THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 9874 of 2012
ORDER:
Heard Sri V.Narsinha Goud, learned counsel for the petitioner and Sri K.Srinivas Rao, learned Standing Counsel for the respondents' corporation.
2. The petitioner filed this writ petition to issue an appropriate writ, or direction particularly one in the nature of Writ of Certiorari, to quash the impugned award dated 17.01.2012 passed in I.D.No.32 of 2007, published on 24.02.2012, on the file of Industrial Tribunal-cum-Labour Court, Godavarikhani, Karimnagar District, and in not granting any relief as arbitrary, unjust, illegal and in violation of Article 14, 16 and 21 of the Constitution of India and consequently, direct the respondents' corporation to reinstate the petitioner into service with continuity of service, attendant benefits and back wages.
3. The case of the petitioner, in brief, is as follows:
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a) The petitioner joined the services of the respondents' corporation as conductor on 15.03.1996 through due process of selection and is regularised w.e.f. 27.08.1997.
b) While the petitioner was conducting bus service on 30.07.2005 from Metpally to Regunta ex-stage 1 to 6, a check was exercised by the checking officials just before Stage No.6 and a memo is issued alleging the following allegations:
" 1. For having failed to observe the rule, issue and start.
2. For having collected the bus ticket fare at the boarding place itself and failed to issue ticket to one passenger found alighting without ticket having boarded your bus at Regunta ex-stages 5 to 6 while you were conducting bus No.3031 on 30.07.2005.
3. For having failed to close the SR up to stage No.6 which is marked as XXX.
c) The petitioner explained that when he was in act of issuing ticket to the passenger in question, the checking officials have prevented him from issuing ticket and obtained the check documents as per their wishes under the threat of in sub- ordination. Basing on the charge memo dated 30.07.2005, the petitioner was suspended from service on 08.08.2005 and issued the charge sheet dated 08.08.2005 as follows:
1. For having failed to observe the rule issue and start which constitutes misconduct under Reg.28(xxxi) of APSRTC Employees (Conduct) Reg. 1963.
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2. For having collected the bus ticket fare at boarding place itself and failed to issue tickets to one passenger found alighting without ticket having boarded your bus at Satharam and bound for Regunta ex-stages from 5 to 6 while you were conducting the bus No.3031 of 30.07.2005 and for having torned Rs.3/- deno., ticket bearing No.478/646450 from your ticket tray and kept in your mouth and chewed no sooner the checking officials boarded your bus which constitutes misconduct under Reg. (vi)(a) (xxx) r/w 28(x) of APSRTC Employees (Conduct) Regulations, 1963.
3. For having failed to close the S.R., upto stage No.6 which marked as xxxx which constitutes misconduct as per Reg.28(xxxii) of APSRTC Employees (Conduct) Reg. 1963'.
d) The petitioner submitted explanation to the above charges. Without considering the explanation of the petitioner, the respondents ordered enquiry. The said enquiry was not in accordance with principles of natural justice. Basing on the enquiry, the respondent had removed the petitioner from service in an arbitrary manner and the same was confirmed in appeal and revision in mechanical manner.
e) The petitioner filed I.A.No.32 of 2007 before the Industrial Tribunal-cum-Labour Court, Godavarikhani and the same was dismissed on 17.01.2012 holding that the charges framed against the petitioner were proved and the punishment of removal from WP_9874_2012 4 SN,J service is not excessive, arbitrary and against the principles of natural justice, because the petitioner was given every opportunity to defend his innocence. Therefore, the petitioner filed this writ petition.
