THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT APPEAL No.441 of 2022
JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Mr. A.Srinivasa Reddy, learned counsel for the
appellant and Mr. V.Narasimha Goud, learned counsel for
the respondent.
2. This appeal is directed against the order dated 05.11.2018 passed by the learned Single Judge disposing of W.P.No.23883 of 2008 filed by the respondent as the writ petitioner.
2.1. Respondent had filed the related writ petition for quashing of award dated 02.08.2008 passed by the Industrial Tribunal cum Labour Court, Godavarikhani, Karimnagar (briefly 'the Labour Court' hereinafter), further seeking a direction to the appellant for reinstatement in service with all consequential benefits.
3. It may be mentioned that respondent was serving under the appellant as a conductor, he having joined on 2 03.05.1988. His service was regularized with effect from 01.07.1989. A charge sheet dated 05.05.2004 was issued by the appellant to the respondent levelling 10 charges against the respondent all relating to cash and ticket irregularities detected in the course of surprise checking on 13.04.2004 in Bus No.3877 between Adilabad and Mediguda in which respondent was the conductor.
4. Substance of the allegation against the respondent was that he had earlier issued tickets to 3 passengers on payment of fare who had boarded the bus at Adilabad and were bound for Yapalguda. He had also issued similar tickets to 4 individual passengers who had boarded bus at Adilabad and were bound for Mediguda on payment of fare. Likewise, he has issued one ticket to the passenger who had boarded the bus at Adilabad and bound for Ramai on payment of usual fare. Later on it appeared that he had re- issued the same ticket to other passengers without charging fare.
5. From the materials on record, it is seen that respondent did not file reply to the charge sheet. However, to ensure that respondent was granted reasonable 3 opportunity to defend himself, a domestic enquiry was ordered. Enquiry Officer submitted a report dated 12.07.2004 holding that all the charges against the respondent stood proved. Thereafter, the disciplinary authority furnished a copy of the enquiry report to the respondent and sought for his response. Upon receipt of response, a detailed order was passed by the disciplinary authority on 04.09.2004 agreeing with the findings of the Enquiry Officer and thereafter it was ordered that respondent be removed from service with immediate effect. Period of suspension be treated as not on duty.
6. We find that against the aforesaid order, respondent filed a petition under Section 2A(2) of the Industrial Disputes Act, 1947 before the Labour Court. By the award dated 02.08.2008, Labour Court took the view that due procedure was followed by the disciplinary authority while imposing the penalty of removal from service. Accordingly, the petition filed by the respondent under Section 2A(2) of the Industrial Disputes Act, 1947 was rejected.
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7. Assailing the aforesaid order, respondent filed the related writ petition before the learned Single Judge. Learned Single Judge vide the order dated 05.11.2018 was of the opinion that punishment of removal from service imposed by the appellant on the respondent was very disproportionate. Labour Court ought to have applied the proportionality test and thereafter ought to have directed reinstatement of the respondent in service of the appellant as a fresh conductor. Taking the view that punishment of removal from service was shockingly disproportionate, learned Single Judge directed the appellant to reinstate the respondent in service subject to medical fitness as a fresh conductor but without continuity of service, backwages and other attendant benefits. Relevant portion of the order of the learned Single Judge reads as under:
"6. This Court having considered the submissions made by the parties and the gravity of the charges levelled against the petitioner, is of the considered view that the punishment of removal imposed by the respondent-Corporation is very disproportionate and the Labour Court ought to have examined the case of the petitioner and interfered with the punishment of removal by applying the proportionality theory and at 5 least, the Labour Court ought to have directed the respondent-Corporation to reinstate the petitioner into service as fresh conductor. Since the punishment of removal is shockingly disproportionate, this Court feels that ends of justice would be met if the respondent- Corporation is directed to reinstate the petitioner into service as fresh conductor.
7. Accordingly, the Writ Petition is disposed of directing the respondent-Corporation to reinstate the petitioner into service subject to medical fitness, as a fresh conductor, without continuity of service, without back wages and other attendant benefits. No costs.
Consequently, miscellaneous petitions pending, if any, shall stand closed."
8. Aggrieved thereby, appellant has preferred the present appeal. This Court by order dated 08.01.2020 had stayed the order of the learned Single Judge.
9. Submissions made by learned counsel for the parties are on pleaded lines. Therefore a detailed reference to the same is considered not necessary. However, the 6 submissions so made have received the due consideration of the Court.
10. Labour Court vide the award dated 02.08.2008, had referred to the service record of the respondent and held as follows:
"38.......... The proved misconduct of charges as discussed above shows the petitioner's misconduct is grievous in nature, but the conduct of the petitioner for the subsequently charges 5 to 10 are aggravated for the misconduct committed by him, it shows he committing one by one charges like that 5 to 10 charges becomes serious in nature. It is a grave and serious in nature and loss to the corporation. This Court cannot take any lenient view and substitute its own opinion for that of the respondent - management. In this case, as per the counter allegations and Service Record Xerox copy marked under Ex.M-38 shows the punishments censured/warned three (3) times, deferment of annual increments four (4 times, suspended one (1) time, removed and reinstated three (3) times, and this is the 4th time removal. The past record of the petitioner is one of the consideration taken into consideration though the petitioner was removed and reinstated three (3) times, but there is no improvement in his 7 conduct of duties, finally the corporation is left with no alternative, as there is no improvement on the part of the petitioner, but to result to the punishment of removal from service. There is no extenuating circumstances to accept the material on record placed by the petitioner. Having burden on the petitioner to prove his case, but the petitioner failed to discharge his burden. It is well established that this Court should not mechanically use the words punishment being disproportionate to the charges. This Court is required to give reasons as to why the punishment is grossly disproportionate to the discretionary powers cannot be equated with the power of veto. In these circumstances, this Court cannot take any lenient view by considering the powers under the ID Act, and substitute its own opinion for that of the respondent punishment order."
10.1. Labour Court also concluded that all the charges against the respondent were proved in the domestic enquiry. The charges against the respondent were grave in nature and considering the past conduct of the respondent, the penalty imposed did not deserve any interference.
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11. On due consideration, we are of the view that learned Single Judge was not justified in holding that penalty of removal from service imposed upon the respondent was disproportionate. Other than the above, no reason has been assigned by the learned Single Judge to direct reinstatement of the respondent in service as a fresh conductor. Charge of mis-conduct having been proved, it was certainly not open to the learned Single Judge to have directed reinstatement. Past conduct of the respondent also did not justify such a lenient approach.
12. In U.P.State Road Transport Corporation Vs. Suresh Chand Sharma reported in 2010 (6) SCC 555, Supreme Court has taken the view that no interference is called for in imposition of penalty when there is no violation of the principles of natural justice and when the charges against the delinquent stood proved in a domestic enquiry. That was also a case where there were ticketing irregularities. Quantum of fare misappropriated is not relevant in such a case. It is the conduct of the delinquent which is relevant.
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13. In these circumstances, we are of the view that learned Single Judge was not justified in directing reinstatement of the respondent.
14. Consequently, we set aside the order of the learned Single Judge. Accordingly writ appeal is allowed.
Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.
______________________________________ UJJAL BHUYAN, CJ ______________________________________ C.V.BHASKAR REDDY, J 13.12.2022 MRM