V.P. Mohan Kumar, J.
1. Annexure A Award passed by the Labour Court is under challenge by the employer. The worker, a Conductor, was conducting the bus belonging to the employer on October 8, 1976. When it was checked, it was discovered that the worker had not issued tickets of 25 paise denomination to two passengers and had willfully not accounted 10 tickets of 45 paise denomination. An enquiry was held and the worker was found guilty of charges. He was dismissed from service. An appeal preferred by him was unsuccessful. The dispute thereafter was referred to the Labour Court.
2. The worker filed a claim statement setting forth his claims and inter alia contended that the domestic enquiry is invalid. The employer filed the counter statement as well. It was contended by them inter alia that the worker was involved in 147 previous instances of default. Minor punishments such as fine, warning censure suspension etc. were imposed on him. It was contended that the domestic enquiry was valid. The punishment was imposed by the disciplinary authority after independently considering the domestic enquiry report as well as other circumstances. The appeal preferred by the worker was also considered properly and disposed of. The reference, it was contended, was belated. The employer sought to sustain the dismissal on these and other grounds.
3. The worker conceded the validity of the domestic enquiry. The Labour Court, therefore, examined the question whether the punishment imposed is proportionate to the charges framed.
4. The Labour Court took the view that the revenue loss caused to the employer due to the default of the worker is 50 paise and that the imposition of punishment of dismissal is too harsh. It adverted to the fact that there were as many as 146 previous defaults on the part of the worker but nevertheless the imposition of the punishment of dismissal is a severe punishment. On this view, it set aside the order of dismissal and directed reinstatement of the worker with full back-wages and continuity of service. This award is challenged in these proceedings.
5. Learned counsel for the petitioner has contended that the interference by the Labour Court with respect to the quantum of punishment imposed by the employer is illegal. It was observed by the Supreme Court in Workmen of Firestone Tyre & Rubber Co. v. The Management & Others (1973-I-LLJ-278) as follows at page 295.
“… What was once largely in the realm of the satisfaction of the employer has ceased to be so, and now it is the satisfaction of the Tribunal that finally decides the matter”.
Hence, the Tribunal while it exercises its power under Section 11A of the I.D.Act is competent to re-examine the propriety of the punishment awarded to the delinquent worker vis-a-vis the misconduct.
6. In this case, the misconduct for which the extreme punishment visited the worker is causing a very negligible loss to the employer. A serious question that arises in such cases would be, besides the legality of the punishment, the morality of imposing such a sever punishment as well. While imposing a punishment the employer should first consider whether the delinquent committed the offence with intent to make unlawful gain and to pilfer the revenue of the employer. Was it with intention to gain 50 paise that the worker committed the present misconduct? Was he in such a deprived circumstance that he desired to make an illegal gain of a trivial amount of 50 paise? What was the number of passengers travelling in the bus and is it possible that he would have accidentally omitted to issue tickets? is it not possible that while he was in the process of issuing tickets, the two persons might have boarded the bus? In several cases we come across, such omission takes place in buses loaded with more than the permitted number of passengers. Such may be cases of human error committed by the Conductor while issuing tickets to passengers travelling in a bus with passengers much more than the permitted number. The disciplinary authority should keep in mind all facts of the problem before it awards the extreme penalty of dismissal.
7. A misconduct like the above on several instances are not committed intentinally. It is too much to imagine that a worker would have omitted to issue tickets deliberately to gain few rupees at the risk of his job. More often, it is due to the crowd in the bus that he misses to issue tickets than a desire by him to gain few rupees. The catastrophe that may befall is more serious than what is sought to be prevented. First it visits the employee. He is rendered jobless. It generates a litigation which in the present pattern spreads over years producing ultimately a disgruntled employee. Actually the real victim of any such punishment is the family of the worker whose bread-winner is jobless. The future is rendered bleak to them and it in its turn causes greater hardship to the society than it intended to cure.
8. That apart, the management also shares the losses in another way. When the worker is dismissed, someone else will have to be placed in his place to discharge the duties. And if the worker is ordered to be reinstated ultimately with back-wages virtually there will be double payment i.e, two persons would have to be paid for a single Job. In the case of a public sector * undertaking the loss is passed on to the common man, the tax payer.
9. The question then would be in the case of a conductor (as in the instant case) who has a past history, should the employer ignore the same? This is a case, the remedy for which the employer himself should discover and the solution is not far to discover. In the case of a ticketless traveller the management has designed a method to curb the same by imposing fine on them. The object with which this is done is so that he may not repeat travelling in the bus without tickets. This method can certainly be considered of imposing of penalty on the Conductor himself who is discovered to be intentionally pilfering the revenue of the Corporation.
10. We may notice that all these cases of non-issue of tickets, we may take note of the fact that there are two parties joining to commit the misconduct, i.e., the Conductor and the passenger. If the conductor wants to make an unlawful gain, then he has to collect the fare and fail to issue tickets. In such an event, the passenger who boards the bus must co-operative with the conductor. If he has to co-operate, then he should be familiar to the conductor and he should agree to be a party to commit the misconduct at the risk of paying penalty in the event of being caught by the inspecting staff. It is too much to imagine that the conductor will hatch a conspiracy to pilfer revenue of the Corporation as and when stray passengers board the bus at various stages. If the conductor wants to make an illegal gain by the omission to issue tickets, the passenger has to be condescending party. This is really unlikely. Hence, the benefit of doubt in cases of stray lapses should be that the omission to issue tickets may be accidental.
11. Hence the disciplinary authority should reserve the punishment of dismissal only in extreme cases. It is where the exercise of discretion by the disciplinary authority steps in. It cannot and should not act like a robot, its justice should be moulded with humanism and understanding. It should really assess each case on its own merit. The fact that on a past occasion the delinquent might have acted in a particular manner does to mean that on the particular occasion as well he would have acted with intent to cause loss to the employer. Each set of fact should be decided with reference to evidence regarding the said allegations and those allegations should be the basis of the decision. May be, the past conduct of the worker may be a ground to assume that the delinquent may have had propensity to commit the misconduct and to assess the quantum of punishment to be imposed. But that by itself cannot provide any foundation to hold that the present conduct of the worker is a misconduct.
12. In this case admittedly there is default numbering 146 with respect to which the employer had occasion to impose punishment. This is not a disputed fact as well. May be the charges with respect to the above said default would be innocuous or minor. In several cases it may not be the intention of the petitioner to commit any misconduct. He might have admitted the guilt as well to avoid protracted proceedings. As can be seen from the history sheet produced, in several cases, one or two passengers were not issued with tickets. One cannot say that this was done with the intention of gaining the money involved. If so, it would be harsh to take those circumstances as well while moulding the punishment. But it must be stated that in this case the facts clearly spell out that the worker had been negligent in discharging his duties. Hence the Labour Court will not be justified in awarding full back-wages to the worker who has shown total indiffrentce to his duties. Admittedly the dismissal order was passed on October 28, 1980. The Reference application came before the Labour Court only May 21, 1987. It is admitted that the domestic enquiry was held valid and proper and a memo was filed by the worker in this behalf. Taking into account all these circumstances this Court would be justified in restricting the back- wages payable to the worker from the date of receipt of the Reference, i.e, on May 21, 1987. He will be entitled to seniority from the date of his termination. The order of reinstatement made by the Labour Court is confirmed.
13. With the above modification, the writ Petition is disposed of. There will be no order as to costs.