1
JSR, J
WP No.5766 of 2006
HIGH COURT FOR THE STATE OF TELANGANA
W.P.No.5766 OF 2006
Between
N.K. Naik, S/o. Bichya, Aged 38 years
Occ : Conductor, E.No. 175059,
R/o.Achammakunta Thanda
Post : Madikonda, Deverakonda Mandal
Nalgonda District.
...Petitioner
And
APSRTC, rep. by its Divisional Manager,
Nalgonda Division, Nalgonda
And another.
...Respondents
DATE OF THE ORDER PRONOUNCED: 08.11.2022
SUBMITTED FOR APPROVAL:
HONOURABLE SRI JUSTICE J.SREENIVAS RAO
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the judgment?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Their Lordships wish to Yes/No
see the fair copy of the judgment?
___________________________
JUSTICE J.SREENIVAS RAO
2
JSR, J
WP No.5766 of 2006
HONOURABLE SRI JUSTICE J.SREENIVAS RAO
+W.P.No.5766 OF 2006
% DATED 08TH NOVEMBER, 2022
Between
# N.K. Naik, S/o. Bichya, Aged 38 years
Occ : Conductor, E.No. 175059,
R/o.Achammakunta Thanda
Post : Madikonda, Deverakonda Mandal
Nalgonda District.
...Petitioner
And
$ APSRTC, rep. by its Divisional Manager,
Nalgonda Division, Nalgonda
And another.
...Respondents
! Counsel for the petitioner : Sri V. Narasimha Goud
^ Counsel for respondents : Sri Toom Srinivas
< GIST :
> HEAD NOTE :
? Cases referred: :
1
Manu/Hy/0014/2017
2
(2005) 3 supreme Court Cases 254
3
JSR, J
WP No.5766 of 2006
HONOURABLE SRI JUSTICE J.SREENIVAS RAO
W.P.No.5766 OF 2006
ORDER:
Heard Sri V. Narasimha Goud, learned counsel for the petitioner and Sri Toom Srinivas, learned Standing Counsel for the respondents.
2. The petitioner filed this writ petition under Article 226 of Constitution of India seeking the following relief:
".... to issue an appropriate writ or direction particularly one in the nature of Writ of Certiorari, quash the impugned award dated 13.01.2004 made in I.D. No.144 of 2001, published on 04.04.2004, insofar as denying the past service, entire back wages and attendant benefits as arbitrary, unjust, in violation of Articles, 14, 16 and 21 of the Constitution of India and consequently direct the respondents' corporation to pay back wages along with all consequential benefits..."
3. The learned counsel for the petitioner contended that the petitioner joined in the respondent-Corporation as "Conductor" in the year 1996 and his services were regularised on 28.10.1998. While he was conducting the bus service on 20.11.2001 in between Kambhalapally and Devarakonda a cheque was exercised by the checking officials at the Stage No.9/8 and they issued a memo finding out certain cash and ticket irregularities. Thereafter the 2nd respondent 4 JSR, J WP No.5766 of 2006 issued a charge sheet suspending the petitioner pending enquiry on 20.09.2000 with following charges:
1. "For having issued used ticket bearing No.932/260674 of Rs.10.00 denominations to an individual passenger who boarded the bus at Kambhalapally Stage No.13 and bound for Teldevarapally Stage No.7 from whom you have collected at the rate of Rs.10.00 towards requisite fare which constitutes misconduct in terms of Reg.20 (xxiii) and (xxiii) of APSRTC Employees' ticket 932/260674 of Rs.10.00 denominations is shown and accounted in S.R. No. A6/3103482 dated 20/21-11-2000 as having issued at Stage No.7 in the 11.30 Devarkonda - Kambhalapally trip".
2. "For having closed the Rs.3.00 denomination as 144/808685 instead of 144/808695 at Stage No.9 after issuing 6 tickets at Stage No.10 while coming from Kambalapally to Devarkonda which constitutes misconduct in terms of Reg. 28 (via) of APSRTC employees' (Conduct) Reg. 1963".
