Tarun Agarwala - (1.) -List has been revised. The learned counsel for the respondent is not present. Heard Sri Sheshadri Trivedi, the learned counsel holding the brief of Sri Sameer Sharma, the learned counsel for the petitioner.
(2.) THE checking team found that the workman, who was working as a conductor in U.P.S.R.T.C. bus, was carrying 22 passengers without ticket and, on this basis, the workman was charge-sheeted and a domestic inquiry was held, in which the Inquiry Officer, after considering the evidence, found that the charges levelled against the petitioner were proved. THE disciplinary authority, on the basis of the inquiry report and other extenuating factors passed an order of removal of the service of the workman. Aggrieved by the order of removal, the workman raised an Industrial Dispute under Section 4K of the U. P. Industrial Disputes Act. THE terms of the reference order is something like this : "Whether the employers were justified in terminating the services of the petitioner w.e.f. 30.11.1988 ? If not, to what relief is the workman entitled to." The labour court, in its award held, that the inquiry was conducted in a fair and proper manner and that the principles of natural justice was complied by the employer and that full opportunity was given to the workman to defend himself. The labour court also found that the charges levelled against the petitioner was proved and that the petitioner had in fact allowed 22 passengers to travel without a valid ticket. The labour court also found that the checking team had penalised the passengers by issuing them the tickets and also imposed a fine amounting to ten times the fare. On the strength of this finding, the labour court while exercising its powers under Section 6 (2A) of the U. P. Industrial Disputes Act, found that the order of the removal of the service of the workman did not commensurate with the misconduct and that the punishment was too harsh and that it pricked the conscience of the Tribunal and consequently, directed reinstatement of the workman with full back wages, less stoppage of two increments with future effect. The Corporation, being aggrieved by the award, has filed the present writ petition. At the time of the admission of the writ petition, an interim order was granted, staying the award of backwages. As a result of the interim order, the respondent workman was reinstated in service. The learned counsel for the petitioner submitted that once the domestic inquiry was found to be fair and proper and the charges levelled against the workman stood proved, the labour court should not have been interfered in the discretion exercised by the employer in passing the order of removal of the service of respondents and could not have substituted the punishment order with a lesser punishment. The learned counsel for the petitioner submitted that the misconduct against the workman stood proved not only in the domestic inquiry but also by the labour court and such misconduct was sufficient to invite the order of removal of service. The learned counsel placed reliance upon a decision of the Supreme Court in V. Ramana v. A.P.S.R.T.C. and others, (2005) 7 SCC 338 : 2005 (4) AWC 3079 (SC), wherein on checking it was found that the bus conductor had not issued tickets to a large number of passengers, the Supreme Court held that substitution of a lesser punishment was based on misplaced sympathy of the Court which could not be passed when the conductor had allowed the passengers to board the bus without collecting the fare in violation of the regulations framed by the Corporation. The learned counsel further submitted that the discretion exercised by the employers was fair and proper and that the labour court committed an error in substituting the punishment with a lesser punishment.
(3.) UPON hearing the learned counsel for the petitioner at some length, this Court is of the opinion that the award of the labour court in reinstating the workman does not suffer from any error of law. The labour court has been given ample powers under Section 6 (2A) of the U. P. Industrial Disputes Act to substitute a lesser punishment for the discharge or dismissal, as the circumstances of the case may require. In the present case, there is no finding that the workman had realised the fare from the passengers and had not issued the tickets to the passengers. There is no charge that the action of the workman brought a loss of revenue to the Corporation. The only charge was that the workman allowed the passengers to board the bus without first purchasing a ticket. No doubt there are instructions of the Corporation which directs the conductors not to allow any passengers to board the bus without first obtaining a ticket but, these instructions are never followed and the general rule is, that the passengers board the bus and the tickets are issued by the conductors when the bus is in motion on its way to the destination. Consequently, in the absence of any charge that the workman had allowed the passengers to board the bus on extraneous consideration or had brought a loss of revenue to the Corporation, there can be no deeming provision to the effect that passengers boarding the bus without ticket would mean that the conductor had allowed the passengers to board the bus on extraneous consideration. This presumption can be accepted in certain cases when there is no other evidence, but in the present case, this presumption is rebutted in the light of the evidence that the passengers, were issued the tickets by the checking team upon payment of penalty and that, none of the passengers protested that they had paid the fare to the conductor, who had failed to issue the tickets. In view of the aforesaid, this Court comes to the conclusion that the award of removal of service of the workman was grossly disproportionate with the misconduct. Such order of removal cannot be allowed to stand as it pricks the conscience of the Court. Consequently, the award of the labour court directing reinstatement of the workman was justified and no interference is made on this aspect of the matter.;