JUDGMENT
S.B. Majage, J.
1. This appeal is filed by the appellant/Corporation, challenging the award passed by the Labour Court and order of the learned Single Judge in W.P. No. 5978 of 1999 in not interfering with that award.
2. With consent of both sides, taken for final hearing and heard. It is submitted for the appellant/Corporation that the Tribunal has wrongly held charge as not proved even though, by the documents produced and marked in the case, proved the charge and the learned Single Judge has also failed to appreciate the same and consequently, interference is required. On the other hand, the learned Counsel for the respondent/workman supported the impugned order passed by the learned Single Judge. Perused the records carefully.
3. Facts, which gave rise to the present appeal, are: The respondent, while working as conductor under the appellant, was subjected to domestic enquiry on the charge of not issuing tickets to 6 passengers despite collection of fare from them on 21-8-1992. On proof of the same, he was dismissed from service by the Disciplinary Authority. So, he raised an industrial dispute before the Labour Court, which held charge as not proved and set aside the order of dismissal of respondent from service and directed the Corporation to reinstate him into service with 50% of back wages and continuity of service. Aggrieved by the entire award, the Corporation filed W.P. No. 5978 of 1999 whereas, the respondent filed W.P. No. 6774 of 1999 challenging refusal of 50% of back wages to him. However, by a common order, both the petitions came to be dismissed by the learned Single Judge. Hence, this intra-Court appeal by the Corporation only.
4. In the present case, the domestic enquiry conducted against the respondent was held to be not fair and proper. Admittedly, thereafter, no witness was examined either for the Corporation or for the respondent. However, as the documents filed by the Corporation had been marked as exhibits, they were considered by the Tribunal and then concluded that collection of fare by respondent has not been proved though observed that the respondent had not issued tickets to 6 passengers. In spite of that, on the ground that the Corporation failed to adduce any evidence after the domestic enquiry was held as not fair and proper, the learned Single Judge did not disturb that finding of the Labour Court. The learned Counsel for the respondent supported the same. According to him, the Tribunal was not right in considering the documents marked as exhibits in the case, when no witness was examined before it and relied on the decisions in Sait Tarajee Khimchand and Ors. v. Yelamarti Satyam and Ors., MR 1971 SC 1865 and Sanjay Cotton Company, Partnership Firm, Akola v. Omprakash Shioprakash and Anr., . On the other hand, it is submitted for the Corporation that when the documents have been marked as exhibits with consent, they could not have been ignored by the Tribunal and as such, they were rightly considered by it, but the learned Single Judge wrongly taken that no evidence was adduced by the Corporation. So, what requires to be considered is, whether the documents marked as exhibits could have been considered by the Tribunal and, if so, whether its finding is correct or perverse.
5. It is true that in the case of Sait Tarajee Khimchand, supra, the Supreme Court has observed that mere marking of document as an exhibit does not dispense with its proof, but that observation requires to be considered in the facts of that given case and context under which it was made. It need not be said that factual contents of a decision must be kept in mind before reliance is placed on any judgment. In this connection, reference can be had to the following observation made by the Supreme Court in the case of Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr., :
“19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid’s theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes”.
It is further observed that:
“21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
22. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
“Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive” “.
6. So, when seen the facts and context in which the observation was made in the case of Sait Tarajee, supra and also in the decision of Bombay High Court relied on for the respondent, they do not come to the aid of respondent to hold that the documents marked as exhibits in this case were not to be considered by the Tribunal, when even genuineness of those documents was also not in question. Same can be said even to the decisions of Supreme Court in K.N. Baruka v. Management of Budlabete Tea Estate (sic), Bareilly Electricity Supply Company Limited v. The Workmen and Ors., , Motor Industries Company Limited v. Adinarayanappa and Anr., 1978(1) Kar. L.J. 245 : 1978-II-LLJ-443 (Kar.) and Neeta Kaplish v. Presiding Officer, Labour Court and Anr., , relied on for the respondent.
7. Now, reference can also be had to the decision in the case of State of Haryana and Anr. v. Rattan Singh, , wherein the Supreme Court has held 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 nexus 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”.
