Allowed

U.P.S.R.T.C. Thru. R.M. v. Sri Brijpal Singh and Others

Allahabad HC16 May 2018WRIC/40811/2012

Case brief

AI extract

What is this about?

The State Road Transport Corporation challenged a Labour Court award setting aside a driver's dismissal for not stopping his bus for checking and directing reinstatement with full back wages, plus the Deputy Labour Commissioner's order enforcing the money claim. The High Court found the award unsustainable in view of Supreme Court authority and allowed the writ petition.

What did the court decide?

Writ petition allowed; the Labour Court's award dated 20.10.2011 holding the domestic inquiry unfair and granting reinstatement with full back wages was set aside.

U.P.S.R.T.C. Thru. R.M. Vs Sri Brijpal… — Labour and Industrial Disputes | Allahabad HC (2018)

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RESERVED ON 29.11.2017 DELIVERED ON 16.05.2018

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W - C No. - 40811 of 2012: U.P.S.R.T.C. Thru. R.M. Vs. Sri Brijpal Singh And Others

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Case :- WRIT - C No. - 40811 of 2012

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Petitioner :- U.P.S.R.T.C. Thru. R.M. Respondent :- Sri Brijpal Singh And Others Counsel for Petitioner :- Samir Sharma, Sunil Kumar Misra Counsel for Respondent :- C.S.C.,M.P. Tiwari,Nitya Prakash Tiwari, Sanjay Singh, V.K. Birla

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Hon'ble Mrs. Sangeeta Chandra,J.

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This writ petition has been filed by the U.P. State Road Transport Corporation (hereinafter to referred as "the Corporation-petitioner") challenging the award dated 20.10.2011 passed by Presiding Officer, Labour Court, U.P. at Agra (herein after to referred as "the respondent No. 2") setting aside the dismissal order of the respondent No. 1 and directing his reinstatement with full back wages. Additionally, the Corporation is challenging the order passed by the Deputy Labour Commissioner on 13.07.2012 allowing the Application moved by the respondent No. 1 under Section 6 H(1) of the U.P. Industrial Disputes Act, 1947 (herein after to referred as "the U.P. Act of 1947") directing the Corporation to pay Rs.7,70,036/- to the respondent No. 1 and recovery certificate dated 16.07.2012 issued by Tehsildar, Agra in consequence of such order passed by the Deputy Labour Commissioner.

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The facts as are evident from the submissions made by learned counsel are that the respondent No. 1 was deputed on Bus No. U.P. 80-E-9297 on Agra-Jaipur route. Enroute at about 12:20 hours the Checking Squad comprising of Shri Bhushan Kumar,Traffic Superintendent, gave signal to the driver to stop the bus at Bassi Hotel. However, the respondent No. 1 did not stop the Bus and sped

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away. The Checking Squad submitted a report regarding the incident. On the basis of the said report a charge sheet was filed on 12.01.1995. The respondent No. 1's reply to the charge sheet was not found satisfactory and in the departmental inquiry initiated thereafter one Shri L.N Rai, officer of the State Judicial Service conducted the inquiry. Full opportunity was afforded to the respondent No. 1. The Inquiry Officer found the charges proved. On the basis of the said inquiry report a show cause notice was issued on 11.01.1996 to the respondent No. 1 as to why he may not be removed from the service. The respondent No. 1 submitted his reply which was considered by the Appointing Authority and by an order dated 07.09.2002 the respondent No. 1 was dismissed from service.

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It has been contended by Shri S.K. Mishra, counsel for the Corporation, that the respondent No. 1 had departmental remedy of filing Appeal under Regulation 69 of UPSRTC (other than officers) Service Regulations 1981, Para – 1 to 5 of which are quoted as under:-

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“(1) An employee shall be entitled to appeal to the next higher authority from an order passed by the appointing or any other authority.

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(2) An employee preferring an appeal shall do so in his name. The memorandum of appeal shall contain all material statements and arguments relied upon by the appellant.

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(3) The appeal shall not contain any intemperate language. Any appeal which contains such language may be liable to be summarily dismissed.

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(4) The appeal shall be addressed to the appellate, authority and submitted to the authority, against whose order it is preferred through the normal proper channel.

