 23 and-a-half passengers were found without ticket, from whom he had charged the fare but did not issue the tickets. On this allegation domestic enquiry was held and he was dismissed from service vide order dated 8.12.1988. Subsequently, petitioner raised the industrial dispute, and the appropriate Government in exercise of the powers under Section 4-K of the Industrial Disputes Act, 1947 (hereinafter called the Act 1947) made a reference as to whether termination of services of the petitioner w.e.f. 8.12.1988 was in accordance with law, and if not, to what relief he was entitled to?. In pursuance of the same claim petition was filed contending that the enquiry had not been held in accordance with law. He had not been given opportunity to defend himself properly, punishment was too harsh, and therefore, the order of his dismissal stands vitiated.

On the contrary, the management contested the case that enquiry was held in accordance with law and as the serious charge of embezzlement was proved no punishment other than dismissal could be awarded. After appreciating the evidence led by the parties the Labour Court recorded the findings that domestic enquiry held by the Corporation against the petitioner workman was in accordance with law and there was no violation of the provisions of any statute or principles of natural justice. Workman had been given full opportunity to defend himself and the enquiry officer has rightly held that he was found carrying passengers without tickets from whom he had charged the fare, and in view of the above, Labour Court made the no claim award dated 12th February, 1997. Hence this petition.

Shri Anil Kumar Srivastava, learned counsel for the petitioner has raised the submission that the Labour Court has committed error not setting aside the order of dismissal and further as the punishment of dismissal was too harsh, for a petty sum of Rs.72/- only it ought to have substituted with the punishment of lesser gravity. It has vehemently been submitted by Mr. Srivastava that as no passengers who had paid the fare and had not been issued the tickets had been examined. Therefore, the findings recorded by the Enquiry Officer were liable to be set aside and petition deserves to be allowed.

On the contrary, Shri Sameer Sharma, learned counsel appearing for the Corporation has submitted that it is not the petty amount of Rs. 72/-, which is material to determine the quantum of punishment. In fact, it is the intention of the workman and loss of confidence of the employer in him, and once the Labour Court came to the conclusion that the enquiry had been held in accordance with law, the Labour Court has rightly made the no claim award.

I have considered the rival submissions made by the learned counsel for the parties and have perused the record and the first issue as to whether for an embezzlement of a petty amount of Rs.72/- the punishment of dismissal is warranted.

In Ruston & Hornsby (I) Ltd. Vs. T.B. Kadam, AIR 1975 SC 2025, the workman faced the charge of suspected dishonesty in connection with company's property. The Hon'ble Supreme Court held that the workman "being a Watchman, the charge is serious one and if it was held proved he deserves nothing short of dismissal.                      

Dealing with a similar situation the Apex Court in Municipal Corporation, Bahadurgarh  Vs. Krishnan Bihari  & ors., AIR 1996 SC 1249, held  as under:-

"In a case of such nature, in deed, in cases involving corruption, there can be no other punishment than dismissal. Any sympathy shown in such cases is totally uncalled   for and   opposed to   public interest.   The amount misappropriated may be small or large; it is the act of misappropriation that is relevant. The Director had interfered in the punishment under a total misapprehension of relevant factors to be borne in mind in such a case."  

Similar view has been taken by the Hon'ble Supreme Court in U.P. State  Road  Transport Corporation Vs. Vasu Deo Chaudhary & Anr., (1997) 11 SCC 370,  wherein the Court held that in a case of misappropriation,  dismissal  from service  was justified  by  the Corporation.  Placing  reliance  upon the  said judgment in Krishnan Bihari  (supra) and Vasu Deo Chaudhary (supra), the Supreme Court, in Janatha Bazar South Kanara Central Cooperative  Wholesale  Stores  Ltd.  & ors.   Vs. Secretary, Sahakari  Noukarara  Sangha & ors., (2000)  7  SCC 517, reiterated  the same view, observing that  in  case of breach  of  trust and misappropriation  of funds, once  the charge stood proved, interference by courts,  showing  uncalled   for  sympathy,  is totally unwarranted  as  it is a case of  loss  of confidence of the employer that the employee would truthfully  and  faithfully carry on his  duty  in future.

In Karnataka State Road Transport Corporation Vs. B.S.  Hullikatty, JT 2001 (2) SC 72, the Hon'ble Supreme Court considered a case where the bus Conductor had charged a fare of Rs. 2.25 and   issued   the ticket    of Rs.1.75 and misappropriated fifty paise, the Apex Court held that the appropriate punishment in that case should be dismissal from service.

Similar view has been reiterated by the Hon'ble Supreme Court in Regional Manager, R.S.R.T.C. v. Ghanshyam Sharma, JT 2001 (10) SC 12.

Thus, it is not the quantum involved in embezzlement but it is the essence of mens rea involved therein which is a determining factor for imposing the punishment. In a case of this nature no punishment other than dismissal from service could be imposed.

Even otherwise the Labour Court cannot generally interfere with the quantum of punishment, if it comes to the conclusion that domestic enquiry had been held fairly in accordance with law.  

