JUDGMENT
S.T. Kharche, J.
1. By invoking the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner Divisional Controller, M.S.R.T.C. has challenged the order dated 9.7.1991 passed by the learned Member, Industrial Court in revision U.L.P.A. No. 62 of 1986 whereby the revision is allowed and the order passed by the Labour Court directing reinstatement of the respondent in service with continuity of service and back wages was set aside,
2. Relevant facts are as under :
The respondent was employee as a conductor with the petitioner-Corporation. On 15.3.1982 he was on duty on the route of Golai to Akot. The S.T. Bus No. 9865 was scheduled on that route. The checking staff had surprisingly checked the tickets of the passengers of the said S.T. Bus at Khatkali spot and found that the respondent had recovered Rs. 3.50 from four passengers each when they boarded the bus at Golai. Those four passengers were travelling from Golai to Khatkali and on checking the tickets which they were having, it was found that the respondent had issued tickets of denomination of Rs. 1.20 though fare @ Rs. 3.50 was recovered from each passenger. The checking staff found that two passengers were travelling from Dhargad to Akot with three gunny bags of food grains and the respondent had recovered Rs. 40/- from these two passengers towards the fare and inspite of recovery of the same, the respondent had issued them two tickets for the denomination of Rs. 0.90. The respondent did not issue luggage tickets to those passengers though he had recovered the fare. The cash with the respondent was also checked and it was found that the amount of Rs. 11.50 was in excess and the waybill was not filled up. The checking staff then made a report to the higher authorities on 12.4.1982. After making preliminary enquiry, charge-sheet was served to the respondent on 20.4.1982 and thereafter regular departmental enquiry was held in accordance with the rules. The contention of the respondent was also considered who had taken the defence that he had issued four tickets of denomination of Rs. 1.20 to those four passengers who were travelling in the bus from Dhargad to Khatkali and two passengers were travelling from Dhargad to Akot and they were having luggage of one bag of wheat and two bags of gram from whom the amount of Rs. 9.80 was collected on account of ticket and when he was about to issue the tickets for luggage, the checking staff entered the bus. The respondent also contended that those two passengers did not pay for the luggage en route and they had paid that amount of luggage when the bus was about to reach Khatkali fata.
3. During the course of enquiry, it was found that the charges against the respondent were duly proved and therefore, the petitioner-Corporation after following the prescribed procedure, dismissed the respondent on 7.6.1984. Being aggrieved by the order of dismissal, the respondent had filed complaint before the Labour Court which was registered as complaint U.L.P.A. No. 103 of 1984. The Labour Court considered the evidence which was recorded during the course of enquiry and on hearing the learned Counsel for the parties had dismissed the complaint on 27.3.1986 holding that the charges against the respondent were proved and the punishment imposed was not disproportionate to the gravity of the charges. The respondent carried the matter in revision before the Industrial Court which was registered as Revision U.L.P.A. No. 62 of 1986. The Industrial Court on appreciation of the evidence and considering the facts and circumstances, allowed the revision and directed reinstatement of the respondent with continuity of service and back wages. This is how the respondent is before this Court.
4. Mr. Wankhede, the learned Counsel for the petitioner contended that the Labour Court recorded correct findings on appreciation of documentary as well as oral evidence adduced during the course of departmental enquiry and found that the charges of misappropriation have been proved against the respondent. He contended that the Industrial Court has misappreciated the evidence recorded by the Enquiry Officer during the course of the enquiry in coming to the conclusion that the charges are not proved against the respondent since the four passengers whose statements were recorded by the checking staff were not examined. He contended that when the cash with the respondent was checked, it was found in excess of Rs. 11.50 and moreover, the respondent though collected Rs. 40/- from the two passengers who were carrying luggage, he did not issue luggage tickets to them. He contended that the Industrial Court had no jurisdiction to reappreciate the evidence in view of Section 44 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, the M.R.T.U. & P.U.L.P. Act). In support of these submissions, he relied on the Single Bench decision of this Court in Divisional Controller, M.S.R.T.C. Division Office v. V.V. Parwatkar 1998 (I) C.L.R. 1245. He also relied on unreported decision of this Court in Writ Petition No. 956 of 1996 decided on 22.10.1997.