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(5) The appeal shall be preferred within three month of the date of the

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order. An appeal, preferred beyond three months but not beyond six months of the date of the order, may be accepted by the appellate authority if sufficient cause is shown for the delay. An appeal preferred beyond time shall be dismissed summarily.”

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It was also argued by Shri S.K. Mishra that the Labour Court failed to appreciate that in domestic inquiry the degree of proof is less stringent than in a criminal trial and only preponderance of probability of misconduct was sufficient to prove the charges. He has placed reliance upon Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane: 2005 (3) SCC 254 and UPSRTC Limited Vs. Mitthu Singh: 2006 (7) SCC 180. Also the Labour Court failed to appreciate that once the deputed officer who was the member of Checking Squad appeared and proved his report regarding the non-stopping of the Bus by the driver the onus had shifted upon the respondent No. 1. It was incumbent upon the respondent No. 1 to prove that despite signal being given to stop the Bus, he either could not see the signal or tried to stop the Bus seeing the signal but the Bus could not stop due to technical fault. This burden was not discharged by the respondent No. 1 and therefore, the Inquiry Officer was justified in holding the charge of misconduct to be proved.

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Moreover, the respondent No. 1 in paragraph – 13 of his written statement filed before the Labour Court on 10.04.2003 had stated that he was unemployed (till that date). Other than the said pleading made in the year 2003 there was no subsequent pleading/oral evidence of the respondent No. 1 to show that he remained unemployed after 10.04.2003 till date the award was rendered on 20.10.2011. Hence, the Labour Court clearly erred in awarding the full back wages along with reinstatement of the respondent No. 1.

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Shri Nitya Prakash Tiwari, the learned counsel for respondent No. 1, has submitted that the incident of the alleged misconduct

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occurred on 12.01.1994. The charge sheet was given to the respondent No. 1 after one year on 12.01.1995 without any preliminary fact finding inquiry being conducted. Earlier, also the respondent No. 1 has been charged with similar misconduct and was charge sheeted and in the disciplinary proceedings dismissal order was passed, which was set aside by the Labour Court and the respondent No. 1 was reinstated after the writ petition filed by the UPSRTC was dismissed by this Court on 30.03.2002. The second dismissal order was passed on 07.09.2002 in the second incident of alleged misconduct only out of malice. It is not possible for the authorities to keep the matter pending for six years and more specifically when the inquiry report was submitted in 1996 itself, and pass an order of dismissal only on 07.09.2002.

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Shri Nitya Prakash Tiwari has also relied upon the Case Laws dealing with the circumstances in which full back wages may be awarded to the employee on setting aside of illegal order of termination. They are :-

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(1). Deepali Gundu Surwase Versus Kranti Junior Adhyapak Mahavidyalaya (D. ED.) and others : 2003 10 SCC 324; and

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(2). Surendra Kumar Verma and others Versus Central Government Industrial-Cum-Labour Court, New Delhi and another: 1980 (4) SCC 443.

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Shri S.K. Mishra in rejoinder has argued that a charge sheet was issued against the respondent No. 1 for another incident of misconduct of non stopping the Bus No. U.P. 80/9561 on Agra-Delhi route in which Inquiry Officer was a different person namely Shri Raja Ram Verma who found the misconduct proved. The respondent No. 1 was dismissed from service on 03.02.1997. The respondent No. 1

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thereafter filed Adjudication Case No. 137 of 1998 which was allowed by the Award dated 21.12.1999 quashing the termination order and directing the reinstatement of the respondent No. 1 with full back wages. The Corporation had filed writ petition No. 5694 of 2001 in which an interim order was granted on 15.02.2002 staying the operation of the award on the condition that the workman be reinstated. The respondent No. 1 was reinstated on 21.03.2001 and posted firstly at Meerut and then, again, at Agra.

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The counsel for respondent No. 1, however, pointed out that because of the aforesaid writ petition being dismissed by this Court on 30.03.2002 the second order of dismissal on the basis of an inquiry which was completed six years ago in 1996 itself, was passed on 07.09.2002 out of malice and ill-will.

