THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.21764 of 2014
ORDER:
This Writ Petition has been filed by the petitioner-Andhra Pradesh State Road Transport Corporation (in short 'Corporation') seeking to call for the records pertaining to Award dated 07.06.2013 passed in I.D. No.54 of 2012 by the Labour Court-II at Hyderabad (in short 'Labour Court') and published in G.O.Rt.No.741, dated 06.08.2013, and quash the same.
2) For the sake of convenience, the parties are hereinafter referred to as they are arrayed before the Labour Court.
3) The case of the petitioner-employee is that he joined the services of the respondent-Corporation in the year 1989 as a Conductor. On 11.04.2009 while the petitioner was performing his duties, as conductor, in the bus bearing No.AP23 U 6885 in the route of Veldurthi-Narsapur, at about 1630 hours, a surprise check was conducted at stage No.11/12 wherein the petitioner was found in an intoxicated condition and committed several dereliction in his duty. Thereafter, while placing the petitioner under suspension from 15.04.2009, a charge sheet was issued to the petitioner framing as many as six charges against the petitioner, to which, the petitioner has submitted his explanation. Having dissatisfied with the said explanation, a domestic enquiry was ordered. In the domestic 2 enquiry, the petitioner was found guilty and all the charges were held proved. Thereupon, a show cause notice of removal was issued followed by the order dated 15.12.2009 passed by 4th respondent removing the petitioner from service. Aggrieved by the same, the petitioner filed an appeal and the same was dismissed on 01.02.2010. Further, the Review petition, second review petition and mercy petition filed by the petitioner were rejected/dismissed on 28.04.2010, 07.06.2010 and 02.06.2011 respectively. Questioning the same, the petitioner raised an Industrial Dispute (I.D.) before the Labour Court, which allowed the I.D. in part and modified the order of dismissal to that of reinstatement of the petitioner into service as a fresh recruitee in any pay post of Shramik without protecting his pay and seniority and also held that he is not entitled for any back wages and attendant benefits. Questioning the same, the Corporation is before this Court.
4) Heard Sri A. Srinivas Reddy, learned Standing Counsel, appearing for the respondent-Corporation and Sri A.K. Jayaprakash, learned counsel for petitioner-employee.
5) It has been contended by the learned counsel for the respondent-Corporation that as the explanation submitted by the petitioner to the charge memo was not satisfactory, a domestic enquiry was ordered. The domestic enquiry was conducted in a fair and transparent manner, in accordance with the Rules and due 3 opportunity was provided to the petitioner at every stage of enquiry. Hence, there is no bias on the part of the Enquiry Officer. It is further contended that as the charges against the petitioner were held proved in the enquiry and in view of the gravity of the misconduct, the respondent-Corporation was justified in removing the petitioner from service apart from dismissing the appeal, reviews and mercy petitions filed by the petitioner. It is further contended that the Labour Court, having held that the domestic enquiry was valid, erred in modifying the punishment imposed upon the petitioner, without any valid reasons. It is further contended that once the charges were held proved in the enquiry and the Labour Court held that the enquiry was valid, the Tribunal ought not have taken a lenient view and modified the punishment of dismissal from service by reinstating the petitioner into service as a fresh recruitee in the post of Shramik without protecting his pay and seniority. Hence, prayed to set aside the impugned Award and consequently to restore the order of removal. In support of his contentions, learned counsel has placed reliance on the judgments of the Hon'ble Supreme Court in Divisional Controller, N.E.K.R.T.C. v. H. Amaresh 1 and Deputy Commissioner, Kendriya Vidyalaya Sangthan v. J. Hussain 2.
6) Per contra, the learned counsel for the petitioner-employee has contended that the domestic enquiry was conducted in a biased 1 (2006) 6 SCC 187 2 (2013) 10 SCC 106 4 manner and not conducted in accordance with the Regulations of the Corporation. It is further contended that imposition of punishment of removal from service is grossly disproportionate for the alleged charges against the petitioner. It is further contended that the Tribunal by taking into consideration the long service and also the medical report showing that the petitioner was suffering from epilepsy, has rightly modified the punishment on the ground of proportionality. Hence, prayed to dismiss the writ petition.
7) This Court has taken note of the submissions made by the respective counsel.
8) A perusal of the record, more particularly the impugned Award, discloses that the Labour Court having held that the domestic enquiry was valid, however, interfered with the punishment imposed by the authorities on the petitioner, on the ground of proportionality and has taken a lenient view towards the petitioner by modifying the removal order to that of reinstating the petitioner into service as a fresh recruitee without protecting his pay and seniority.
9) It is to be seen that in a catena of cases, the Hon'ble Supreme Court has held that once the charges are held to be proved and the domestic enquiry was held valid by the Tribunal, the Courts ordinarily shall not interfere with the punishment imposed on the employees. It 5 is apt to refer the ratio laid down by the Hon'ble Supreme Court in this regard.
10) In Amaresh's case (referred supra), the Hon'ble Supreme Court, at paras 20 to 23, held as under:
"20. Once a domestic tribunal based on evidence comes to a particular conclusion normally it is not open to the tribunal and the courts to substitute their subjective opinion in place of the one arrived at by the domestic tribunal.
21. Coming to the question of quantum of punishment, this Court in Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane 3 has held as under:
"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 the corporatio's funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal."
