HON'BLE SRI JUSTICE J. SREENIVAS RAO
WRIT PETITION No.1545 OF 2017
ORDER:
This writ petition is filed questioning the impugned Award passed by the Additional Industrial Tribunal-cum-Labour Court at Hyderabad in I.D.No.40 of 2003 dated 30.06.2015 confirming the removal order dated 07.12.2002 passed by respondent No.1.
2. Heard Sri A.G.Satyanarayana, learned counsel for the petitioner, and Sri Thoom Srinivas, learned standing counsel appearing for respondent No.1.
3. Learned counsel for the petitioner submits that the petitioner was appointed as casual Conductor on 18.08.1988 and his services were regularized with effect from 24.11.1989. While he was on duty, the checking officials made allegations against him that he committed cash and ticket irregularities and the petitioner submitted spot explanation. Thereafter, respondent No.1 issued charge sheet dated 30.07.2002 and the petitioner submitted representation dated 05.08.2002 requesting them to supply documents. Without considering the said representation, respondent No.1 initiated regular enquiry and appointed an enquiry officer. The enquiry officer, without giving proper opportunity to the petitioner, conducted ex parte enquiry and submitted enquiry report on 28.10.2002 alleging that the charges levelled against the JSR, J W.P.No.1545 of 2017 2 petitioner are proved. Basing on the enquiry report, the disciplinary authority removed the petitioner from service on 07.12.2002. Questioning the same, the petitioner filed appeal and the appellate authority simply rejected the appeal without giving any reasons, by its order dated 16.04.2003.
3.1. He further submits that aggrieved by the removal order, the petitioner raised a dispute invoking the provisions of Section 2-(A)2 of the Industrial Disputes Act, 1947 (hereinafter called, 'the Act' brevity) vide I.D.No.40 of 2003. The Labour Court without properly considering the contentions of the petitioner dismissed the ID by its Award dated 08.11.2004. Questioning the same, the petitioner filed W.P.No.6169 of 2007 before this Court and learned single Judge of this Court allowed the said writ petition on 15.02.2012 directing respondent No.1 to reinstate the petitioner into service with continuity of service, but without back wages and further directed respondent No.1 to impose the punishment of penalty of withholding of three annual increments with cumulative effect. Aggrieved by the said order, respondent No.1 filed W.A.No.1575 of 2012. The Division Bench of this Court allowed writ appeal by setting aside the order passed by the learned single Judge and remitted the matter to the Labour Court for fresh consideration by JSR, J W.P.No.1545 of 2017 3 providing opportunity to both sides and also given liberty to the petitioner herein to adduce evidence if any, by its order dated 28.03.2013.
3.2. Learned counsel vehemently contended that respondent No.1 has not adduced any fresh evidence before the Labour Court. In spite of the same, the Labour Court, without properly considering the contentions of the petitioner, dismissed the I.D. and passed the impugned Award on 30.06.2015 with same reasons without granting any relief to the petitioner and the same is contrary to law. 3.3. He further contended that the Labour Court while holding that the punishment of removal from service is disproportionate, on the other hand, dismissed the I.D. basing upon the previous conduct of the petitioner and the same is contrary to law. He further contended that the checking officials are not verified the cash bag of the petitioner and not examined the passenger as witness before the enquiry officer to prove the charges. In spite of the same, the disciplinary authority removed the petitioner from service basing upon the ex parte enquiry report submitted by the enquiry officer.
3.4. In support of his contention, he relied upon the judgment of JSR, J W.P.No.1545 of 2017 4 this Court in W.P.No.15528 of 2018 dated 01.10.2018 and Nara Goud v. Industrial Tribunal-cum-Labour Court, Warangal and another 1.
