JUDGMENT
R.B. Misra, J.
1. Heard Sri Sameer Sharma, learned counsel for the petitioner and Sri M.C. Chaturvedi Additional Chief Standing Counsel along with Sri S.S. Sharma, learned standing counsel for the State.
2. Initially on 5.2.1988 notice was issued, one counsel was engaged for respondent No. 3 who has subsequently been elevated as Hon’ble Judge of this Bench therefore, another notice was issued on 12.11.2003 to engage another counsel in place of earlier counsel for and on behalf of respondent No. 3 and despite notice, no counsel was engaged. In these circumstances the writ petition is disposed of on the available documents.
3. In this petition labour court award dated 2.2.1987 is under challenge. The brief facts necessary for adjudication of the present writ petition are that the respondent No. 3 was appointed as temporary employee as conductor against short term vacancy. On 27.7.1974 and while plying Bus No. 9107 on Chandrawat-Mahoba route, on checking Sri R.P. Srivastava, Assistant Regional Manager, Mahoba along with Sri R.B. Mathur, Junior Foreman, Mahoba found that respondent No. 3 was carrying 28 passengers without tickets and 74 kgs. luggage without booking for which he had already realised the fare’ and the luggage charge from them. In view of the report submitted by the checking authorities and after consideration, prima facie misconduct was found to have committed and respondent No. 3 was placed under suspension followed by a charge-sheet. After the reply the departmental inquiry was proceeded with after affording opportunity of hearing to adduce the evidence, avail opportunity to defend his case and cross examine the witnesses. The allegations indicated in the charge-sheet was proved therefore, the show cause notice was served to respondent No. 3 which too was replied by him. After considering the material on record the disciplinary authority was satisfied that the charges in respect of the misconduct and the allegations against the respondent No. 3 were proved and following three punishments were awarded on 29.12.1976 (a) reduction of the salary of respondent No. 3 for five years with future interest, (b) by order dated 6.2.1976 the petitioner was reinstated and forfeiting the suspension allowance, (c) adverse entry awarded in the character roll.
4. It appears that the respondent No. 3 moved a highly belated application before the Regional Conciliation Officer on 4.1.1985 challenging the punishment order dated 29.12.1976 following dispute was referred to labour court under Section 4K of the U. P. Industrial Disputes Act and registered Adjudication Case No. 14 of 1986 which reads as under :
“Kya sewayojkon dwara apne shramik Kashev Narain Saxena Putra Sri Pancham Prasad Saxena, parichalak ko adesh dinank 28.12.1976 dwara diya gaya dand achit tatha/athawa vaidhanik hai? Yadi Nahin, to sambandhit shramik kya labh/anutosh (Relief) pane ka adhikari hai, tatha anya kis vivran sahit?”
5. It appears that the records pertaining to the respondent No. 3 was misplaced and was not traceable therefore written submissions could not be filed promptly before the labour court whereupon the labour court opined that the inquiry was not fair and proper and the labour court by its order dated 2.2.1987 had set aside the punishment order given by the ‘Corporation’, on the, ground that three punishment could not be awarded to the respondent for the same misconduct.
6. According to the petitioner since no counter-affidavit was filed, despite the notice therefore, the averment made in the writ petition are taken to be acceded in view of the decision of this Court in J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. Collector, Kanpur, 1999 (82) FLR 710 (DB) and Smt. Naseem Bano v. State of U.P. and Ors., AIR 1993 SC 2592.
7. The following submissions were made on behalf of the petitioner :
(a) The respondent No. 3 raised a highly belated industrial dispute (after more than nine years) due to which the records pertaining to his departmental proceedings could not be traced out. Thus, in view of the excessive delay the dispute has become stale hence, the reference of the dispute was itself bad and same ought to have been rejected on the ground of delay. Kamarahatty Company Ltd. and Anr. v. State of West Bengal” and Anr., 2O02 (92) FLR 601.
(b) In any case the labour court clearly erred in coming to the conclusion that the punishment could not be imposed, as multiple penalties could not be imposed for one misconduct in view of :
(a) Dr. Nirupama Rath v. State of Orissa, 1996 (73) FLR 1399 ;
(b) Commissioner of Rural Development and Ors. v. A. S. Jagannathan. 1999 (2) SCC 313.