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Having heard the learned counsel for both the parties, I have gone through the pleadings on record. By an order dated 27.04.2007 the respondent No. 2 had decided the preliminary issue of whether the domestic inquiry conducted against the respondent No. 1 was in accordance with law or otherwise. In the said order dated 27.04.2007 it has been recorded by the respondent No. 2 that the respondent No. 1 was never issued any show cause notice at the stage of any preliminary inquiry. Straightway on the report of the Traffic Superintendent a charge sheet was issued by Shri L.N. Rai, HJS. It has been recorded in the order dated 27.04.2007 by the respondent No. 2 that Shri Ram Prakash Upadhyay, Office Assistant – IInd had been produced as employer's witness on 17.05.2006 and in his examination-in-chief and cross-examination he had stated that before the Inquiry Officer Sarva Shri N.L. Rai, Bhushan Kumar, Traffic Superintendent and Samar Singh, Traffic Inspector, had appeared and got their statement recorded but Brij Pal Singh had failed to appear despite repeated letters and reminders issued to him. The Inquiry

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Officer, therefore, proceeded to examine the reply submitted by the respondent No. 1 to the charge sheet and submitted his report. The respondent No. 1 also failed to submit any reply to the show cause notice issued to him thereafter, even though a reminder was sent to him.

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The Employer's witness - Ram Prakash Upadhyay, the Office Assistant, was attached to the Inquiry Officer at the time of the inquiry to record evidence. The Employer's witness had admitted that the charge was proved only on the basis of the statements of the members of the Checking Squad that they had tried to stop the bus at Bassi Hotel and had even run for a small distance waving at the driver to stop the bus but to no avail. The driver in his reply to the charge sheet had submitted that on 11.01.1994 it was raining heavily and he could not see the signal by the Checking Squad to stop the bus.

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The respondent No. 2 in his order dated 27.04.2007 also examined the statements made by the Traffic Superintendent and Traffic Inspector before the Inquiry Officer and has recorded that both the members of the Checking Squad did not clarify as to whether the signal to stop the bus was made in the afternoon or at night. It was only written in the report that signal to stop the bus was made on 12:20 hours. Moreover, the members of the Checking Squad could not state whether they were sure that the driver of the bus had actually seen them signaling to stop the bus. However, there is a presumption both on the part of the members of the Checking Squad and the Inquiry Officer that the driver must have seen the signal to stop the bus. The Respondent No. 2 has observed that Samar Singh, Traffic Inspector, had stated that they were at Bassi Hotel. They saw the bus coming on Agra-Jaipur Road. They ran towards the bus while it was running and signalled to the driver to stop when they reached the road. Both Samar Singh and Gajraj Singh, Traffic Inspectors, had

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reached the road and signalled the driver to stop the bus; whereas Bhushan Kumar, Traffic Superintendent, was left behind a little and he joined them later.

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The respondent No. 2, therefore, drew presumption that during signaling of the bus to stop, since it was raining heavily, it could not be said that the driver would have seen the signal to stop and therefore, non stoppage of the bus could not be said to be deliberate. He believed the version of the respondent No. 1 as given in his reply to the charge sheet, that because it was raining, he could not see the members of the Checking Squad and their signaling him to stop the bus.

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This order dated 27.04.2007 deciding the preliminary issue against the Corporation has been made by one Shri M.L. Sharma, Presiding Officer. Almost the same findings have been recorded by the later Presiding Officer Chandramani Lal Maurya in the Award dated 20.10.2011 relying heavily upon the order dated 27.04.2007, and holding that the inquiry conducted was not fair. The evidence which was led thereafter was also considered. The statement of respondent No. 1 made on 11.12.2007 was recorded that he was not able to see the bus being signalled to stop by the Checking Squad as it was raining heavily. The Presiding Officer took into account that in the report, the incident has been stated to have occurred on 12:20 hours and therefore, he concluded that since there was no street light and it was quite dark at night and also raining and there was no wipers on the windscreen, it was possible that the respondent No. 1 could not have seen the Checking Squad or their signaling him to stop the bus. In the oral evidence of respondent No. 1 on 11.12.2007 it has come out that he had admitted that the members of the Checking Squad namely Gajraj Singh and Sammar Singh had no personal enmity with the respondent No. 1, and also that on an earlier occasion his

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services had been terminated on the same kind of misconduct where he had not stopped the bus to enable the checking by the Checking Squad.