5. Mr. Wankhede further contended that as per the Revised Discipline and Appeal Procedure, the punishment awarded to the respondent was not disproportionate to the gravity of the charge. He pointed out that the respondent was found to have committed misappropriation, fraud, dishonesty in connection with the business or the property of the Corporation as per Item 12(b) of Schedule ‘A’ of the Revised Discipline & Appeal Procedure for which the only punishment provided is dismissal as per the proviso to Clause 7. He further contended that in such circumstances the impugned order passed by the Industrial Court cannot be sustained in law, and therefore, the same be set aside and the order passed by the Labour Court be restored.
6. Mr. Khan, the learned Counsel for the respondent contended that four passengers had boarded into the bus to whom four tickets of denomination of Rs. 1.50 were issued. He contended that those four passengers were travelling from Dhargad to Khatkali. He further contended that other two passengers who were carrying luggage with them, did not initially pay the luggage charges and when they had paid it, the bus was about to reach Khatkali, luggage tickets were being issued, but at the same time the bus was checked, and therefore, the luggage tickets could not be issued. He contended that Industrial Court was perfectly justified in appreciating and reassessing the evidence especially when the appreciation of evidence by the Labour Court was found to be perverse. He contended that the Industrial Court was perfectly within its jurisdiction by exercising powers under Section 44 of the M.R.T.U. & P.U.L.P. Act. In support of these submissions, he relied on the Single Bench decision of this Court in the case of Hotel Oberoi Towers v. Gopol Naidu 2002 (94) F.L.R. 779 the Division Bench decision of this Court in the case of Vikas Textiles v. Sarva Shramik Sangh 1991 (II) L.L.J. 451 : 1990 (I) C.L.R. 872 : 1990 F.L.R. (60) 630 and also on the decision of Single Bench of this Court in the case of Sadanand Rule Samsi v. Kirloskar Cummins Ltd. and Ors. 2003 (I) C.L.R. 50 : 105 (2) Bom. L.R. 171 and in the case of C.M. Deshmukh v. Board of Trustees, Port of Bombay 1995 Lab. I.C. 1496.
7. Mr. Khan further contended that during the course of the enquiry against the respondent, four passengers whose statements were recorded by the checking staff were not. examined nor the respondent had got any opportunity for cross-examination of those four witnesses who are stated to be the passengers to whom the tickets of less denomination of Rs. 1.50 were issued instead of tickets of denomination of Rs. 3.50. He contended that. Industrial Court was perfectly justified in coming to the conclusion that the evidence of two officers of the checking staff would not be sufficient to bring home the charge, as they were interested witnesses, and therefore, there is violation of the principles of natural justice. In support of these submissions, he relied on the decision of Hon’ble Supreme Court in the case of S.C. Girotra v. United Commercial Bank and Ors. 1996 (I) L.L.J. 10 : 1995 (Supp.) 3 SCC 212 : 1995 (30) A.T.C. 627 : 1996 (1) L.L.N. 26.
8. Mr. Khan also contended that the respondent was found to have collected the excess fare from the batch of four passengers and issued the tickets of lower denominations to them and this would not amount to a major misconduct so as to invite the punishment dismissal. He pointed out that the excess cash found with the respondent was only Rs. 11.50 and if the excess cash up to Rs. 25/- is found with the conductor, then the same would be treated as minor lapses and delinquencies and the punishment provided for that would not be a dismissal or removal from the service. He further contended that if this Court comes to the conclusion that the charge against the respondent: has been proved, then subsequent events may kindly be taken into consideration. The respondent has been reinstated in service on 15.7.1991 and during the period of last ten years there is no repetition of the same kind of misconduct, and therefore, his services may be protected without payment of back wages.