4. The respondent corporation filed counter affidavit as follows:
a) The petitioner was appointed as daily wage conductor in the respondent corporation on 15.03.1996 and was regularized w.e.f. 01.08.1997. The petitioner was imposed penalties i.e. censured - 6 times, annual increments deferred
- 6 times prior to his removal from service. As per law, enquiry was conducted
b) The passenger Sri Armoor Narsaiah, R/o Satharam Village has stated that he boarded the petitioner's bus at Satharam Village and alighted without ticket at Regunta Village and he tendered Rs.3/- to the petitioner at Satharam Village i.e. at the boarding point itself, but the petitioner failed to issue ticket to him and that the said statement was confirmed by the petitioner in his spot explanation.
c) The petitioner was placed under suspension w.e.f. 08.08.2005 and later removed from service on 20.01.2006 and his appeal and review petitions were rejected by the WP_9874_2012 5 SN,J Divisional Manager, Jagityal and Regional Manager, Karimnagar on 06.04.2006 and 12.06.2006 respectively. Aggrieved by the said order of removal, the petitioner filed I.D.No.32 of 2007 before the Labour Court, Godavarikhani and the same was also dismissed. The order passed by the Tribunal needs no interference by this Court and hence, the writ petition is liable to be dismissed.
5. During enquiry, the Tribunal marked Ex.W1 to W.3 on behalf of the petitioner and Ex.M.1 to M27 were marked on behalf of the respondent and no witnesses were examined on both sides.
6. The main contentions put forth by the learned counsel for the petitioner are :
a) The burden lies on the prosecution to prove the charges alleged against the Petitioner by adducing the cogent and independent evidence but not for the Petitioner to disprove the charges.
b) When the service driver statement Exhibit M4 was disallowed and when there was no other evidence on record to prove the allegations levelled against the Petitioner except WP_9874_2012 6 SN,J the interested testimony of T.T.I., the Court below erroneously passed the impugned order.
c) The Court below erroneously failed to exercise the power given to it u/s.11A of the I.D. Act. The ticket checking procedure as mandated under the Rules admittedly as borne on records had not been followed in the present case and therefore the order impugned has to be set aside.
d) The Petitioner in his explanation to the above charges levelled against him explained that the Petitioner issued tickets to all the passengers at stage No.5 Satharam and this one passenger had boarded the bus enroute i.e., after passing Satharam stage and delayed the payment of fare amount and by the time the fare amount was collected and the ticket is being issued, the checking officials stopped the bus prior to stage No.6 Regunta and pulled one ticket which was being issued to the one passenger. Thus the passenger was not alighting at stage No.6 Regunta is yet to come. Since he had to complete the ticket issue to one passenger and stage No.6 is not reached, the Petitioner has not closed the tray numbers in the S.R. It cannot be termed as misconduct. The distance from boarding place and check place is very meager and WP_9874_2012 7 SN,J negligent. The fare amount of the bus ticket allegedly involved is Rs.3/- only. The Petitioner did not close the tray numbers in the S.R. As such, no malafide intention can be attributed to him and moreover the ticket was taken by the TTIs from the hands of the Petitioner. Thus punishment of removal from service is highly excessive, harsh and arbitrary and the explanation of the petitioner was not considered at all.
e) The learned counsel for the Petitioner placed reliance on the judgments of the Apex Court given below and urged that the Writ Petition should be allowed as prayed for :
(i) (2018) 12 SCC 41 (paras 3, 4, 5 and 6) -
Andhra Pradesh State Road Transport Corporation, Rep. by Depot Manager v. G. Murali on the point below :
That no single passenger was examined, produced for cross examination and thereby Petitioner is denied of being provided with reasonable opportunity by the Respondent Authority.
(ii) (2013) 4 SCC 301 (paras 22 and also 52.2, 52.3, 52.4) - Nirmala J. Jhala v. State of Gujarat & Another on the points below :
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(a) The Court or the Tribunal in its judicial review has to consider whether the conclusion is based on the evidence of record and supports the finding or whether the conclusion is based on no evidence.
(b) The onus lies on the Department to prove the charge and not the Petitioner.
(iii) (2015) 2 SCC 610 (para 14) - Union of India & Others versus P. Gunasekaran on the point that the High Court may undoubtedly interfere where the Departmental Authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence on the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds.