It has further observed that:
“The simple point is, was there some evidence or was there no evidence — not in the sense of the technical rules governing regular Court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic Tribunal is beyond scrutiny”
(emphasis supplied)
In the above view of the matter, the documents produced and marked in the case could be considered as evidence and as such, the learned Single Judge was not right in observing that there was no evidence on behalf of the Corporation. So, no infirmity can be found in considering those documents by the Tribunal.
8. However, on the grounds that, (1) group leader and ticketless passengers were not examined; (2) cash with conductor was not checked; (3) statements of ticketless passengers in printed form and filled up is not substantive evidence; and (4) amount involved was Rs. 30/-, the Tribunal held collection of fare from 6 passengers as not proved, though held that the respondent had not issued tickets to 6 passengers and consequently, set aside the order of dismissal. It is the correctness of the said finding, which is in question.
9. So far as non-examination of group leader is concerned, that group leader was not at all in the bus when the bus was checked. Further, according to the Corporation, there were only 6 ticketless passengers and not 7 ticketless passengers. It was the defence of the respondent that there was a group leader, who got down with tickets before the stage came and as such 6 passengers were found without tickets in the bus when it was checked. So, it was for the respondent to examine that alleged group leader and not for the Corporation to prove the defence of the respondent when, according to it, the respondent had not issued tickets to 6 passengers only found in the bus. So, non-examination of the group leader alleged could not be a ground to disbelieve the charge levelled against the respondent that the respondent had not issued tickets to 6 passengers despite collection of fare from them.
10. Regarding non-examination of ticketless passengers and not checking cash available with respondent, they are no more res Integra. In the case of Rattan Singh, supra, the Supreme Court has observed that;
“the Courts below had misdirected themselves, 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”.
In fact, in the case of North West Karnataka Road Transport Corporation, Hubli and Anr. v. S.S. Poleshi, 2000(4) Kar. L.J. 538 (DB), referring the said decision of the Supreme Court, a Division Bench of this Court has held as under:
“13. In our opinion, keeping in view the law laid down by the Supreme Court and the standard or extent of evidence which is required to be led in by the disciplinary proceedings in relation to the charge of non-issuance of tickets despite collection of fares from the passengers for proved misconduct of pilferage’ and past history records of the respondent and non-examination of passengers during the domestic enquiry or before the Labour Court in case the enquiry is found to be defective cannot be taken to be a ground for disproving the charge. Similarly, non-counting of cash available with the conductor as well cannot be held to be of any relevance in relation to the said charge”.
(emphasis supplied)
11. Similarly, the fact that statement of passengers was in the printed form could not have been a ground, not to act on it when it was not the case of respondent that statement of ticketless passengers was not recorded. In fact, the workman has not examined himself in the case, though it is true that the Corporation did not examine any witness. If the respondent had entered into witness-box and stated that no such statement of passengers was recorded in his presence or, that ticketless passengers were not at all examined or, that there was a group leader for a group of 7 persons and out of them, one got down earlier with tickets with him and as such, 6 passengers were found ticketless, the matter would have been different, but not now.
12. If, really, tickets had been issued to 7 passengers (including 6 ticketless passengers found by the checking squad) and the leader of that group had alighted earlier with the tickets with him, leaving 6 passengers in the bus without tickets (as contended by the respondent), with reference to waybill, the respondent could have shown the number of tickets issued for the stage at which 6 ticketless passengers were to be alighted. This is because the waybill shows number of passengers to whom tickets are issued for each stage. So, based on that and number of passengers present with tickets in the bus, the respondent could have substantiated that, in fact, he had issued tickets to those 6 passengers plus one more passenger (who alighted earlier with tickets). However, for reasons best known to him, he did not do so. This also comes against him and corroborates the case of the Corporation.
13. So far as the amount involved is concerned, it may be noted that in the case of Janatha Bazaar (South Kanara Central Co-operative Wholesale Stores Limited), Mangalore and Ors. v. Secretary, Sahakari Noukarara Sangha and Ors. , it is held as under:
“Once an act of misappropriation is proved, may be for a small or large amount, there is no question of showing an uncalled-for sympathy and reinstating the employee into service”.