22. We may also beneficially refer to a judgment rendered by a three- Judge Bench of this Court in M.P. Electricity Board v. Jagdish Chandra Sharma 4. This Court held that the tribunals would not sit in appeal over the decision of the employer unless there exists a statutory provision in this behalf. Moreover, the Labour Courts must act within the four corners of the statute concerned, in terms of the provisions thereof.
When the Labour Court had held that Charge 4 stood proved, no interference by the learned Single Judge or by the Division Bench was called for. In the instant case, the jurisdiction vested with the Labour Court has been exercised capriciously and arbitrarily in spite of the 3 (2005) 3 SCC 254 : 2005 SCC (L&S) 407 4 (2005) 3 SCC 401 : 2005 SCC (L&S) 417 6 finding that Charge 4, with regard to the pilferage, has been proved beyond any doubt. In our opinion, the conclusion arrived at by the High Court in ordering reinstatement was shockingly disproportionate in the nature of Charge 4 found proved. When Charge 4 is proved, which is grave in nature, interference with the punishment of dismissal cannot be justified. Similarly, the High Court gets jurisdiction to interfere with the punishment in the exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed is shockingly disproportionate to the charges proved.
23. Ms Anitha Shenoy also cited a recent decision of this Court in Rajasthan SRTC v. Zakir Hussain 5 (Ruma Pal and Dr. AR. Lakshmanan, JJ). The respondent therein was also a conductor of the appellant Corporation. He challenged the termination of his service as being in violation of the provisions of the standing order. However, without availing the remedy available to him under the Industrial Disputes Act, 1947, he approached the civil Courts and obtained decrees in his favour. It was challenged by the management before the High Court. The High Court declined to interfere with the orders passed by the lower court since there is concurrent findings on fact by both the courts below and that no substantial question of law arises, the appellant Corporation preferred the special leave petition before this Court questioning the correctness of the orders passed by the courts below and of the High Court particularly on the question of jurisdiction of the civil courts to entertain and try the suit instead of an industrial dispute. This Court held that the civil court has no jurisdiction and that the jurisdiction cannot be conferred by any by any order of the court and that where an act creates an obligation and enforces the performance in a specified manner the performance cannot be enforced in any other manner. It was held that the employees of the State Road Transport Corporation are not civil servants and, therefore, they are not entitled to protection under Article 311 of the Constitution and that their terms of appointment are governed by the letter of appointment and, therefore, the management was well within its right to terminate the services of the respondent during the period of probation if their services were not found to be satisfactory during the said period and in such an event the appellant 5 (2005) 7 SCC 447 : 2005 SCC (L&S) 945 7 Corporation was not obliged to hold an enquiry before terminating the services. In the concluding part of the judgment, this Court has observed that since the respondent workman has not acted bona fide in instituting the suit, the respondent was not entitled to any back wages and having regard to the facts and circumstances of the said case, it would not be appropriate to order refund of the back wages paid to him and that he shall not be allowed to continue in service any further and shall be discharged forthwith."
11) In Hussain's case (referred supra), the Hon'ble Supreme Court, at paras 7 to 9, held as under:
"7. When the charge is proved, as happened in the instant case, it is the disciplinary authority with whom lies the discretion to decide as to what kind of punishment is to be imposed. Of course, this discretion has to be examined objectively keeping in mind the nature and gravity of the charge. The disciplinary authority is to decide a particular penalty specified in the relevant Rules. A host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in the department or establishment where he works, as well as extenuating circumstances, if any exist.
8. The order of the appellate authority while having a relook at the case would, obviously, examine as to whether the punishment imposed by the disciplinary authority is reasonable or not. If the appellate authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the disciplinary authority. Such a power which vests with the appellate authority departmentally is ordinarily not available to the court or a tribunal. The court while undertaking judicial review of the matter is not supposed to substitute its own opinion on reappraisal of facts.... In exercise of power of judicial review, however, the court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only 8 when the punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of the court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities.
9. When the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. It is, however, to be borne in mind that this principle would be attracted, which is in tune with the doctrine of Wednesbury rule of reasonableness, only when in the facts and circumstances of the case, penalty imposed is so disproportionate to the nature of charge that it shocks the conscience of the court and the court is forced to believe that it is totally unreasonable and arbitrary. "
12) In the light of the above, I am of the view that once the Tribunal held the domestic enquiry as valid, it is not open to it to show misplaced sympathy on the employee and order his reinstatement into service afresh.
13) Further, though the learned counsel for the petitioner-employee has taken the plea of bias on the part of the respondent authorities in conducting domestic enquiry, the same could not be proved by leading evidence before the Labour Court. Therefore, the Labour Court was justified in holding that the enquiry was valid and the same cannot be interfered with by this Court. Further, in view of the law laid down by the Hon'ble Apex Court, in the above referred judgments, the action of the Labour Court in modifying the punishment is liable to be set aside.
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14) For the afore-mentioned reasons, the Writ Petition is allowed, Award dated 07.06.2013 passed in I.D. No.54 of 2012 by the Labour Court-II at Hyderabad and published in G.O.Rt.No.741, dated 06.08.2013, are set aside and the punishment of removal from service imposed on the petitioner-employee holds good. However, the salary and other emoluments already paid to the petitioner employee shall not be recovered from him.
Miscellaneous petitions pending, if any, shall stand closed. No costs.
____________________ PULLA KARTHIK, J Date : 09-10-2023.
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