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(iv) AIR 1982 SC 1552 (para 7) - Ramakanth Misra versus State of U.P. & Others in Civil Appeal No.1531/1980, dt. 21-10-1982 on the point that the Labour Court has the jurisdiction and power to substitute its measure of punishment in place of the managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. As per Sec.11A of the Industrial Disputes Act, 1947.
7. The main contentions put-forth by the learned Counsel for the Respondent are as follows:
a) The Petitioner is bereft of clean record and was imposed penalties prior to his removal from service i.e., Censured 6 times, Annual Increment Deferred 6 times.
b) The Petitioner participated in the enquiry and the enquiry officer has examined Sri K.M. Reddy, E-61677, T.T.I. in the presence of the Petitioner.
c) The Petitioner failed to issue ticket even after collecting the requisite fare of Rs.3/- at the boarding point itself and therefore the Petitioner committed misconduct, which is serious in nature and therefore the punishment imposed by WP_9874_2012 10 SN,J the Respondent on the Petitioner of removal from service is in conformity with the gravity of the charges.
d) The learned Counsel for the Respondent also placed reliance on para No.16 of the order impugned and contended that the Petitioner's counsel filed a Memo on 22-09-2010 U/s.11-A of the I.D. Act, stating that the Petitioner did not dispute the validity of domestic enquiry and prayed to decide the matter on material available on record and the same had been recorded and therefore the Petitioner at this stage cannot contend that the enquiry was improper and further that the Petitioner himself admitted his guilt in the conductor's spot explanation submitted by him.
e) The learned Counsel for the respondent placed reliance on the judgments of the Apex Court given below and contended that the Writ Petition should be dismissed :
(i) The judgment of the Apex Court reported in (2015) 2 SCC 610 (paras 12 & 13) - Union of India & Others v. P. Gunasekaran on the point that the High Court cannot re-appreciate the evidence.
(ii) The judgment of the Apex Court reported in (2005) 3 SCC 254 - (paras 8 & 9) - Divisional Controller, KSRTC (NWKRTC) v. A.T.Mane on WP_9874_2012 11 SN,J the point that 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.
(iii) The judgment of the Apex Court reported in (2006) 8 SCC 108 - (paras 7, 8 & 9) in the U.P. State Road Transport Corporation, Dehradun v. Suresh Pal on the point that the Petitioner was a conductor and held the position of trust and if an incumbent like the Petitioner starts misappropriating the money by not issuing a ticket and pocketing the money thereby causing loss to the Corporation then that is a serious misconduct and on the point that normally the Courts do not substitute the punishment unless they are shockingly disproportionate and if the punishment is interfered or substituted lightly in exercise of their extra ordinary jurisdiction then it will amount to abuse of the process of the Court.
(iv) The judgment of the Apex Court reported in (2015) 17 SCC 603 - (para 17) in Uttar Pradesh State Road Transport Corporation & Another v. Gopal Shukla & Another on the point that the conductor holds the post of the trust under Corporation and therefore he should not allow WP_9874_2012 12 SN,J anything to creep in which would make him a person of questionable integrity.
8. PERUSED THE RECORD.
DISCUSSION AND CONCLUSION
9. As per the contents of the charge sheet dated 08.08.2005 the charges framed against the Petitioner are as follows :
CHARGES :
1) "For having failed to observe the rule issue and start which constitutes misconduct under Reg.28 (xxxi) of APSRTC Employees (Conduct) Reg. 1963".
2) "For having collected the bus ticket fare at boarding place itself and failed to issue tickets to one passenger found alighting without ticket having boarded your bus at Satharam and bound for Regunta ex-stages from 5 to 6 while you were conducting the bus No.3031 on 30-07-2005 and for having torn Rs.3/- deno., ticket bearing No.478/646450 from your ticket tray and kept in your mouth and chewed no sooner the checking officials boarded your bus which constitutes misconduct under Reg.28 (vi)(a) (xxx) r/w 28 (x) of APSRTC Employees (Conduct) Reg. 1963".