9. I have given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. It is not disputed that the respondent was assigned duty on the S.T. Bus on 15.3.1982 and the S.T. Bus was scheduled from Golai to Khatkali. The S.T. Bus came to be checked on that day at Khatkali diversion. It is also not disputed that four passengers were travelling in the bus to whom the tickets of the denomination of Rs. 1.20 were issued. Those ticket numbers were 472337 to 472343 Le. in all seven tickets. It is also not disputed that the fare which was to be collected for travelling the distance from Golai to Khatkali was Rs. 3.50. It is also not disputed that the conductor is supposed to fill in the waybill. The waybill was also checked by the officers of the checking staff and it was found that it was not filled after some entries. The officer of the checking staff has put endorsement in red ink on the waybill on the same day at the spot of incident which indicate that four passengers had boarded at Golai and when they were getting down from the bus at Khatkali, the tickets of the denomination of Rs. 1.20 were found to have been issued to them instead of issuing tickets of the denomination of Rs. 3.50. Similarly, the entry has been recorded on the waybill that another two passengers were carrying luggage with them and they had paid Rs. 40/- to the respondent-conductor, but those two passengers could not produce the luggage tickets. The tickets which were produced by those two passengers who were carrying luggage, were for Rs. 9.50. Needless to mention that, entries in the waybill and the endorsement put up on the waybill could be made admissible in evidence, and therefore, it would lead to the conclusion that four passengers had boarded at Golai from which town the bus was scheduled for Khatkali, It is also the fact that those four passengers were having seven tickets of the denomination of Rs. 1.20 which were costing Rs. 8.40. The respondent conductor in such circumstances, when the bus had travelled the distance from Golai to Khatkali, had ample time to issue the tickets of correct denomination, but instead he issued seven tickets of the denomination of Rs. 1.20 for which there is no explanation as to why when the fair from Golai to Khatkali was Rs. 3.50, the respondent-conductor Issued the tickets of the denomination of Rs. 1.20 instead of collecting total amount of Rs. 14/- as the fare of four passengers from Golai to Khatkali.
10. The respondent-conductor admitted in his spontaneous statement made on 15.3.1982 at. the spot that four passengers boarded into the bus to whom tickets were issued and two passengers who were travelling to Dhargad to Akot were having luggage of one bag wheat and two bags of gram and the respondent has collected Rs. 9.80 from them and that he was about to issue tickets for luggage, the bus was checked. This defence of the respondent cannot be accepted for the simple reason that the respondent-conductor was found to have collected the amount of freight charges not according to the prescribed rates. If the respondent would have collected the fair charges, then the amount of Rs. 11.50 would not have been found excess in the cash amount which was with the respondent-conductor. These circumstances have been taken into consideration by the Labour Court, and therefore, rightly recorded the findings that the charge of misconduct has been duly proved.
11. The Industrial Court reappreciated the evidence and allowed the revision mainly on the ground that those four passengers who were travelling in the bus were not examined during the course of the enquiry though their statements were recorded by the officer of the checking staff. The Industrial Court also considered the minor discrepancies in relation to the weight of the luggage and the minor contradictions in the statements of the officers of the checking staff and recorded finding that the charge against the respondent has not been proved. I was taken through the order passed by the Industrial Court and it would reveal that the findings of the Industrial Court is based on the surmises and conjectures. The Industrial Court has conveniently ignored the documents in the nature of tickets, waybill, the entries recorded in the waybill, excess amount of cash found with the respondent, etc. It is pertinent to note that there is no explanation from the side of the respondent as to how the cash was found in excess and how the tickets of the less denominations were issued to the four passengers who boarded in the bus at Golai itself from which the departure bus was scheduled. Therefore, simply because four illiterate passengers have not been examined during the course of the enquiry, that would not impair the evidentiary value of the documents on which reliance has been placed by the Enquiry Officer and the Labour Court also rightly confirmed the findings of the Enquiry Officer.
12. Mr. Wankhede, the learned Counsel for the petitioner-Corporation rightly relied on the decision of the Supreme Court in the case of State of Haryana v. Rattan Singh wherein it has been held that: “In a domestic enquiry the strict and sophisticated rules of evidence under the 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 nexus and credibility. The 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 sufficiency of evidence, in proof of the finding by a domestic Tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the record.