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The Presiding Officer in the Award dated 20.10.2011 has recorded that since at the time of recording of the findings on preliminary issue the respondent No. 2 had found an admission on the part of the Employer that on 11.01.1994 it was raining heavily and they were not sure that the driver who was driving the bus without wipers, could have seen the signal to stop and there were no street lights, it could not be said that there was a deliberate attempt by the driver to avoid the Checking Squad. Therefore the presumption could not have been drawn by the Employer that he along with conductor was involved in embezzlement and corruption of transporting the passengers without tickets and were avoiding the checking. The Respondent No. 2 had concluded that since the basic requirement for proving the charge was not met with as the Checking Squad had admitted that they were not sure whether the driver had seen them signaling to stop the bus, the inquiry report submitted by the Inquiry Officer could not have been relied upon by the Appointing Authority to dispense with the service of the respondent No. 1. The order of termination of service passed on 07.09.2002 was quashed and a direction was issued for reinstatement of the workman along with back wages and continuity in service.

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The Deputy Labour Commissioner, Agra Region, Agra has allowed the application of the respondent No. 1 made under Section 6-H(1) of the U.P. Act, 1947 on 13.07.2012 and has issued an order directing the Corporation to pay Rs.7,70,036/- as arrears of pay to the respondent No. 1. In pursuance of the such order a recovery citation has been issued on 16.07.2012.

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It has come out from the pleadings on record that in compliance of the recovery citation the Punjab National Bank, Respondent No. 6's Account No. 212415 had been attached on 01.08.2012 even before the writ petition was filed on 16.08.2012.

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This Court at the time of hearing the writ petition as fresh for admission had directed on 27.08.2012 the stay of the operation of Award dated 20.10.2011 but from the affidavits filed thereafter by the respondent No. 1 and the Corporation it is evident that the Corporation had reinstated the respondent No. 1 in pursuance of the Award.

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In the supplementary affidavit filed by the Corporation on 27.08.2012 the copy of the way bill of Bus No. U.P. 80 E 9297 plying on Agra-Jaipur Route on 11.01.1994 has been filed to show that the bus was to start from Agra at 7:00 hours i.e. 7:00 AM in the morning but was delayed by one hour. Enroute at about 12:20 hours i.e. 12:20 PM in the afternoon the bus was signalled to stop for checking and a report of misconduct was submitted by the Traffic Superintendent thereafter on which a charge sheet was issued. Copies of the charge sheet and the inquiry report dated 12.01.1995 and 16.12.1995 have also been filed as Annexures to this supplementary affidavit.

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From a perusal of the inquiry report submitted by Shri L.N. Rai, HJS, it is evident that the conductor Shri Shyam Singh Solanki was also charged for misconduct although by a different charge sheet. Inquiry was conducted jointly as the evidence that was sought to be led by the Corporation was of similar nature with regard to the same bus on the same route and the same incident. The Respondent No. 1 had not appeared before the Inquiry Officer. The Traffic Superintendent, Bhushan Kumar, and Samar Singh, the Traffic Inspector, had appeared. Shri Shyam Singh Solanki, the conductor,

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had also appeared and got his statement recorded on 06.10.1995 before the Inquiry Officer, but the statement could not be completed and despite reminders issued thereafter, Shri Shyam Singh Solanki, the conductor, had failed to appear before the Inquiry Officer thereafter. The evidence of the members of the Checking Squad having been recorded and considered, the Inquiry Officer had found that there was an admission on their part that at the time when the Bus was signalled to stop, it had been raining for the past one hour. Therefore, the Checking Squad had stopped at Bassi Hotel to save themselves from getting wet in the rain. When they saw the bus coming, they ran towards the road and signalled it to stop and there is a presumption that the driver would have seen three men running towards the bus and signalling it to stop as there was sufficient day light. If the driver had not been able to see them, then, it would mean that the driver was unable to see any other person on the road also, and was liable also of misconduct of driving the bus negligently taking a risk of accident. The Inquiry Officer, therefore, found both the driver and the conductor of the bus guilty of misconduct of not stopping the bus despite seeing the signal of the Checking Squad and the presumption drawn thereafter for the reason of not stopping the bus was that both of them were involved in corruption and carrying the passengers without ticket and being afraid of being caught red handed they have avoided stopping the bus deliberately.