4. Per contra, learned standing counsel contended that the petitioner committed a grave misconduct while discharging his duties. Respondent No.1 after duly following the procedure as contemplated under the Regulations issued charge sheet and conducted regular enquiry by appointing an enquiry officer. During the course of enquiry, the enquiry officer has given several opportunities to the petitioner to defend his case. In spite of the same, the petitioner has not participated in the enquiry. The enquiry Officer after conducting detailed enquiry submitted enquiry report, wherein it is specifically stated that the charges levelled against the petitioner proved. Respondent No.1 after following the procedure including principles of natural justice and after considering the explanation dated 07.12.2002 and also after due verification of the records and enquiry report, the disciplinary authority rightly imposed the punishment removing the petitioner from services by giving cogent reasons through order dated 07.12.2002 and the said order was confirmed in the appeal on 1 1996 (3) ALT 648 JSR, J W.P.No.1545 of 2017 5 16.04.2003. Thereafter, the petitioner raised a dispute before the Industrial Tribunal vide I.D.No.40 of 2003 and the Labour Court dismissed the same on 08.04.2004. Questioning the same, the petitioner filed W.P.No.6169 of 2007 and the same was allowed on 15.02.2012. Aggrieved by the same, respondent No.1 filed W.A.No.1575 of 2012 and the same was allowed and remitted the matter to Labour Court to pass orders afresh by giving opportunity to both sides and also given liberty to the petitioner to adduce evidence on his behalf, by its order dated 28.03.2013. 4.1. Learned standing counsel vehemently contended that pursuant to the orders passed in W.A.No.1575 of 2012, the petitioner has not chosen to produce any iota of evidence before the Labour Court to prove his claim. The Labour Court, after considering the contentions of both parties, documentary evidence, rightly passed the impugned Award by giving cogent reasons, and there is no illegality or irregularity in the said Award.
5. Having considering the rival submissions made by the respective parties and after perusal of the material available on record, it is revealed that respondent No.1 issued charge sheet on 20.07.2002 invoking the Regulation 28 (xxxii) of the TSRTC JSR, J W.P.No.1545 of 2017 6 Employees (Conduct) Regulations 1963. It is very much relevant to extract the said charges hereunder:
1. You have failed to complete the ticket issues before reaching the stage while conducting bus No.5896, on Route No.10K on 20/07/2002 which constitutes misconduct under Reg.28(xxxii) of APSRTC Employees (Conduct) Reg.1963."
2. "You have reissued the ticket No.579/292987 of Rs.3/- den. Which was punched at stage No.1 & 2 Sec'bad stn. In your trip leaving Sec'bad at 17.05 hrs. to a passenger who was found travelling on the said ticket from ESI to Bharatnagar ex.stages 5/6 to 6/7 having collected an amount of Rs.3/- from her while conducting bus No.5896, on route No.10K on 20/07/2002 which constitutes misconduct under Reg.28 (x) & (xxiii) of APSRTC Employees (Conduct) Reg.1963."
3. You have failed to show the stage No.7 in your trip in which check took place left Sec'bad at 17.05 hrs from Kukatpally while conducting bus No.5896, on route No.10K 20/7/2002 which constitutes misconduct under Reg.28(xxxi) of APSRTC Employees (Conduct) Reg.1963."
4. You have possessed ticket No.579/292996 of Rs.3/- den. Punched on stage No.2 in your cash bag at the time of check while conducting bus No.5896, on route No.10K, on 20/07/2002 which constitutes misconduct under Reg.28(xxxi) of APSRTC Employees (Conduct) Reg. 1963."
6. Pursuant to the same, the petitioner submitted explanation on 05.08.2002. Respondent No.1 not being satisfied with the same ordered regular enquiry by appointing an enquiry officer. It appears form the record that the enquiry officer on three occasions had issued notice to the petitioner directing him to appear before the enquiry. The petitioner has not appeared before the enquiry officer. The enquiry officer after following the due procedure JSR, J W.P.No.1545 of 2017 7 submitted enquiry report on 28.10.2002 wherein it is stated that the charges leveled against him are proved. Respondent No.1 issued letter to the petitioner on 02.11.2012 directing him to submit objections to the enquiry officer's report by furnishing the enquiry report. The disciplinary authority not satisfying with the explanation has issued show-cause notice on 18.11.2002 directing the petitioner to submit explanation as to why his services should not be removed. Pursuant to the same, the petitioner submitted his explanation on 02.12.2002. The disciplinary authority after considering the explanation issued order on 07.12.2002 removing the petitioner from service. Questioning the said order, the petitioner filed appeal before the appellate authority and the same was dismissed by its order dated 16.04.2003.