3. "For having torn ticket No.932/260675 of Rs.10.00 denomination from your tray at the time of checking when the checking officials gave you the tray while framing the case and asked them to close the S.R. including this ticket thus cheated the checking officials which constitutes misconduct under Reg. 28 (x) and (xxxii) of APSRTC Employees (Conduct) Reg. 1963".
3.1. The learned counsel for the petitioner submits that the petitioner submitted explanation to the Charge Sheet and the respondent- Corporation appointed enquiry officer to conduct de nova enquiry. The enquiry officer without properly considering the evidence submitted enquiry report. The respondent-Corporation without properly considering the explanation to the show cause notice, the 2nd respondent awarded a punishment of removal from the service by its order dated 09.04.2001. Questioning the said order the petitioner raised an Industrial Dispute vide I.D. No.144 of 2001 on the file of Labour Court-III, A.P, Hyderabad under Section 2-A(2) of the Industrial 5 JSR, J WP No.5766 of 2006 Dispute Act, 1947. He further contended that the Labour Court allowed the I.D. No.144 of 2001 in part setting aside the removal order dated 09.04.2001 and directed the respondent-Corporation to appoint the petitioner as "Fresher" without back wages and attendant benefits without properly considering the contentions of the petitioner and material evidence. Though the petitioner is entitled all benefits including back wages.
3.2. The learned counsel for the petitioner further submits that the Labour Court while setting aside the removal order passed by the respondent-Corporation dated 09.04.2001 ought to have granted other benefits including back wages. He also submits that the checking officials have deposed in respect of charge No.1 only and there is no other evidence in respect of charge Nos.2 and 3. In such circumstances, the Labour Court ought not have uphold the charge No's.2 and 3 in the absence of any evidence and the same is contrary to law. In support of his contentions, the learned counsel relied upon the Judgment reported in E.S. Anjaneyulu Vs. Regional Manager, (N.R.), APSRTC and Others1.
4. The learned counsel for the respondent vehemently contended that the respondent-Corporation after duly following the principles of 1 Manu/Hy/0014/2017 6 JSR, J WP No.5766 of 2006 natural justice and also the enquiry officer given all opportunities to the petitioner during the course of enquiry. The enquiry officer submitted detailed report to all the charges. He further contended that the charges levelled against the petitioner are serious in nature viz., serious cash and tickets irregularities the respondent-Corporation after considering the explanation submitted by the petitioner respondent-Corporation awarded punishment of removal from the service by its order dated 09.04.2001. The Labour Court after considering the contentions raised by both the parties, documentary evidence on record i.e. Exs.M-1 to M-21 and also after hearing the parties, passed the impugned Award by exercising its discretion under Section 11-A of the Industrial Disputes Act, 1947 and there is no illegality and irregularity in the impugned Award to exercise the jurisdiction by this Court under Article 226 of the Constitution of India.
4.1. In support of his contention the learned Standing Counsel relied upon the Judgment reported in Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane2.
5. This Court having considered the rival submissions made by the learned counsel for the parties and also perused the records. The 2 (2005) 3 supreme Court Cases 254 7 JSR, J WP No.5766 of 2006 respondent-Corporationhad issued a charge sheet on 29.11.2000 for the charges mentioned supra and the petitioner submitted his explanation to the said charges. Thereafter the respondent- Corporation had initiated de novo enquiry by appointing an enquiry officer. The enquiry officer after following the due procedure conducted a detailed enquiry and submitted his report stating that all the charges levelled against the petitioner were proved. Thereafter the respondent-Corporation issued a show cause notice to the petitioner and after considering the explanation imposed the punishment of removal from service on 09.04.2001. Thereafter the petitioner filed an appeal and the appellate authority rejected the appeal on 19.11.2001. The petitioner approached the Labour Court and filed the above I.D.144/2001 by invoking the provisions of Section 2-A (2) of the Industrial Dispute Act 1947. The Labour Court after considering the contentions of both the parties, documentary evidence Exs.M-1 to M-21 and also after hearing both the parties allowed the I.D. in part by invoking the powers conferred under Section 11-A of the Industrial Dispute Act by setting aside removal order and directed the respondent-Corporation to reinstate the petitioner into service as a "Fresher" without any other benefits including back wages. Before the Labour Court the petitioner filed a memo under Section 11-A of the Industrial Disputes Act, 1947 not disputing the procedural aspects of 8 JSR, J WP No.5766 of 2006 conducting domestic enquiry and the Labour Court has given specific finding that the domestic enquiry conducted by the respondent- Corporation is valid.