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With regard to the judgments submitted by the learned counsel for the Corporation, I have gone through the judgment rendered by the Supreme Court in UPSRTC Limited Versus Mithu Singh: 2006 (7) SCC 180. Almost under similar circumstances where the driver had been charged of not stopping the bus despite seeing the signal made by the Checking Squad on three occasions, in domestic inquiry the driver was found guilty and the Appointing Authority terminated the

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service. The Labour Court considered the fact that the driver was dismissed on one occasion earlier also in 1975 for similar misconduct, but he had been given a second chance by the Corporation itself and reinstated but he failed to improve. On several occasions minor punishments and warnings were also issued to the respondent No. 1. Thereafter, when a report was submitted regarding his failure to stop the bus on three occasions in spite of signal given by the Checking Squad, after inquiry and proving of charge of the misconduct, the driver was dismissed from service. The Labour Court set aside the order of dismissal on three grounds. One of the grounds was that the Checking Squad could not be said to be sure whether the driver had intentionally not stopped the bus. Therefore, even if the allegation was correct, there was no ill intention proved on the part of the driver and it was possible that the signal to stop might have been given by the Checking Squad but it might not have been noticed by the driver. Moreover, the Labour Court had observed that if certain passengers were allowed to travel in the bus without tickets besides the driver proceedings ought to have been initiated against the conductor also but this was not done by the Corporation. In these circumstances, the Labour Court held that there was no justification for giving such a harsh punishment of termination from service. At the most the driver should have been given a warning for future. The Labour Court directed reinstatement with continuity in service and back-wages during the period of unemployment. The Award of the Labour Court was affirmed by the High Court.

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Before the Supreme Court it was urged by the Employer that all throughout the record of service of the workman was unsatisfactory. In about thirty years of service there were several lapses on the part of the workman. Once he was also dismissed but a chance was given to him and he was reinstated so that he may improve. However, he failed

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to improve. It was submitted that the Labour Court was not exercising its jurisdiction in a criminal case which required proof beyond reasonable doubt. When the report was submitted by the Checking Squad and the driver could not show any personal enmity with the members of the Checking Squad, the report ought to have been believed. Moreso, when the Checking Squad had been examined in the domestic inquiry held by the Corporation.

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The Supreme Court in paragraph – 11 of the aforesaid judgment has observed that considering the facts in their entirety, it is clear that not once not twice but on three occasions the Checking Squad had asked the driver to stop the bus so as to enable them to undertake checking but the driver had not stopped the bus. A report was, therefore, submitted and a charge sheet issued after considering the evidence of the Traffic Superintendent and the attenuating circumstances and the explanation put forward by the driver, a finding was recorded by the Inquiry Officer that the allegations against the workman stood proved. The respondent – workman had not been able to show why the Checking Squad had falsely implicated him without there being any enmity. The observations of the Labour Court that it was possible that signal might have been given by the Checking Squad but it might not have been noticed by the driver, were liable to be set aside and were set aside. Similarly, the observation by the Labour Court regarding the absence of initiation of the proceedings against the conductor was a totally irrelevant and a non-existent consideration. The conductor could not be held to be guilty of any misconduct unless the bus was stopped by the driver and the Checking Squad had undertaken the checking and on the basis of the said checking, it had come to the light that passengers were traveling without tickets. It was only then that the conductor could be held to be liable. Since the bus itself was not stopped by the driver on the signal

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of the Checking Squad, no liability could be fastened upon the conductor.

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The Hon'ble Supreme Court observed that the question was not whether the Checking Squad could have chased the bus on their own vehicle. The allegation against the workman was that in spite of signal given by the Checking Squad to stop the bus he failed to do so. The Labour Court could not have interfered on the basis of the presumptions and both the Labour Court and the High Court had committed an error in the said case. The Supreme Court therefore allowed the appeal filed by the Corporation.

