Andhra Pradesh High Court - Amravati

Ch.Appa Rao vs The Depot Manager, on 2 August, 2024

APHC010105622021
                            IN THE HIGH COURT OF ANDHRA PRADESH
                                          AT AMARAVATI             [3310]
                                   (Special Original Jurisdiction)


                     FRIDAY ,THE SECOND DAY OF AUGUST
                      TWO THOUSAND AND TWENTY FOUR

                                           PRESENT

            THE HONOURABLE DR JUSTICE K MANMADHA RAO

                            WRIT PETITION NO: 6172/2021

Between:

Ch.appa Rao                                                                      ...PETITIONER

                                               AND

The Depot Manager and Others                                              ...RESPONDENT(S)

Counsel for the Petitioner:

   1. A G SATYANARAYANA RAO

Counsel for the Respondent(S):

   1. VINOD KUMAR TARLADA (SC FOR APSRTC)

The Court made the following:


ORDER :

This writ petition is filed under Article 226 of the Constitution of India for

the following relief:

".......to issue an appropriate Writ Order or Direction more particularly one in the nature of Writ of Certiorari calling for the record relating to the impugned award dated 10 12 2019 made in I D No 31/2018 on the file of 2nd Respondent Industrial Tribunal cum Labour Court Visakhapatnam set aside the same as arbitrary perverse and contrary to law and consequently direct reinstatement of the petitioner into service with continuity of service all attendant benefits and full back wages in the interest of justice ..."

2. The facts of the case are that the Petitioner was appointed as Driver

Grade-II in the year 2006, regularized on 01.01.2010. On 03.10.2016 the

Petitioner was allotted duty as TIM Driver along with T.S.S.Rao, E.752285,

Co-driver on Bus No:AP31Z 0213, 12.00Hrs Visakhapatnam-Hyderabad

service. When Bus reached M.G.B.S. Hyderabad at 08.00 Hrs on 04.10.2016,

Co-driver was on steering and Petitioner was sleeping. All the passengers got

down from the bus and when two lady passengers were demanding change,

petitioner awoke from sleep. At that time the Task Force Police in civil dress

boarded the bus, searched the bags and belongings of the petitioner. Co-

driver and the ladies, but found nothing. It is further stated that as instructed

by Task Force Police, the Petitioner and Co-driver attended the Afzalgunj

Police Station, where some persons were in police custody. The Police asked

the said persons to identify the Petitioner and Co-driver and one person in the

custody has said that he knows the petitioner. The Petitioner was then asked

to identify the said person and the petitioner replied that the person travelled

in the bus from Hyderabad to Darakonda two times while the petitioner was

TIM driver for the scheduled bus. Based on the version of the said person, the

Station House Officer, Afzalgunj Police Station filed Criminal Case in Crime

No. 506/2016 Under Sec. 8 (C) read with Sec.20 (b) (ii) (c) of Narcotic Drugs

and Psychotropic Substances Act, 1985 against the petitioner and produced

before the Hon'ble Metropolitan Sessions Judge, Nampally, Hyderabad on

20.10.2016 where petitioner was enlarged on bail. Thereafter, RTC Head

Constable, Visakhapatnam depot sent a report to the 1st Respondent on 04.10.2016 about the arrest of the petitioner by the Police when one of the

accused persons stated that he carried ganja in the past in the bus operated

by the petitioner. Inspector of Police, Afzalgunj P.S. addressed a letter to the

1st Respondent informing the Petitioner's arrest on 05.10.2016. Basing on the

said reports, the petitioner was placed under suspension on 06.10.2016 and a

Charge Sheet was issued alleging that petitioner transported prohibited

luggage of 2 bags of ganja illegally under the spare wheel in Bus No.AP 31Z

0213, Visakhapatnam- Hyderabad Service on 03.10.2016 by accepting bribe

of Rs.4,000/- from the passenger, for having involved in major & serious

offence of transporting ganja in the bus for which arrested in Crime

No.506/2016 U/Sec. 8(c) read 20 (b) (ii) (c) of NDPS Act, 1985 and for having

tarnished the image of the Corporation. It is further stated that the Petitioner

in his reply denied Charges and stated that he did not transport the ganja as

alleged and as per report of RTC Head Constable dated 04.10.2016,

telephonic message Outsourcing supervisor at MGBS, the deposition of Co-

driver T.S.S.Rao, in the preliminary enquiry and the preliminary enquiry report

dated 06.10.2016 do not reveal that Police have seized 2 bags of ganja

concealed under the spare wheel of the Bus. The petitioner further stated that

the Afzalgunj Police have foisted a false case with the collusion of

professional smugglers who were under their custody. As per the Police

Report dated 05.10.2016 all the 7 persons in their custody have travelled in

the Bus operated by the petitioner on 03.10.2016 at 12 noon at

Visakhapatnam and Smt. Islavath Bujji -Al stated that contents of 2 bags was informed to petitioner and the bags were concealed under the spare wheel,

which is not correct. It is evident from the Ticket Report dated 03.10.2016 no

passenger bound for Hyderabad boarded the bus at Visakhapatnam or at

Gajuwaka.