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3) "For having failed to close the S.R. upto stage
No.6 which marked as XXXX which constitutes misconduct as per Reg. 28 (xxxii) of APSRTC Employees (Conduct) Reg. 1963".
10. The relevant findings arrived at paras 25, 28 and the conclusion arrived at by the Court below at para 34 are as follows :
"25 - Of course the enquiry officer for concluding his findings also made reliance on the statement of service driver, marked under Ex.M-4. But his statement was not attested by the Petitioner, though it was said to have been taken at the time of exercise of check, nor the service driver was not examined before the enquiry officer. So the reliance of the enquiry officer on the statement of the service driver is not proper. But his reliance on other documents and the statement of the one of the TTIs is proper and correct, as such his findings are with reasons and supported by evidence.
28 - The respondent only marked Ex.M-27 xerox copy of S.R. of the petitioner, but without filing the original S.R. no evidentiary value can be attached to Ex.M-27. Therefore, I am under the considered opinion that the respondent failed to prove the alleged previous punishments imposed against the petitioner, prior to the present case.
34 - In the light of the above reported case, mere fact that this was the first occasion when the petitioner was caught for cash and ticket irregularity, it cannot be a ground to say that the punishment of removal from service is WP_9874_2012 14 SN,J arbitrary, excessive harsh and against the principles of natural justice. Then, if the charges are found to be proved against the petitioner this Tribunal can confirm the termination of the petitioner from service. "
11. This Court opines that as borne on record in so far as charge No.2 is concerned, it is evident that there is no evidence on record to support charge No.2 levelled against the Petitioner. The Court below having held at para 25 of the Order dt. 17.01.2012 in I.D.No.32 of 2007 that the service driver was not examined before the enquiry officer so the reliance of the enquiry officer on the statement of the service driver is not proper, ought not have held charge No.2 as proved against the Petitioner. A bare perusal of the rules in force relating to the ticket checking procedure followed by the Respondent Corporation as per its circular guidelines clearly indicates that the checking officials should try to collect independent evidence of fellow passengers or drivers of the buses wherever possible and also record the full address of the passengers connected with the irregularity and witnesses if any while framing charges. But in the present case admittedly record clearly WP_9874_2012 15 SN,J indicates that said ticket checking procedure or the method of checking contemplated under the rules had not been followed. The Court below having held at para No.28 of its Order that the Respondent failed to prove the alleged pervious punishments imposed against the Petitioner prior to the present case ought not have held charge No.2 against the Petitioner as proved when there was no evidence at all on record substantiating the said charge and more so when the Court below observed that the statement of service driver could not be relied upon. This Cout opines that the second charge which is based mainly on the driver, Metpally, Sri Ch.A.Rao's statement and the same has been admittedly rejected by the Labour Court, then the finding of the Labour Court on charge No.2 itself is perverse. The fare amount of the bus ticket allegedly involved is Rs.3/- only and since the Petitioner did not close the tray numbers in the S.R. as such no malafide intention admittedly can be attributed to the Petitioner, therefore charge No.3 eventually also cannot be held as WP_9874_2012 16 SN,J proved, which has however, been mechanically held as proved by the Court below.
12. The learned counsel for the Respondent though places reliance on paras 4 & 5 of the Counter Affidavit and contends that the Petitioner is bereft of clean record, the same cannot be taken into credence due to the finding of the Court below at para No.28 of the present impugned order which clearly observed that the Respondent herein failed to prove the alleged previous punishments imposed against the Petitioner prior to the present case.
13. This Court opines that the finding of mis-conduct arrived at by the Court below is vitiated on account of want of substantial material evidence and further that the extreme penalty of dismissal or discharge in the present case was not justified in the facts and circumstances of the present case as discussed above, meaning thereby, that the penalty imposed for the alleged misconduct of the petitioner does not infact commensurate with the gravity of the offence charged.