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With regard to the back wages the Supreme Court has observed that there is no rule of thumb that in each and every case, where the finding was recorded that the termination was illegal that an employee is entitled to full back wages. The Hon'ble Supreme Court in paragraphs – 13 and 14 quoted the judgment rendered in General Manager Haryana Roadways Vs. Rudhan Singh, 2005 (5) SCC 591 and Allahabad Jal Sansthan Versus Daya Shanker Rai : 2005(5) S.C.C. 124, and UPSRTC Ltd. Vs. Sarada Prasad Misra : 2006 SCC (L&S) 857 and observed thus :-

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“13. In General Manager, Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591 , this Court held that there is no rule of thumb that in each and every case, where a finding is recorded by Court or Tribunal that the order of termination of service was illegal that an employee is entitled to full back wages. A host of factors must be taken into account.

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The Court stated: "There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of

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the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily- wage employment though it may be for 240 days in a calendar year."

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Again, in Allahabad Jal Sansthan v. Daya Shankar Rai, (2005) 5 SCC 124 , after considering the relevant cases on the point, the Court stated:

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"We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at."

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14. Recently, in U.P.S.R.T.C. Ltd. v. Sarada Prasad Misra,

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(2006) 4 SCC 733 JT (2006) 5 SC 114 one of us (C.K. Thakker, J.) had an occasion to consider a similar issue. Referring to earlier case-law, it was observed :

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From the above cases, it is clear that no precise formula can be adopted no `cast iron rule' can be laid down as to when payment of full back wages should be allowed by the court or Tribunal. It depends upon the facts and circumstances of each case. The approach of the Court/Tribunal should not be rigid or mechanical but flexible and realistic. The Court or Tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the second question the Court or Tribunal would consider all relevant circumstances referred to above and keeping in view the principle of justice, equity and good conscience, should pass an appropriate order.”

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And thereafter observed in paragraphs 15 and 16 thus:-

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“15. Thus, entitlement of a workman to get reinstatement does not necessarily result in payment of back wages which would be independent of reinstatement. While dealing with the prayer of back wages, factual scenario and the principles of justice, equality and good conscience have to be kept in view by an appropriate Court/Tribunal.

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16. In the instant case, the record clearly reflects that the services of the respondent-workman were never found to be satisfactory. In fact, before more than 30 years, his services were terminated but he was taken back by giving a chance to improve. Unfortunately, however, the respondent did not utilise it. Even prior to the three incidents in question, at several

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times, the respondent-workman was warned. It was, therefore, not a fit case to grant back wages and the Labour Court and the High Court were not right in granting the said prayer. To that extent, therefore, the order deserves interference.”

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The Award of Labour Court as confirmed by the High Court was set aside to the extent of granting the back-wages, although the reinstatement of the workman was not disturbed.

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In Divisional Controller, KSRTC (NWKRTC) (supra) the Supreme Court referred to binding precedents like Karnatka State Road Transport Corporation Vs. B.S. Hulli-Katti: 2001 (2) SCC 754 and State of Haryana and another Vs. Rattan Singh, 1977 (2) SCC 491; and Devendra Swamy Vs. Karnataka State Road Transport Corporation: 2000 (9) SCC 644 to observe that if there was evidence of the Inspector who conducted the checking establishing misconduct of the respondent No. 1 based on which a finding was given that the respondent was guilty of misconduct alleged, the Disciplinary Authority had rightly punished the workman by an order of dismissal.

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With regard to the quantum of punishment the Supreme Court has observed in paragraphs – 13 and 14 thus:-

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“13. Coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment, on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating corporation's fund, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal.

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14. This Court in the case of B.S. Hullikatti (supra) held in a similar circumstances that the act was either dishonest or was

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so grossly negligent that the respondent therein was not fit to be retained as a conductor. It also held that in such cases there is no place for generosity or misplaced sympathy on the part of the judicial forums and thereby interfere with the quantum of punishment.”

