SUPREME COURT OF INDIA
U.P.S.R.T.C
Vs
Mitthu Singh
Civil Appeal No. 3536 of 2006
(C. K. Thakker and Markandeya Katju, JJ)
18.08.2006
C. K. THAKKER, J.
Leave granted.
This appeal is filed against an order passed by the High Court of Judicature at
Allahabad on August 12, 2004 in Civil Miscellaneous Writ Petition No. 49182 of
2000 by which the High Court dismissed the petition filed by Uttar Pradesh
State Road Transport Corporation ('Corporation' for short) confirming the order
passed by the Labour Court, U.P., Varanasi on September 21, 1999 in
adjudication Case No. 157 of 1997.
2. Few relevant facts of the case are that the sole respondent herein was
working as Driver with the appellant Corporation. It was the case of the
appellant that the respondent had committed misconduct at several times and was
punished. It was alleged that on April 25, 1994 while the respondent was
driving Bus No. U.P. 65/223 on Varanasi-Kota route, the checking squad, at
about 4.00 p.m., near Dibulganj, gave signal to stop the bus for checking. The
respondent, however, did not stop the bus and no checking could be made by the
squad. Again, on May 15, 1994, the respondent was driving the same bus on
Shakti Nagar route and at about 2.30 p.m., a signal was given near Chopan to
stop the bus for checking. The respondent, however, ignored the signal and went
away. Again on September 21, 1994, the respondent was driving Bus No. U.P.
65/6689 on Shakti Nagar route and in spite of giving signal by checking squad
near Rihand Bridge at about 4.00 p.m.. he did not stop the bus. In view of the
conduct and behaviour of the respondent, on August, 26, 1996, the checking
squad submitted reports against the respondent in respect of the above three
incidents. Enquiry was initiated against the respondent, charge sheet was
issued, the respondent filed reply denying the allegations, the Enquiry Officer
gave full opportunity of defence to the respondent and submitted enquiry report
holding the charges proved. A show cause notice was thereafter issued to the
respondent enclosing therewith a copy of the enquiry report. The respondent
filed reply to the show-cause notice which was considered by the appointing
authority and by an order dated November, 4, 1996, the appointing authority,
after considering entire material, passed an order terminating the services of
the respondent. The appeal filed by the respondent also came to be dismissed.
The respondent approached the Labour Court, Varanasi in 1997 pursuant to
reference was made in respect of following dispute for adjudication.
"Whether the termination of services by the employers of their Workman
Mitthu Singh S/o Shiv Murat Singh, Driver w.e.f. 04-11-1996 is legal and/ or
valid ? If not, then to what relief the workman is entitled?
3. It was the case of the respondent-workman before the Labour Court that he
was working as a Driver for the last 25 years and the Traffic Superintendent
and Traffic Inspector, due to malice, submitted wrong reports against him.
Reporting Officer could not appear before the Enquiry Officer and could not be
examined. The Corporation, in its reply; stated that the respondent was
dismissed even earlier in 1975 but by taking a lenient view, he was reinstated
by giving another chance to improve. Even thereafter, several times,
punishments were awarded and warning had been issued as he was not improved. He
refused to stop the bus at all the tree occasions in spite of signal given by
the checking squad. A fair and proper enquiry was held wherein the charges were
found duly proved. After giving an opportunity to defend, an action was taken
which could not be said to be illegal or contrary to law and hence the workman
was not entitled to any relief.
4. The Labour Court, however, allowed the petition holding that in absence of
evidence of the Reporting Officer, it could not be said that the charges
levelled against the workman were proved. No independent witness, according to
the Labour Court, had been examined and hence the workman was entitled to
reinstatement. The Labour Court also proceeded to observe that even if it was
assumed that a signal was given to the workman to stop the bus and he did not
stop it, it could have been chased by the staff car, but that course was not
adopted. From that, according to the Labour Court, it was clear that the
checking squad was not sure whether the driver had intentionally not stopped
the bus. Therefore, even if the allegation was correct, there was no
ill-intention on 'he part of the driver. Regarding the last incident, the
Labour Court observed that there were several passengers and it was possible
that a signal might have been given by the checking squad but it might not have
been noticed by the workman. The Labour Court noted that the members of the
checking squad had submitted a report against the workman. It also held that
the workman had failed to prove that the checking squad had enmity with them.
The Court then stated;
"Therefore, I am agreeable to the contention of enquiry Officer to the
extent that the signals must have been given but it is not proved that the
Driver intentionally did not stop the bus on those signals".
5. The Labour Court proceeded to observe that if certain passengers were
allowed to board the bus without tickets, besides the driver, proceedings ought
to have been initiated against the Conductor also but it was not done. In the
circumstances, according to the Labour Court, there was no justification for
giving hard punishment of termination from service to the driver. At the most,
it would be sufficient to give him warning for the future. In view of above
reasoning by the Labour Court, the workman was reinstated with continuity in
service and back wages during the period of unemployment.
6. The Corporation approached the High Court by filing a petition which was
dismissed by the Court observing that the Labour Court passed the order on the
basis of evidence on record and all findings were findings of fact. According
to the High Court, the award did not suffer from any illegality on the face of
the record and no interference was called for. Accordingly, the petition was
dismissed.
7. On January 31, 2005, this Court issued notice "limited to the question
of back wages". The respondent, thereafter, appeared and filed his
counter-affidavit.