7. Aggrieved by the removal order, the petitioner raised a dispute vide I.D.No.40 of 2003 before the Labour Court and the same was dismissed by its Award dated 07.12.2002. Questioning the same, the petitioner filed W.P.No.6169 of 2007 and the learned Single Judge of this Court allowed the said writ petition on 15.02.2012 directing respondent No.1 to impose punishment of withholding of three annual increments and also further directed respondent No.1 to reinstate the petitioner into service with continuity of service, but JSR, J W.P.No.1545 of 2017 8 without back wages.
8. Aggrieved by the same, respondent No.1 filed W.A.No.1575 of 2012 and the Division Bench of this Court allowed the said appeal by remitting the matter to the Labour Court by its order dated 28.03.2013.
9. It is very much relevant to extract the operative portion of the order, which reads as under:
"Therefore, without going into the merits of the allegations made in the charge sheet and the findings arrived at by the Enquiry Officer in his ex parte report, to meet the ends of justice, we deem it appropriate to set aside the order of the learned single Judge and to remand the matter to the Labour Court for fresh consideration in the light of the observations made above. Respondent No.1 is at liberty to adduce evidence, if any. The Labour Court after providing opportunity to both the sides, shall pass appropriate orders."
10. In the above said order, the Division Bench has given opportunity to the petitioner to adduce evidence on his behalf to prove his claim raised in I.D.No.40 of 2003 before the Labour Court and further directed the Labour Court to pass appropriate orders after giving opportunity to both parties.
11. The contention of learned counsel for the petitioner is that respondent No.1 has not adduced any evidence before the Labour JSR, J W.P.No.1545 of 2017 9 Court nor examined any witness after remand is not tenable under law, on the sole ground that the initial burden lies upon the petitioner to establish the claim made before the Labour Court by adducing necessary evidence. The judgments relied upon by learned counsel for petitioner in W.P.No.15528 of 2018 and Nara Goud (supra 1) are not applicable to present facts and circumstances of case on sole ground that the petitioner in spite of receiving the notice from the enquiry officer failed to attend the enquiry nor produced any evidence before the Labour Court.
12. It appears from the record that the petitioner has not produced any iota of evidence after remanding the matter to the Labour Court nor taken any steps by filling necessary applications in support of his claim under the provisions of the Act or by invoking the provisions of C.P.C. directing respondent No.1 to produce relevant documents or summon any witness to discharge his initial burden. It further reveals from the record that the petitioner has not filed any application before the Labour Court that the domestic enquiry conducted by respondent No.1 is not valid under law. In such circumstances, the petitioner is not entitled to contend that respondent No.1 removed the petitioner basing upon enquiry report submitted by the enquiry officer, JSR, J W.P.No.1545 of 2017 10 especially he has not utilized the opportunity given by the Division Bench of this Court in W.A.No.1575 of 2012 dated 28.03.2013.
13. It is very much relevant to mention here that the Labour Court while holding that the punishment of removal from service is disproportionate, on the other hand dismissed the I.D. basing upon the previous conduct of the petitioner in the absence of any specific charge, especially without invoking the provisions of Section 11-A of the Act.
14. Taking into consideration the facts and circumstances of the case and length of service rendered by the petitioner and also to meet the ends of justice, this Court deems it fit and proper to modify the impugned Award passed by Labour Court holding that the petitioner is entitled to reinstatement with continuity of service for the purpose of claiming terminal benefits only, and he is not entitled any other benefits including back wages.
15. Accordingly, respondent Corporation is directed to reinstate the petitioner into service within two (2) months from the date of receipt of a copy of this order subject to medical examination with continuity of service for the purpose of claiming terminal benefits only.
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16. With the above modification, the writ petition is disposed of, accordingly. No costs.
Miscellaneous petitions pending, if any, shall stand closed.
______________________ J. SREENIVAS RAO, J Date : 30.10.2023 mar