¶99

On the other hand, the counsel for respondent No. 1 has argued that the evidence on record which was before the Inquiry Officer was examined by the Labour Court carefully and thereafter the preliminary issue regarding the violation of principles of natural justice in the disciplinary proceedings was recorded on 27.04.2007. Even thereafter, the oral evidence was recorded by the respondent No. 2 of the Employer's witness and also of the respondent workman. It was found on a detailed consideration of the evidence that the members of the Checking Squad were not sure whether the driver had indeed seen the signal for stopping the bus. Moreso, when it was admitted by the members of the Checking Squad that it was raining heavily for the past one hour before they saw the bus coming from Agra and going towards Jaipur and ran towards the bus and reached the road and signalled it to stop by waving the diary. A presumption has been wrongly drawn by the Inquiry Officer that if the driver was unable to see them waving at the bus to stop because of the heavy rain, he would also have been unable to see other travellors on the route and would have committed an accident, which did not in fact occur, therefore, it can be safely presumed that the driver was deliberately avoiding the checking by not stopping the bus.

¶100

The learned counsel for the respondents has also referred to earlier order of termination being set aside by the Labour Court and the writ petition filed by the Corporation thereafter being dismissed by this Court and the fact that the inquiry report was submitted in December, 1995, the show cause notice was issued in January, 1996

¶101

¶102

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¶103

but the termination order was passed on 07.09.2002 after the earlier writ petition was dismissed in March, 2002 and after the Corporation was asked to reinstate the workman along with back-wages.

¶104

It has been submitted by the learned counsel for workman that the circumstances are such that it can easily be presumed that the termination order passed after six years of the completion of the inquiry was out of malice only to dispense with the service of the respondent No. 1.

¶105

Shri Sunil Kumar Mishra, Advocate, has failed to make any submission in this regard as to why the Corporation kept quiet after issuing show cause notice on 11.01.1996 for six years and thereafter, all of a sudden, the termination order was passed on 07.09.2002. But it is evident from the perusal of the pleadings on the record that on an earlier occasion the services of the petitioner had been terminated for a different incident dated 13.02.1996 which occurred on Agra-Delhi route in bus No. U.P. 80/9561. The respondent No. 1's services had been terminated on 03.02.1997 and since he already stood terminated there was no need to proceed with and pass any order on the show cause notice issued on 11.01.1994 regarding the second inquiry. It was after the Award of the Labour Court in Adjudication Case No. 137 of 1998 was affirmed by this Court in Writ Petition No. 5694 of 2001, the respondent No. 1 was reinstated, that the Corporation may have considered concluding the domestic inquiry initiated regarding the second incident. The show cause notice was already issued in 1996 but no reply was submitted by the respondent No. 1 despite reminders being sent to him.

¶106

Since there was no rebuttal of the allegation made by the counsel for the respondent No. 1 regarding delay in conduct of the inquiry and passing of the termination order on 07.09.2002, with

¶107

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regard to an incident that occurred on 11.01.1994; this Court cannot base its decision on mere presumptions with regard to the plausibility and genuineness of the reasons for the Corporation for not proceeding against the respondent No. 1 earlier.

¶110

On a perusal of the order passed by the Labour Court, this Court finds that the Labour Court had initially passed an order that the domestic inquiry was not conducted in accordance with principles of Natural Justice. Thereafter it had examined all evidence itself. While examining evidence it had drawn a presumption that on the day when the incident of misconduct was shown to have happened, it was raining heavily and there was insufficient light, so it was possible that the driver could not see the signal made by the Checking Sqaud for him to stop the bus. On the basis of probability of the delinquent employee not being able to see the signal, the Labour Court has found the workman not guilty of the misconduct as alleged. It has set aside the order of termination of service thereafter. The controversy in this case is covered on all four corners with the judgment rendered by the Hon'ble Supreme Court in UPSRTC Vs. Mitthu Singh (supra). This Court, therefore, finds the order of the Labour Court unsustainable.

¶111

It is hence set aside. Consequences to follow.

¶112

The writ petition is allowed.

¶113

Order Date :- 16.05.2018 LBY

¶114

U.P.S.R.T.C. Thru. R.M. v. Sri Brijpal Singh and Others

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U.P.S.R.T.C. Thru. R.M. v. Sri Brijpal Singh and Others

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