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14. A Division Bench of this Court in a judgment reported in (2002) 1 ALT 64 (DB) in W.P.No.17361/1994, dt. 15-11-2001 at para 10 observed as follows :
"This takes us to the second contention of the learned counsel for the petitioner. Undoubtedly, the Labour Court has the discretionary power under Section 11-A of the Act to alter or modify the penalty imposed by the Disciplinary Authority, if it is of the opinion that the penalty imposed by the Disciplinary Authority, in the facts and circumstances of the case, is disproportionate to the gravity of the mis- conduct. It is also a well-settled position that this Court also while reviewing the Industrial Award under Article 226 of the Constitution in appropriate cases can exercise the same power, which is available to the Labour Court under Section 11-A of the Act".
15. The Apex Court in its recent judgment reported in (2022) SCC Online SC 284 in Union of India & Others v. Managobinda Samantary1 at para 9 observed as follows:
"Quantum of punishment is within the discretionary domain and the sole power of the decision making authority once the charge of misconduct stands proved. Such discretionary power is exposed to judicial interference if 1 (2022) SCC Online SC 284 WP_9874_2012 18 SN,J exercised in a manner which is grossly disproportionate to the fault, as the constitutional courts while exercising the power of judicial review do not assume the role of the appellate authority. Writ jurisdiction is circumscribed by limits of correcting errors of law, procedural error leading to manifest injustice or violation of principles of natural justice. The decision are also disturbed when it is found to be ailing with perversity. On the question of quantum of punishment, the court exercising the power of judicial review can examine whether the authority has been a reasonable employer and has taken into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and excluded irrelevant matters. In the context of quantum of punishment these aspects are examined to consider whether there is any error in decision making process. On merits of the quantum of punishment imposed, the courts would not interfere unless the exercise of discretion in awarding punishment is perverse in the sense the punishment imposed is grossly disproportionate".
16. This Court opines that the judgements relied upon by the Counsel for the Respondent have no relevance to the facts and circumstances of the present case. Taking into consideration the law laid down by the Apex Court in the judgments relied upon by the Counsel for the Petitioner in (i) (2018) 12 SCC 41 (paras 3, 4, 5 and 6)
- Andhra Pradesh State Road Transport Corporation, Rep. by Depot Manager versus G. Murali, (ii) (2013) 4 WP_9874_2012 19 SN,J SCC 301 (paras 22 and also 52.2, 52.3, 52.4) - Nirmala J. Jhala versus State of Gujarat & Another, (iii) (2015) 2 SCC 610 (para 14) - Union of India & Others v. P. Gunasekaran and (iv) AIR 1982 SC 1552 (para 7) - Ramakanth Misra versus State of U.P. & Others in Civil Appeal No.1531/1980, dt. 21-10-1982, and taking into consideration the judgement of the Apex Court reported in (2022) SCC Online SC 284 in Union of India & Others versus Managobinda Samantary (para 9) and also Division Bench judgment reported in (2002) 1 ALT 64 in P.Rajanna versus Labour Court, Godavarikani and Another, dt. 15-11-2011 passed in W.P.No.17361/1994 (para 10), the Writ Petition is liable to be allowed
17. Accordingly, the writ petition is allowed quashing the impugned award dated 17.01.2012 passed in I.D.No.32/2007, published on 24,02,2012 on the file of Industrial Tribunal-cum-Labour Court, Godavarikani, Karimnagar District since the same is found to be perverse.
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18. Taking into consideration that the Petitioner
retired from service on 31.07.2012 and expired on 26.08.2020, there cannot be any direction for reinstatement of the Petitioner into service. It is made clear that the impugned award is set aside only for computation of pension and other pensionary benefits and for no other purpose.
19. This Court had ordered I.A.No.1 of 2021 in W.P.No.9874 of 2012 and the 2nd Petitioner is brought on record in W.P.No.9874/2012 in the capacity of legal heir of the 1st Petitioner as per Court order dated 08.06.2022.
Miscellaneous petitions, if any, pending shall stand dismissed.
_________________ SUREPALLI NANDA, J Date: 10.10.2022 Note: L.R.copy to be marked b/o kvrm