In view of the provisions of Section 6(2-A) of the Act 1947 Labour Court is competent to set aside the discharge or dismissal and reinstate the workman and competent also to substitute any of lesser punishment for discharge or dismissal, as the circumstances of the case may require. The issue of jurisdiction of the Industrial Tribunal/Labour Court to interfere with the quantum of punishment has been considered by the Hon'ble Apex Court time and again and it has categorically been held that generally Tribunal should not interfere with the same but in exceptional circumstances where the punishment is so harsh as to suggest victimization and found not to be commensurate with the degree of guilt, interference is permissible. For such interference, the Industrial Tribunal must record reasons as the award is subject to judicial review in writ jurisdiction. (Vide The Workmen of M/S Firestone Tyre & Rubber Co. of India P. Ltd. Vs. The Management & ors. , AIR 1973 SC 1227; Rama Kant Misra vs. State of U.P. & ors., AIR 1982 SC 1552; Management of Hindustan Machine Tools Ltd.  Vs. Mohd. Usman & Anr., (1984) 1 SCC 152; Ved Prakash Gupta  M/S Delton Cable India (P) Ltd., AIR 1984 SC 914; Christian Medical College, Hospital Employees' Union & Anr. Vs. Christian Medical College, Veelore Association & ors., (1987) 4 SCC 691; and Workmen Vs. Bharat Fritz Werner (P) Ltd. & Anr., (1990) 3 SCC 565).

In Llyods Bank Ltd. Vs. Panna Lal Gupta, AIR 1967 SC 428 the Supreme Court held that Tribunal should interfere with the punishment only if the conduct of the employer shows lack of bona fides or victimization of employee or unfair labour practice. In Hind Construction & Engineering Company Ltd. Vs. Their workmen AIR 1965 SC 917 the Hon'ble Apex Court held as under:-

"The Tribunal may in a strong case interfere with a basic error on a point of fact or a perverse finding but it cannot substitute its own appraisal of the evidence for that of the officer conducting the domestic enquiry though it may interfere where the principles of natural justice or fair play have not been followed or where the enquiry is so perverted in its procedure as to amount to no enquiry at all.............. The tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe. But where the punishment is shockingly disproportionate regard being had to the particular conduct and the past record or is such as no reasonable employer would ever impose in like circumstances, the tribunal may treat the imposition of such punishment as itself showing  victimization or unfair labour practice........"

In Janatha Bazar etc. Vs. The Secretary, Sahakari Noukarara Sangha etc. , 2000 (87) FLR 483 the Hon'ble Supreme Court held that where the Labour Court comes to the specific finding of fact that charges of breach of trust and misappropriation of goods had been clearly proved, the Labour Court cannot set aside the order of removal of workman and pass the order of reinstatement.

In the instant case there was no scope for the Labour Court to substitute the punishment of dismissal by withholding two annual grade increments and that too without cumulative effect.

 Mr. Srivastava, learned counsel appearing for the petitioner insisted that it is a fit case for judicial review by this Court on the ground that the findings of fact recorded by the learned Labour Court as well as in the enquiry were perverse and as in the enquiry, the statement of passengers who were found travelling without ticket had not been recorded, the charge could not have been  held proved.  In support of his contention reliance  can be placed  upon  the judgment  of  the Punjab & Haryana High Court  in State of  Haryana  v.  Mohan Singh, 1985 (1)  SLJ 597 wherein  it had been held that the punishment cannot be  imposed  on the testimony of  checking inspector  who had neither recorded the statement of passengers who paid the fair.

But there is  no force in this submission as the instant case stands fully covered by the judgment of the Hon'ble  Supreme Court in State of Haryana & Anr.  v.   Rattan  Singh  AIR 1977 SC  1512  as while deciding  the case in Mohan Singh  (supra), the Punjab  &  Haryana High Court had  not  taken note of the   said  judgment    wherein   similar contention  has  been  repelled  by  the  Hon'ble Supreme Court observing as under:-

"It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent   mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexux and credibility. It is true that 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  Indian Evidence  Act...   ...  The essence of  a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural  justice.  Of course, fairplay is the   basis   and    if   perversity   or arbitrariness,  bias  or   surrender   or independence  of  judgment   vitiate  the conclusions  reached, such finding,  even though  of a domestic tribunal, cannot be held  good.   However, the  courts  below misdirected   themselves,   perhaps,   in insisting that passengers who had come in and gone out should be chased and brought before   the  tribunal   before  a  valid finding   could  be   recorded....    ... Absence  of any evidence in suuport of  a finding  is  certainly available for  the court  to look into because it amounts to an  error of law apparent on the  record. We  find, in this case, that the evidence of  Chamanlal,  Inspector of  the  flying squad,   is  some   evidence  which   has relevance  to the charge levelled against the  respondent.  Therefore we are unable to hold that the order is invalid on that ground."

The Court further observed as under:-

"We cannot held that merely because statements of passengers were   not recorded  the  order  that  followed  was invalid.   Likewise, the re-evaluation of the   evidence   on   the   strength   of co-conductor's  testimony is a matter not for  the court but for the administrative tribunal.  In conclusion, we do not think the   courts   below    were   right   in over-turning the finding of the domestic tribunal"

Thus, the contention raised by Shri Srivastava is preposterous.  I also do not find any force in the submission made by Shri Srivastava that in the instant case quantum of punishment is disproportionate to the delinquency.  As per the findings recorded by the Enquiry Officer, the petitioner had charged fair from passengers and did not issue them tickets. It was a clear-cut case of embezzlement and misappropriation. The department had taken a very lenient view as no criminal case has been launched against the petitioner.

Petition is devoid of any merit and is, accordingly, dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.`

3.4.2003

AKSI


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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