While so, the 1st Respondent without considering the explanation of the

petitioner and the fact that the Charge framed in the Charge Sheet dated

06.10.2016 is the same as in Crime No.506/2016 has proceeded to conduct

domestic enquiry. In the detailed enquiry, Co-driver T.S.S.Rao has stated that

the Task Force Police have found nothing when they checked the Bus and

seized only mobile phone and identity card from the petitioner. Smt. Ujwala

Rani, Superintendent (Traffic) who conducted preliminary enquiry has

deposed that she received intimation of arrest of the petitioner by the Police.

The petitioner has deposed that the Task Force Police have found nothing

when they checked the Bus and denied taking of Rs.4000/- for transporting

ganja. But the Enquiry Officer contrary to evidence on record held that the

charges are proved. The 1st Respondent based on the said perverse Enquiry

Report has removed the petitioner from service vide Proceedings dated

06.02.2017. The Appeal, Revision and Mercy Appeal, filed by the petitioner

were rejected vide proceedings dated 31.03.2017, 12.10.2017 and

09.03.2018 respectively. Aggrieved by the same, the petitioner raised

I.D.No.31/2018 before the 2nd Respondent- Labour Court. The Labour Court

on an erroneous appreciation of evidence on record held that the petitioner is

guilty of the charge. Further the Labour Court held that the punishment imposed is not shockingly disproportionate and the same is justified and

passed the NIL award dated 10.12.2019. Questioning the same, the present

writ petition has been filed.

3. Counter affidavit has been filed by the 1st respondent while denying

all the allegations made in the petition inter alia contended that basing on the

report of the Additional Inspector of Police, Afzalgunj, he was charge sheeted,

suspended and conducted domestic enquiry. It was held that the petitioner

had accepted bribe of Rs.4000/- from the passenger and for having involved

in major & serious offence of transporting ganja in the bus for which arrested

in Crime No.506/2016 U/Sec.8(c) read 20 (b)(ii)(c) of NDPS Act, 1985 and for

having tarnished the image of the Corporation. As seen from the statement of

the petitioner, he was arrested and released on 20.10.2016. As per the

Corporation regulations, any employee who was arrested and sent to remand

is liable for suspension followed by an order. It is further stated that the

petitioner was removed from Corporation vide proceedings dated 6.2.2017,

thereafter, the petitioner preferred an appeal, Review and Mercy Petition and

all of them were rejected vide proceedings dated 31.03.2017, 12.10.2017 and

09.03.2018 respectively. Aggrieved by the same the petitioner approached the

Labour Court under section 10(1)(2) of the Industrial Disputes Act, 1947. The

Labour Court rightly appreciated the evidence placed before it and held that

the removal of the petitioner is justified. Therefore, prayed to dismiss the writ

petition as devoid of merits.

4. Heard Sri A.G. Satyanarayana Rao, learned counsel appearing for

the petitioner and Sri T.Vinod Kumar, learned Standing Counsel appearing for

the respondents.

5. On hearing, learned counsel for the petitioner reiterated the contents

made in the petition. To support his contentions, learned counsel for the

petitioner has relied upon a decision of Hon'ble Supreme Court reported in

Ram Lal versus State of Rajasthan & Others1, wherein the Apex Court held

that :

"However, if the charges in the departmental enquiry and the criminal court are identical or similar, and if the evidence, witnesses and circumstances are one and the same, then the matter acquires a different dimension. If the court in judicial review concludes that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge, the Court in judicial review can grant redress in certain circumstances."

6. Whereas, learned Standing Counsel for the respondents while

reiterating the averments in the counter affidavit, denied all the allegations

made in the petition. He submits that strict rules of evidence are not

applicable in departmental proceedings and even hearsay evidence is

sufficient to initiate disciplinary proceedings against an earring employee. He

submits that this Hon'ble Court in a case reported in Management of State

Bank of India, Rep. by its Regional Manager, Visakhapatnam Vs.