Where a bus conductor of a State Transport undertaking was charge-sheeted for not collecting fares from certain passengers and on his guilt being established there was simple termination of his services because of his long services and young age. it could not be said that merely because statements of passengers were not recorded by the Inspector of the flying squad, the order that followed was invalid. The evidence of the Inspector was some evidence which had relevance to the charge against the bus conductor; order of simple termination of services was valid.”
13. This Court is of the; considered opinion that the charges levelled against the respondent-conductor have been duly proved. That takes this Court to consider the question about the punishment. The respondent-conductor was charged and the enquiry was held as per the Revised Discipline and Appeal Procedure. Item 12(b) of the Schedule ‘A’ contemplates that if a charge against the delinquent is proved for fraud, dishonesty or misappropriation in connection with the business or the property of the Corporation, then the punishment to be imposed on him as per the proviso to Clause 7 of the Revised Discipline and Appeal Procedure which contemplates that: “Provided that the punishment for any of the acts of misconduct mentioned at Items 4, 7(a) to (i), 12(a) and (b), 39, 42 of the Schedule ‘A’ shall be either discharge or dismissal from services of the Corporation. However, it is also true that if the cash is found in excess of Rs. 25/- with the conductor as per Item 12 of Schedule ‘B’, then the punishment to be imposed as mentioned in Clause 7 is: (a) Warning (b) Reprimand (c) Fine upto 1 /10th of the pay. The respondent is found to have collected excess fair but issued the tickets of less denomination to them which would clearly show that he wanted to appropriate to his own use the remaining amount. So also there was no explanation from his side regarding the excess cash amount found with him. It is not his case that it was his personal cash. It would be obvious that the punishment of dismissal from services imposed by the petitioner-Corporation was statutorily correct.
14. However, the learned Counsel for the respondent pointed out that the Industrial Court directed the reinstatement of the respondent-employee by order dated 9.7.1991 and this Court refused to grant interim relief at the time of admission of this petition and consequently the respondent has been reinstated in the service as a conductor on 15.7.1991. He further contended that since then, 13 years have elapsed and if the respondent-conductor, at this stage is asked to leave the job, that will cause a great hardship not only to him but to his family members. He pointed out that Andhra Pradesh High Court has taken a view that in such circumstances, the punishment by withholding all backwages and all benefits attached to the service would meet the ends of justice. He relied on the Division Bench decision of Andhra Pradesh High Court in the case of Y.R. Shetti v. Depot Manager, A.P.S.R.T.C. 1996 Lab I.C. 1618. In that case the conductor had collected requisite fare of Rs. 40.60 from a batch of 7 passengers but issued tickets of lower denomination of Rs. 1/- worth Rs. 7/- to the said batch of 7 passengers who boarded the bus at Tadipatri bound for Jammalamadurgu ex. stage No. 25 to 7 which constitutes misconduct under Reg. 28(xxv) of the A.P.S.R.T.C. Employees Conduct Regulations, 1963. The Andhra Pradesh High Court observed in para 2 as under :
We are inclined for the reasons aforementioned, to modify the punishment by withholding all backwages and all benefits attached to the service except that the ends of justice shall be by reinstatement of the appellant to serve the remaining period of service. In case, however, any repetition of the above is shown it shall be open to the competent authority to take suitable action.
15. The present case is a peculiar case wherein the respondent has already been reinstated on 15.7.1991 and since then he is in service and there is no complaint from the side of the Corporation that any repetition of the misconduct has been noticed. Therefore, for the reasons mentioned above, this Court is of the considered opinion that ends of justice would be met if the period from the date of termination, i.e. 7.6.1984 till 15.7.1991 is to be treated as a period without back wages. However, on retirement, the respondent-Conductor shall be entitled to terminal benefits calculated on the basis of the last pay drawn and the status which he shall have at the time of the retirement and the Corporation shall be at liberty to impose any punishment upon him if he is found to repeat the misconduct or indulge in any other misconduct. With these directions the petition stands disposed of in the aforesaid terms.