14. However, the Tribunal, on unsound and untenable reasons, held that collection of fare by the respondent from 6 passengers is not proved and as such, the same is not at all sustainable. Still the learned Single Judge did not hold so. So, we respectfully disagree with it.
15. Even otherwise, as noted already, the Tribunal had concluded that the respondent had not issued tickets to 6 passengers and not that no ticketless passenger was found in the bus conducted by him, when checked. This is clear from the observation made by the Tribunal extracted below;
“8. The claimant being a responsible employee of the Corporation is expected to discharge duty sincerely and satisfactorily. Non-issuance of tickets will not only amount to misconduct and also causes revenue loss to the Corporation”.
(emphasis supplied)
Consequently, invoking Section 11A of the Industrial Disputes Act, interfered with the punishment, though, even in such a case of not issuing tickets also, the punishment awarded by the Disciplinary Authority was not disproportionate.
16. In the case of Regional Manager, RSRTC v. Ghanshyam Sharma, 2002-I-LLJ-234 (SC), the Supreme Court has observed as under:
“4. This Court in Karnataka State Road Transport Corporation v. B.S. Hullikatti, , has held that in such cases where the bus conductors carry passengers without ticket or issue tickets at a less rate than the proper rate, the said acts would inter alia amount to either being a case of dishonesty or of gross negligence and such conductors were not fit to be retained in service because such inaction or action on the part of the conductors results in financial loss to the Road Transport Corporation. This Court was firmly of the opinion that in cases like the present, orders of dismissal should not be set aside.
5. Furthermore, we agree with the observations of the Single Judge in the present case that the Labour Court was not justified in interfering with the punishment of dismissal. Though under Section 11A, the Labour Court has jurisdiction and powers to interfere with the quantum of punishment, however, the discretion has to be used judiciously. When the main duty or function of the conductor is to issue tickets and collect fare and then deposit the same with the Road Transport Corporation and when a conductor fails to do so, then it will be misplaced sympathy to order his reinstatement instead of dismissal”.
(emphasis supplied)
17. Even it may not be out of place to note in the present case that
the respondent had 23 earlier misconduct, as noted by the Tribunal and
admittedly, shown in the articles of charge. So, he was not required to be
given any further opportunity to explain the same. In the case of Karnataka State Road Transport Corporation v. A. Ramanna, ILR 2001 Kar. 2914 (DB) and also in
the case of E. Gurumurthy v. Karnataka State Road Transport Corporation, Bangalore, 2002(2) Kar. L.J. 1 (DB) : ILR 2002 Kar. 600, this Court has held that irrespective of opportunity
given or not given to explain previous misconduct, it can be taken into
consideration while imposing punishment. So, the previous history also
could have been taken into consideration by the Tribunal while imposing
punishment, but not done.
18. That apart, allowing passengers to travel in a public transport service without tickets after or without collecting requisite fare from them itself is a serious misconduct. It is well-settled that in the case of serious misconduct, dismissal of a workman from service is the only appropriate punishment. If need be, reference can be had to the decisions in Regional Manager, Uttar Pradesh State Road Transport Corporation, Etawah and Anr. v. Hoti Lal and Anr., , Apparel Export Promotion Council v. A.K. Chopra, , Uttar Pradesh State Road Transport Corporation v. Subhash Chandra Sharma, , Uttar Pradesh State Road Transport Corporation v. Mohanlal Gupta, 2001 AIR SCW 2330, B.S. Hullikatti, supra, Union of India v. Narain Singh, and Devendra Swamy v. Karnataka State Road Transport Corporation, .
In the above view of the matter, the award of the Labour Court is unsustainable under law. So, we are unable to agree with the learned Single Judge in the matter.
In the result, the appeal is allowed. The impugned award and order are set aside and restored the order of dismissal of respondent from service passed by the Disciplinary Authority.
However, parties are directed to bear their respective costs.