Industrial Tribunal-1, Rep. by its Presiding Officer, Hyderabad2 culled out

certain principles in paragraph 50 of the judgment, wherein reads as under:

Civil Appeal No.7935 of 2023 (arising out of SLP(c) No.33423 of 2018

2006 (1) ALT 39 "In cases where Section 11-A does not apply, the Tribunal/labour Court would neither act as a court of appeal nor would it substitute its judgment for that of the management and would interfere only when there is; (i) want of good faith; (ii) victimization; (iii) unfair labour practice; (iv) when the management has been guilty of basic error or violation of principles of natural justice; and (v) when on the material on record, the finding is completely baseless or perverse. Thus under section 10(1)(2) the reference was answered against the petitioner."

7. Learned Standing Counsel has also relied upon a decision of

Hon'ble Supreme Court reported in Maharashtra State Road Transport

Corporation versus Dilip Uttam Jayabhay3, wherein it was held that :

Having gone through the findings recorded by the enquiry officer in the departmental enquiry and the judgment and order passed by the Labour Court as well as the Industrial Court and even the judgment and order of acquittal passed by the criminal court, it emerges that when the respondent was driving the vehicle it met with an accident with the jeep coming from the opposite side and in the said accident four persons died. From the material on record it emerges that the impact of the accident with the jeep coming from the opposite side was such that the jeep was pushed back 25 feet. From the aforesaid facts it can be said that the respondent workman was driving the vehicle in such a great speed and rashly due to which the accident had occurred in which four persons died. Even while acquitting the respondent accused driver who was facing the trial under Sections 279 and 304(a) IPC the criminal court observed that the prosecution failed to prove that the incident occurred due to rash and negligent driving of the respondent accused herein only and none else. Therefore, at best even if it is assumed that even driver of the jeep was also negligent, it can be said to be a case of contributory negligence. That does not mean that the respondent workman was not at all negligent. Hence, it does not absolve him of the misconduct.

11.3. Much stress has been given by the Industrial Court on the acquittal of the respondent by the criminal court. However, as such the Labour Court had in extenso considered the order of acquittal passed by the criminal court and did not agree with the submissions made on behalf of the respondent workman that as he was acquitted by the criminal court he cannot be held guilty in the disciplinary proceedings.

It is the contention of the learned Standing Counsel that departmental

proceedings as well as criminal case are independent proceedings and cannot

be equated each other. It is further stated that the police checked the bags

and the accused in the Criminal Case identified the petitioner herein saying

that on accepting an amount of Rs.4,000/- as illegal gratification the petitioner

permitted them to transport the prohibited Ganja and the petitioner was

(2022) 2 Supreme Court Cases 696 remanded to judicial custody along with other accused for the said offence

and the petitioner never denied the said fact and did not adduce any evidence

to establish his plea and kept quiet and even failed to cross examine the

witness and the entire case against the petitioner was established on record

and the management imposed the punishment in consideration of the acts of

the petitioner herein as illegal and prohibited in terms of the circular orders of

the respondent corporation.

It is also the contention of the petitioner that as per Ex.M11 deposition,

one P.Ujwala Rani, Superintendent (T) deposed about the receipt of

information by her from retired TI-3, Md. Sypuddin, E-100663 over phone in

respect of the alleged crime against the petitioner herein and also deposed

that basing on his request she had arranged another driver M.Ch.Rao for

attending his duties returning from Bhadrachalam to Visakhapatnam on lifting

the same from one Ch.A. Rao, who is the co-driver to the petitioner service

and the same fact was not challenged by the petitioner herein and the

petitioner failed to cross examine the said witness.

However, it is the contention of the learned counsel for the petitioner

htat the petitioner never committed any offence and the TIM report does not

reflect any person who entered into the bus with Ganja on the alleged date

and the TIM report also does not reflect the boarding of any passenger at

Dharakonda. It is also further contention that the enquiry officer failed to

appreciate the facts in a proper manner and that the management also failed

to establish its case against the petitioner herein and the punishment imposed is disproportionate and it is unsustainable in view of lack of evidence and the

material available on record.

Having regard to the facts and circumstances of the case and on

considering the submissions of both the learned counsels and by following the

decision of Hon'ble Supreme Court in Ram Lal's case, this Court is of the

considered opinion, inclined to allow the writ petition by declaring the Award

passed by the Tribunal in I.D.No.31 of 2018, as illegal and arbitrary.

Accordingly, the Writ Petition is allowed. The impugned Award dated

10.12.2019 passed in I.D.No.31 of 2018 by the 2 nd respondent-Industrial

Tribunal0-cum-Labour Court, Visakhpatnam is hereby set aside. The

respondents concerned are directed to reinstate the eptitioenr with all

consequential benefits including seniority, noitoanl promotions, fitment of

salary and all toher benefits. As far as backwages are concned, this Court is