8. We have heard the learned counsel for the parties. The learned counsel for
the appellant-Corporation submitted that the Labour Court as well as the High
Court had committed an error of law and of jurisdiction in interfering with the
order passed by the appointing authority and confirmed by the appellate
authority. It was submitted that all throughout the service record of the
workman was unsatisfactory. Before about 30 years, he was dismissed from
service but a chance was given to him so that he may improve. He was,
therefore, taken back but he was not improved. There were several lapses on the
part of the workman even in the past prior to three incidents in question for
which proceedings had been initiated. It was submitted that the jurisdiction of
the Labour Court was not appellate in nature. Moreover, the Labour Court was
not exercising jurisdiction in a criminal case which required proof 'beyond
reasonable doubt'. When reports were submitted by checking squad and the Labour
Court recorded a finding that the workman could not show any enmity and on the
basis of such reports, an action was taken by the disciplinary authority which
was confirmed by the appellate authority, there was no reason for the Labour
Court to enter into correctness or otherwise of such findings and to hold that
the action of the authority was not proper. The order passed by the Labour
Court, therefore, required interference. It was submitted that the High Court
also committed the same error by not exercising judicial power in consonance
with law and the appeal, therefore, deserves to be allowed.
9. The learned counsel for the respondent, on the other hand, supported the
order passed by the Labour Court and confirmed by the High Court. He submitted
that on the basis of the evidence produced by the parties, the Labour Court
recorded certain findings which cannot be said to be perverse or unreasonable
which deserve interference by this Court when those findings were not disturbed
by the High Court. He, therefore, submitted that the appeal deserves to be
dismissed.
10. Having heard the learned counsel for the parties and keeping in view the
limited notice issued by this Court regarding payment of back wages, we are
clearly of the opinion that the appeal deserves to be partly allowed. In our
view, the submission of the learned counsel for the Corporation is well founded
that such matters required to be disposed of on the doctrine of 'preponderance
of probability' and not proof 'beyond reasonable doubt'.. Considering the facts
in their entirety, it is clear that not once, not twice but at three occasions,
the checking squad asked the workman to stop the bus so as to enable them to
undertake checking, the workman had not stopped the bus. A report was, therefore,
submitted and charge-sheet was issued to the Driver. After considering the
evidence of Vanshraj Singh, Traffic Superintendent and the attenuating
circumstances and the report as also the explanation put forward by the driver-
workman, a finding was recorded by the Enquiry Officer that the allegations
against the workman were found proved. When the respondent-workman was not in a
position to show why checking squad had falsely implicated him without there
being any enmity and it was believed by the Labour Court, in our view, the
Labour Court had committed serious illegality as well as jurisdictional error
in interfering with the finding of guilt recorded by the Enquiry Officer and
the order passed by the disciplinary authority and confirmed by the appellate
authority. The Labour Court was also clearly wrong in observing that it was
possible that signal might have been given by the checking squad but it might
not have been noticed by the driver. According to the workman, the case was got
up, concocted and falsely filed against him. Similar was the observation by the
Labour Court regarding absence of initiation of proceedings against the
Conductor. It was a totally irrelevant and non-existent consideration.
According to the Labour Court, if checking squad was of the view that
passengers were taken by the Conductor without issuing tickets, enquiry ought
to have been initiated against the Conductor also, but it was not done. The
Labour court had failed to appreciate the most material and vital fact that unless
the bus was stopped by the respondent-workman and checking squad had undertaken
checking, no action could have been taken against Conductor as it was only on
the basis of checking that the checking squad could be able to know whether
passengers were travelling without tickets. When the bus was not stopped and
could not be checked, there was no occasion for the authorities to initiate
proceedings against the Conductor and no such proceedings in law could have
been initiated. Another factor considered by the Labour Court was that if the
respondent-workman did not stop the bus in spite of signal being given by the
checking squad, the checking squad could have chased the bus. In our view, the
question was not whether checking squad could have chased the bus. 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. In our opinion, therefore,
in the facts and circumstances, the Labour Court could not have interfered with
the orders passed by the disciplinary authority and confirmed by the appellate
authority. The award passed by the Labour Court, hence, deserved to be quashed
and set aside. The High Court committed an error in confirming the award of the
Labour Court.
11. Since limited notice was issued with regard to payment of back wages, we do
not enter into the larger question whether the action of terminating the
services of the respondent was legal, proper and in consonance with law. But we
are fully satisfied that in the facts and circumstances of the case, back wages
should not have been awarded to the respondent-workman. In several cases, this
Court has held that payment of back wages in a discretionary power which has to
be exercised by a court/tribunal keeping in view the facts in their entirety
and neither straight jacket formula can be evolved nor a rule of universal
application can be laid down in such cases.
12. In General Manager, Haryana Roadways v. Rudhan Singh 2005 (5) SCJ 460
= 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.
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 the vacancy or inviting applications from the
employment exchange, 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 character cannot be compared to short or
intermittent daily-wage employment though it may be for 240 days in a calendar
year".
13. Again, in Allahabad Jal Sansthan v. Daya Shankar Rai 2005 (4) SCJ 695
= after considering the relevant cases on the point, the Court stated:
'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 ail, 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".
14. Recently, in U.RS.R.T.C. Ltd. v. Sarada Prasad Misra = 2006 (4)
SCC 733 =JT20O6(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;
From the above cases, it is clear that no precise formula can be adopted nor
'case 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 principles of
justice, equity and good conscience, should pass an appropriate order.
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.
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 times, the
respondent-workman was warned. It was, therefore, not a fit cse 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.
17. For the foregoing reasons, the appeal is partly allowed. The order passed
by the Labour Court and confirmed by the High Court is set aside t0 the extent
of granting back wages and k is had that the respondent workman is not entitled
to back wages. The appeal is accordingly disposed of. In the facts and
circumstances of the case however, there shall be no order as to costs.