6. The Labour Court set aside the removal order while exercising its powers conferred under Section 11-A of the Industrial Dispute Act, 1947 on the ground that the petitioner has put up four years of service as on the date of his removal and he is the only earning member of his family and is unemployed since the date of removal from the service and the punishment of removal from service imposed upon the petitioner is disproportionate and does not commensurate with the gravity of misconduct and in those circumstances, the Labour Court directed the respondent-Corporationto appoint the petitioner as "Fresher".
7. In Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane supra, the Hon'ble Supreme Court held as follows:
"9. From the above, it is clear once a domestic tribunal based on evidence comes to a particular conclusion normally it is not open to the appellate tribunals and courts to substitute their subjective opinion in the place of the one arrived at by the domestic tribunal. In the present case, there is evidence of the inspector who checked the bus which establishes the misconduct of the respondent. The domestic tribunal accepted that evidence and found the respondent guilty. But the courts below misdirected themselves in insisting on the evidence of the ticketless passengers to reject the said finding which, in our opinion, as held by this Court in the case of Rattan Singh (supra) is not a condition precedent. We may herein note that the judgment of this Court in Rattan Singh's (supra) has since been followed by this Court in Devendra Swamy vs. Karnataka State Road Transport Corporation (2002) 9 SCC 644}".9
JSR, J WP No.5766 of 2006
10. Since the only ground on which the finding of the domestic tribunal has been set aside being the ground that concerned passengers are not examined or their statement were not recorded, in spite of there being other material to establish the misconduct of the respondent, we are of the opinion, the courts below have erred in allowing the claim of the respondent. In our opinion, the ratio laid down in the above case of Rattan Singh (supra) applies squarely to the facts of this case.
11. In the instant case also, there is the evidence of the inspector who conducted the checking which establishes the misconduct of the respondent based on which a finding was given that the respondent was guilty of the misconduct alleged. Based on the said finding, the disciplinary authority has punished the respondent by an order of dismissal. But the Labour Court, and the learned single Judge rejected the said finding and set aside the punishment imposed solely on the ground that the evidence of the passengers concerned was not adduced and their statements were not recorded by the inspector which as stated in the Rattan Singh's case is not a condition precedent. Therefore, we are of the opinion that the courts below have erred in interfering with the finding of fact on an erroneous basis.
12. 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".
8. The judgment relied upon by the petitioner in E.S. Anjayeyulu Vs. Regional Manager (N.R) APSRTC supra is not applicable to the facts and circumstances of this case.
9. The Labour Court by duly considering the contentions of both the parties, evidence on record gave specific findings and allowed the I.D. in part directing the respondent-Corporation to reinstate the petitioner into service as "Fresher" without service benefits. During the course of hearing, both the learned counsels appearing for the 10 JSR, J WP No.5766 of 2006 parties submits that the respondent-Corporation implemented the award passed by the labour Court and the petitioner was provided employment and he is continuing in service.
10. In view of the foregoing reasons, this Court does not find any illegality, irregularity and error in the impugned award passed by Labour Court to exercise the jurisdiction of this Court invoking under Article 226 of the Constitution of India and the scope of judicial review is very limited and there are no merits in the Writ Petition and the same is accordingly dismissed. No costs.
11. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
_____________________________
JUSTICE J.SREENIVAS RAO
Dated: 08.11.2022
Skj
Note :
L.R. copy to be marked.
(B/o)
Skj
11
JSR, J
WP No.5766 of 2006
HONOURABLE SRI JUSTICE J.SREENIVAS RAO
W.P.No.5766 OF 2006
Dated: 08.11.2022
Skj.