JUDGMENT
Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity and legality of the Tribunal’s award dated 27.3.2003 holding that punishment given to the workman was not disproportionate to the misconduct and the inquiry conducted by the management was fair and proper.
2. Briefly the facts are that petitioner was working as a conductor with DTC with Badge No. 17060 and was posted on bus route No. 452 Mori Gate to Madanpur Khadar. On 5.9.92 when he was on this route, the said bus was checked by the checking staff and it was found that three passengers had given fare to him but he had not issued tickets. He was asked to get his cash checked but he refused to get his cash checked. Passengers to whom he had not issued tickets belonged to his village and they stated that they did not want to give statement against him.
3. A charge-sheet was issued to the petitioner for the misconduct to which he pleaded not guilty and an inquiry was conducted. Inquiry Officer held petitioner guilty of the misconduct. After inquiry, disciplinary authority heard the petitioner and imposed a punishment of dismissal. The previous record of the conductor showed that he had earlier also been involved in several misconducts and was given warnings/punishment for misconduct including the misconduct for not issuing tickets despite receiving fare.
4. He was found not having issued tickets after collecting full fares from six passengers in August, 1999 and was suspended, thereafter, he was awarded punishment of stopping of three increments with cumulative effect. He was again caught not issuing tickets after collecting fares and was suspended and then he was awarded punishment of dismissal which is subject matter of this writ petition.
5. The Tribunal came to the conclusion that the inquiry was conducted fairly petitioner participated in the inquiry, he signed all order-sheets of the inquiry, cross examined the witnesses. Tribunal also came to the conclusion that looking into the past conduct of the petitioner any other punishment would have amounted to giving a charter to him to indulge with impunity in mis-appropriation of public money.
6. The petitioner challenged the award on the ground that he was not heard on the legality and justification of punishment of termination of services, he was only heard on issue of inquiry was fair or not. It is also stated that management did not produce any documentary evidence of misconduct against him. The inquiry report was not an evidence itself. The findings of the Inquiry Officer were based on the report of Reporting Officer. The passengers, who were allegedly found without tickets after payment of fare, were not examined.
7. In Divisional Controller, KSRTC (NWKRTC) v. A.T.Mane , the Supreme Court had occasion to deal with the similar case where a conductor was guilty of misconduct not given tickets and was found in excess amount with him. The passengers involved in the case were not examined before the Inquiry Officer and inquiry report was given on the basis of the evidence of the persons who had conducted the raid. Supreme Court observed as under:
8. This Court in the case of State of Haryana v. Rattan Singh which is also a case arising out of non-issuance of ticket by a conductor held thus: (SCC pp. 491-92)
In a domestic enquiry all the strict and sophisticated rules of the 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 common-sense 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, the 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 the ticketless passengers. Also, merely because their 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 for the Tribunal to assess the evidence of the co-conductor.
9. From the above, it is clear that 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 is not a condition precedent. We may herein note that the judgment of this Court in Rattan Singh has since been followed by this Court in Devendra Swamy v. Karnataka SRTC .
10. Since the only ground on which the finding of the domestic tribunal has been set aside being the ground that the passengers concerned are not examined or their statements were not recorded, in spite of there being 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 applies squarely to the facts of this case.
11. 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 Rattan Singh 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.
12. 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 the corporation’s funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal.
13. This Court in the case of B.S.Kullikatti (2001) 2 SCC 574 : 2001 SCC (L and S) 469 held in 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 is 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.
8. There is no dispute that the petitioner had participated in the inquiry, cross examined the witnesses and the inquiry was conducted in proper manner following principles of natural justice. The Tribunal or this Court cannot sit over the findings of the Inquiry Officers as a court of appeal. Court has only to see that the Inquiry Officer has followed the broad principles of natural justice and there was some evidence on record to show that the conclusion arrived at were in accordance with the evidence. I, therefore, consider that the argument of the petitioner that Tribunal was supposed to re-appreciate the evidence examined before the Inquiry Officer is baseless. Similarly, non-examination of the passengers, who were found without ticket is of no consequence to the legality of the inquiry or the order of the Tribunal. The Inquiry Officers, the Tribunals and the Courts have to adopt pragmatic attitude. A passenger, who had paid fare and was not given ticket of Rs. 5/- or Rs. 10/- cannot be expected to come and spend days together by appearing as a witness before the Inquiry Officer or Tribunal. There is no reason why the members of raiding party or the inspector, who did checking should not be believed by the courts or the tribunals. In view of the law laid down by Supreme Court as stated above, I consider that this ground is not available to the petitioner to challenge the award.
9. As far as the proportionality of the punishment awarded to the petitioner, I consider that looking at the fact that petitioner was earlier also punished with lesser punishment for similar offence of taking fare and not issuing tickets, the punishment of removal from service is the only appropriate punishment. If, there would have been severe punishment the same should have been awarded to the petitioner. In my opinion, in such cases, the departments should assess the loss caused by the petitioner to the department by such misappropriation of funds and such loss should be recovered from the dues payable to the petitioner, after termination. Such cases do not deserve any leniency. Courts and tribunals cannot issue licenses for corruption by showering mercy at such people.
10. In view of the above discussion, I find no force in the petition and the same is hereby dismissed.