(c) The labour court erred in coming to the conclusion that the adverse entry is by way of punishment as the said entry is only a record of performance of an employee.
(d) The remaining two punishments of reversion to starting salary and forfeiture of suspension pay could be imposed upon respondent No. 3 as provided for under Rule 49 of the C.C.A. Rules, 1930 (as by that time the Corporation had not framed its own service regulations uptill 1981).
The Rule 49 reads as below :
“49. The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services comprised in any of the classes (1) to (5) specified in Rule 14, namely :
(i) Censure.
(ii) Withholding of increments including stoppage at an efficiency bar,
(iii) Reduction to a lower post or time scale, or to a stage in a time-scale,
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders,
(v) Suspension,
(vi) Removal from the civil service of the State which does not disqualify from future employment,
(vii) Dismissal from the civil service of the State which ordinarily disqualifies from future employment.
Explanation.–The discharge :
(a) of a person appointed or probation during or at the end of the period of probation, in accordance with the appointment and the rules governing the probationary service; or
(b) of a person appointed otherwise than under contact to hold a temporary appointment on the expiration of the period of the appointment, or
(c) of a person engaged under contract, in accordance with the terms of his contract.”
The Civil Services (Classification, Control and Appeal) Rules, 1930 as applicable in U. P. is also relevant rule.
8. In the present case, the disciplinary authority has clearly found that there were serious charges against the respondent which were established against him in a disciplinary enquiry which was properly conducted. The disciplinary authority has rightly observed that looking to the serious nature of the charges proved a minor punishment of only stoppage of two increments without cumulative effect has been imposed on the respondent by taking a lenient view since he is about to retire. The order for recovery of the loss caused on account of the respondent’s negligence and misconduct is also permissible under the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules as also under the Tamil Nadu Pension Rules, the former permitting recovery from pay and the latter permitting recovery from pensionary benefits after retirement. The Tribunal is wrong in holding that if an order is passed for recovery of the amount lost from the employee, no punishment can be imposed on him. The disciplinary authority, in the present case, was entitled to impose the punishment of stoppage of two increment without cumulative effect. At the time of passing the final order, the disciplinary authority was also entitled to pass order relating to the suspension period pending enquiry.
9. In Commissioner of Rural Development and Ors. v. A.S. Jagannathan. (1999) 2 SCC 313, it was held as below :
“Respondent was found guilty of shortage and misappropriation of stores. The disciplinary authority, keeping in view that respondent was to retire in near future, took a lenient view and imposed punishment of stoppage of increments for two years without cumulative effect. Suspension was directed to be treated as service period but without pay. In addition, loss of Rs. 51,300 caused by respondent was also ordered to be recovered from him. It was held that the Tribunal had no jurisdiction to interfere with the punishment imposed by the disciplinary authority. The Tribunal has purported to interfere on the ground that three punishments cannot be imposed for the same charge. This view cannot be sustained. The order of recovery of loss caused on account of respondent’s negligence and misconduct, is permissible under the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules and also under the Tamil Nadu Pension Rules, the former permitting recovery from pay and the latter permitting recovery from pensionary benefits after retirement. The Tribunal was wrong in holding that if an order is passed for recovery of the amount from the employee, no punishment can be imposed on him. The disciplinary authority, in the present case was entitled to impose punishment of stoppage of two increments without cumulative effect. The disciplinary authority was also right in ordering that suspension should be treated as service period but without pay. The order must be read as a whole. The disciplinary authority has passed the order looking to the nature of proved charges. The Tribunal was not right in interfering with the punishment.”
10. In Regional Manager, U.P. State Road Transport Corporation, Etawah and Ors. v. Hoti Lal and Anr.. 2O03 (2) AWC 1070 (SC) ; (2003) 3 SCC 605, it was observed as below :
“The respondent was a bus conductor under the U.P.S.R.T.C.On 9.7.1988 when he was on duty in a bus, the Assistant Regional Manager checked the bus and found sixteen persons to be without ticket. Even after realising fare from the passengers no ticket had been issued up to the time of checking. When the inspecting officer started checking, the respondent hurriedly tried to issue tickets. Old tickets were found in his possession with the intent to use them again. The respondent was suspended on 23.7.1988 and was on 16.8.1988 served with a charge sheet containing the said allegations. Finally on 30.3.1991 an order of termination was passed. After unsuccessfully filing a departmental appeal, the respondent challenged the termination order in a writ petition which was later dismissed by a single Judge of the High Court with the conclusions that after full-fledged inquiry conducted by a retired District Judge, the employee was found guilty of misconduct on consideration of the materials. However, since the alleged misconduct has caused loss to the State to the extent of Rs. 16 only, a Division Bench observed that the punishment awarded was not commensurate with the charge. Therefore, it set aside the order of termination or compulsory retirement. In the instant appeal, the appellate State contended that the High Court had exceeded its jurisdiction in interfering with the quantum of punishment and practically restricting, the Department’s discretion to imposition of only minor penalties.”
