2006 Supreme(SC) 626

2006(5) Supreme 573
SUPREME COURT OF INDIA
(From Karnataka High Court)
Dr. AR. Lakshmanan and Lokeshwar Singh Panta, JJ.
Divisional Controller, N.E.K.R.T.C. — Appellant
versus
H. Amaresh — Respondent
Civil Appeal No. 7993 of 2004
Decided on 17-7-2006
Counsel for the Parties :
For the Appellant : Ms. Anitha Shenoy Advocate.

IMPORTANT POINT
In a case of charge of pilferage proved against an employee/workman the loss of confidence would be the primary factor and not the amount of money misappropriated and sympathy or generosity could not be a factor which was impermissible in law.

Headnote:LABOUR LAW — Industrial Disputes Act, 1947 — Sections 10(4) and 25F — Dismissal from service — Reinstatement — Respondent as a conductor employed with appellant Corporation was found under influence of alcohol while on duty and had not issued tickets to passengers — In departmental inquiry into charges, found charges proved and Disciplinary Authority agreed with finding of Inquiry Officer and dismissed respondent from service — Labour Court while deciding preliminary issue regarding validity of inquiry proceedings held same to be illegal in view of denial of reasonable opportunity to respondent — In trial, Court found charge regarding pilferage stood proved and dismissal from service was substituted with reinstatement and 75% backwages — High Court upheld award but modified back wages and reduced it to 25% — Division Bench upheld findings with regard to reinstatement but set aside finding on back wages — Appeal — Award of Labour Court was non-application of mind as any dereliction of duty was highly detrimental to its financial well being and against public interest — Charges of pilferage was grave — Labour Court erred by not considering that respondent was in a drunken condition when there was no denial by workman — Loss of confidence was the primary factor and not the amount of money misappropriated and there would be no place for generosity or misplaced sympathy — High Court in ordering reinstatement was shockingly disproportionate in nature of charge of pilferage found proved — Impugned order was liable to be set aside.

       Held : In the said award, the Labour Court directed reinstatement of the respondent despite holding him guilty of the charge of pilferage levelled against him and directed reinstatement with back wages. In our view and as rightly pointed out by learned counsel for the appellant any dereliction of duty in this regard is highly detrimental to its financial well being and against public interest. We shall now consider the judgment of the High Court. The High Court, in our view, has erred in affirming the award of the Labour Court insofar as the award of reinstatement is concerned. As rightly urged by Ms. Anitha Shenoy that the charges of pilferage was established against the respondent-workman such misconduct is grave and has the effect of disrupting the services of a public transport system. (Paras 11 and 12)

       The High Court and the Labour Court failed to consider all the cogent evidence and documents produced by the Corporation before them. The Labour Court has miserably erred by not considering that the respondent was in a drunken condition when there was no denial on the part of the workmen to that effect. By not considering this, the High Court has also erred. The order of reinstatement passed by the Labour Court and its affirmation by the High Court is contrary to the law declared by this Court in (2001) 2 SCC 574 wherein it was held that it is misplaced sympathy by courts in awarding lesser punishments where on checking it is found that the bus conductors have either not issued tickets to a large number of passengers and deposit the same with the Corporation. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare. It was finally held that the order of dismissal should not have been set aside. As already noticed, this view was reiterated by a 3 Judges Bench of this Court in the Regional Manager, RSRTC v. Ghanshyam Sharma, (2002) 10 SCC 330. In the instant case, the mis-appropriation of the funds by the delinquent employee was only Rs. 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who mis-appropriated funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence as the primary factor and not the amount of money mis-appropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of mis-appropriating a Corporations funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment.(Paras 16 to 19)

       In our opinion, the conclusion arrived at by the High Court in ordering reinstatement was shockingly disproportionate in the nature of charge No.4 found proved. When charge No.4 is proved, which is grave in nature, interference with the punishment of dismissal cannot be justified. Similarly, the High Court gets jurisdiction to interfere with the punishment in the exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed is shockingly disproportionate to the charges proved.(Para 22)

       In the instant case, even though charge No.4 has been proved beyond any doubt, the Labour Court taking a lenient and sympathetic view, passed certain directions which were modified by the learned Single Judge and of the Division Bench. While entertaining this special leave petition, this Court has only ordered notice to the respondent. The order of the High Court and of the Division Bench has not been stayed even though the Division Bench observed that having regard to the gravity of the charges proved against the respondent, it would be in the interest of justice to modify the order passed by the learned Single Judge to the extent he has directed the appellant-Corporation to pay 25% back wages. The Division Bench deleted the direction in regard to the payment of back wages but retained the order in regard to the reinstatement. The said order is ex-facie illegal and contrary to the principles laid down by the various decisions of this Court which have been referred to in paragraphs supra and also on the proved facts and circumstances of the case. Having accepted all the facts that the charges of short remittance was proved and yet the learned single Judge and the learned Judges of the Division Bench proceeded to pass an order ordering reinstatement which clearly goes against the mandate of the various judgments of this Court. In our view, even short remittance amounts to mis-conduct and, therefore, applying the rulings of this Court, the impugned order ought not to have been passed by the Division Bench ordering reinstatement. We, therefore, have no hesitation to set aside the order passed by the learned Judges of the Division Bench and restore the order of dismissal of the respondent from service.(Paras 24 and 25)