HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 15460 OF 2009
ORDER:
Petitioner called in question the Award dated 10.09.2008 in I.D.No. 50 of 2008 on the file of the Industrial Tribunal-II, Hyderabad in so far as not granting continuity of service and other consequential benefits including back-wages. He therefore, seeks a direction to the respondent Corporation to treat him as reinstated into service with contionuty of service and other consequential benefits and back-wages.
2. Petitioner joined services of the respondent Corporation on 30.09.1996 as Conductor through due process of selection. While he was discharging his duties, he was suspended from service alleging cash and ticket irregularities. Departmental enquiry followed. The Enquiry Officer based on the material available, held that the charge was proved. Consequently, he was removed from service by the 2nd respondent on 31.03.2006. Both the Appeal and the Revision preferred by the petitioner were rejected. Aggrieved thereby, petitioner raised I.D.No. 192 of 2006 before the Labour Court-I, Hyderabad. Subsequently, the government transferred the said dispute along with other disputes 2 in 2008 to the Industrial Tribunal-II, Hyderabad which was numbered as I.D.No. 50 of 2008.
Petitioner's case is that on 18.08.2005 while he was conducting the bus on route No. 3K between Kushaiguda and Afzalgunj, a check was exercised at Nallakunta and found all passengers with tickets. However, on 24.08.2005 they served a charge memo. Petitioner is stated to have requested the 2nd respondent to furnish the documents as the charge memo was not prepared in his presence. It is his grievance that passengers had shown old as well as new tickets, but the checking officials ignored new tickets and prepared charge memo. The 2nd respondent furnished documents on 12.09.2005 and petitioner submitted explanation stating that he issued two fresh tickets of Rs.5/- denomination to passengers in question at Arts College who also travelled earlier and therefore, those passengers had shown old and new tickets. In fact, the said passengers found travelling at the time of checking also explained to the TTIs. that petitioner issued correct tickets, but the checking officials took two tickets of Rs.45/- denomination from his tray without his notice and obtained signature on check sheet by showing the signs and fabricated the case against him.
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3. Learned counsel for petitioner Sri V. Narsimha Goud submits that check documents furnished to petitioner clearly demonstrate that signatures were obtained on blank white paper and subsequently, got it written in his absence as well as in the absence of passengers. The writing contained on the alleged passengers' statement would also disclose lot of interpolation. It is stated that enquiry conducted is prima facie illegal and void in law, for, when one of the TTIs. K.R.Mouli was giving his evidence during the course of enquiry, another TTI Mr. Srihari was allowed and he also signed as if he was examined, which is nothing but illegal on the part of the respondents. According to learned counsel, petitioner was paid subsistence allowance up to December 2005 and from January 2006 onwards, the subsistence allowance was not paid which is in violation of the Regulations. Learned counsel submits that the Tribunal erred in holding that his client did not submit explanation to the charge memo because he received the charge memo dated 18.08.2005 on 24.08.2005 and he made representation on 27.08.2005 to the 2nd respondent to furnish relevant documents, however, pending supply of said documents, the 2nd respondent suspended him from service.
4. In the counter-affidavit, it is stated that during the service of petitioner, his annual increment was deferred two times on the allegation of cash and ticket irregularities. It is stated that 4 during the subject check, it was found that petitioner collected Rs.5/- from two passengers and issued tickets but the said tickets were already sold and accounted in Star Document No. 028/616236, dated 18.08.2005 at 10.35 trip, thus tickets were recycled and petitioner misappropriated the legitimate revenue of Corporation. It is further stated that petitioner refused to acknowledge the charge memo and give spot explanation. The checking officials noted down the irregularities detected by them in brief in check sheet dated 18.08.2005 which was acknowledged by the petitioner. The TTIs have also obtained passengers' statements duly attested by the petitioner. As the explanation submitted by him was not convincing, the Depot Manager ordered a detailed enquiry which was conducted duly following the principles of natural justice after giving opportunity to petitioner to defend his case.
5. Learned Standing Counsel for Corporation submits that since two passengers belong to different areas, the Tribunal is right in holding that contention of petitioner that the two passengers travelled in the same bus in morning trip and again boarded the bus is not believable. It is stated that possession of used / invalid tickets and issuing the same to the passengers after collecting fare from them amounts to serious misconduct. He relied on the judgment of the Hon'ble Apex Court in Motilal and 5 UPSRTC 1, wherein it was held that '......it is not only the amount involved but the mental setup , the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, highest degree of integrity and trust- worthiness is must and unexceptionable'.
6. Having heard learned counsel on either side extensively, perused the record.
7. The charge levelled against petitioner is that he recycled the tickets. The petitioner primarily questions in this Writ Petition the manner in which the enquiry was conducted. According to him, charge memo was not served on the spot and his spot explanation was not recorded and passengers' statements contain interpolations, for which, the Corporation's version is that charge memo could not be served on petitioner on account of galata made by the passengers and in cities, the passengers would 1 AIR 2003 SC 1462 6 not allow the driver to stop the bus. It is the further case of the petitioner that the two passengers who possessed the tickets are two individual passengers and they are not related to each other and both of them have shown the old as well as new tickets. However, as the statement of passengers was signed by the petitioner without any protest, the Tribunal believed the version of the Corporation. The Tribunal in the Award observed that the statement of the checking officials recorded during the time of enquiry shows that petitioner cross-examined the checking officials and they stated the reason for not obtaining correct address from the passengers and for not verifying the double punch or due amount. This itself shows that there are some lapses on the part of the Corporation in conducting enquiry. Further, the Tribunal while directing reinstatement of service, observed that no grave irregularities were said to have been committed by him except participating in a strike for one time and he served the Corporation for more than ten years without any mistake on his part except the proved irregularity. In view of the same and in view of the irregularities while conducting enquiry, this Court is of the considered opinion that petitioner is entitled for continuity of service and all attendant benefits also, except back-wages. 7
8. The Writ Petition is accordingly, allowed in part directing the Corporation to grant petitioner continuity of service and all attendant benefits except back-wages. No costs.
9. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 11th October 2023 ksld