Allowing the appeal, the Supreme Court held :
“The Court or Tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. The scope for interference is very limited and restricted to exceptional cases. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. A mere statement that it is disproportionate would not suffice. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a judiciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court are not proper.
The Supreme Court has distinguished in U. P. S. R. T. C. v. Mahesh Kumar Mishra, 2000 (2) AWC 1475 (SC) : (2000) 3 SCC 450 : 2000 SCC (L & S) 356 and has referred to State of Maharashtra v. M.H. Mazumdar, (1988) 2 SCC 52 : 1988 SCC (L & S) 436 : (1988) 6 ATC 876, followed on B. C. Chaturvedi v. Union of India. (1995) 6 SCC 749 : 1996 SCC (L & S) 80 : (1996) 32 ATC 44 ; Union of India v. G. Ganayutham, (1997) 7 SCC 463 : 1997 SCC (L & S) 1806 ; Om Kumar v. Union of India, (2O01) 2 SCC 386 : 2001 SCC (L & S) 1039 ; Karnataka S.R.T.C. v. B.S. Hullikatti, (2001) 2 ASCC 574 : 2001 SCC (L & S) 469 ; Regional Manager, R.S.R.T.C. v. Ghanshyam Sharma, 2002 (1). AWC 237 (SC) : (2002) 10 SCC 330 : (2002) 1 LLJ 234, relied on Alexander Machinery (Dudley) Ltd. v. Crabtree. 1974 LCR 120 (NIRC) ; State of Orissa v. Bidyabhushan Mohapatra, AIR 1963 SC 779 ; Union of India v. Sardar Bahadur, (1972) 4 SCC 618 ; Bhagat Ram v. State of H. P., (1983) 2 SCC 442 : 1983 SCC (L & S) 342 ; Rangaswami v. State of T.N., 1989 Supp (1) SCC 686 ; State Bank of India v. Samarendra Kishor Endow, (1994) 2 SCC 537 : 1994 SCC (L & S) 687 : (1994) 27 ATC 149 ; Associated Provincial Picture House Ltd. v. Wednesbury Corporation, (1948) 1 KB 223 ; (1947) 2 All ER 680 (CA) ; Council of Civil Service Unions v. Minister for Civil Service, 1985 AC 374 ; (1984) 3 All ER 935 ; Bugdaycay v. Secretary of State for Home Department, 1987 AC 514 : (1987) 1 All ER 940 ; Brind v. Secretary of State for Home Department, (1991) 1 AC 696 : (1991) 1 All ER 720 and Indian Oil Corporation Ltd. v. Ashok Kumar Arora, (1997) 3 SCC 72 : 1997 SCC (L & S) 636.”
11. I have heard learned counsel for the petitioner and perused the records. 1 find that Inquiry Officer has considered all the relevant document as provided sufficient opportunity of hearing to respondent No. 3 and after careful consideration, in consonance to principle of natural justice has concluded the inquiry, the same was accepted by the competent disciplinary authority and the allegations against the respondent No. 3 was found to be proved. However, in view of the judgment of Supreme Court in A. S. Jagannathan v. Commissioner of Rural Development and Ors., (1999) 2 SCC 313, in facts and circumstances could riot be said that the multiple punishments could not have been given. In the facts and circumstances and keeping in view the allegations against the respondent No. 3 and the judgment of the Supreme Court in A.S. Jagannathan, squarely protects the stand of the petitioner Corporation.
12. In view of the above observations, the award of labour court is legally not sustainable. It has erroneously made appraisal of the evidence and has not analysed the facts in issue properly, therefore, it is set aside and the writ petition is allowed. No order as to costs.