Telangana High Court

The Apsrtc, Rep. By Its M.D. ... vs The Labour Court Iii, Hyd. ... on 7 March, 2022

Bench: Satish Chandra Sharma, Abhinand Kumar Shavili

THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                   AND
      THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI



               WRIT APPEAL No.549 of 2010

JUDGMENT:     (Per the Hon'ble the Chief Justice Satish Chandra Sharma)


      The present writ appeal is arising out of an order

dated 04.06.2010 passed by the learned Single Judge in

W.P.No.2296 of 2005.

      The facts of the case reveal that the respondent No.2

(hereinafter referred to as, the employee) was subjected to

disciplinary proceedings on account of cash and ticket

irregularities and an order of removal from service was

passed on 12.06.2002. The employee preferred a petition

i.e., I.D.No.59 of 2002, under Section 2A(2) of the

Industrial Disputes Act, 1947, and the Labour Court has

interfered with the quantum of punishment by an award

dated 19.07.2004. The Labour Court has set aside the

termination order dated 12.06.2002 and directed

reinstatement of the employee with continuity of service

and back wages and further directed that after

reinstatement in terms of the award, one increment shall

be stopped with cumulative effect. The Labour Court has

also held that the employee is not entitled for attendant

benefits and the period of suspension shall not be counted

for any purpose. A writ petition was preferred in the

matter and the learned Single Judge has declined to

interfere with the order passed by the Labour Court.

The employee was reinstated and he has attained the

age of superannuation. While issuing notice in the matter,

this Court has granted interim stay on condition of the

appellants paying half of the back wages as awarded by the

Labour Court.

Paragraph 6 of the order passed by the learned Single

Judge, in which the relevant portion of the award passed

by the Labour Court has been referred, is reproduced as

under:-

"6. The Labour Court, in this regard, appreciated the entire evidence on record and gave a finding, which reads as under:

"POINT (1): On 9.3.2002, a check was exercised on bus No.4364 when the petitioner was on duty as conductor on route Shadnagar to Siddapur and cash and ticket irregularities were found. Petitioner violated the rule issue and start and failed to issue tickets to two passengers after collecting the fare. Petitioner closed the S.R. in respect of all tray numbers without issuing the tickets.

It is held in decision report in 1999 (5) ALT 450 (The Divisional Manager, APSRTC, Adilabad vs. E.Ranga Reddy and another) that, Industrial Tribunal-cum-Labour Court is competent to re-

appreciate the evidence recorded in domestic enquiry to come to right conclusion.

As can be seen from Ex.MI - S.R., there were 49 (47+2) passengers at the time of check. Ex.M2 is the passengers statement. Passenger stated that they paid the fare amount of Rs.8/- for both the passengers to the petitioner at the place of boarding and the petitioner has not issued tickets to him. Petitioner has made endorsement in Ex.M1 - S.R. to the effect that the two passengers boarded the bus without his knowledge and were on the top of the bus and that they have not paid the fare amount to him. Petitioner further stated that, passengers out of fear for checking staff, stated that they have paid the fare amount to him. In the same lines, petitioner gave spot explanation as in Ex.M2-A. Petitioner has taken the same ground in Ex.M7, explanation to charge memo and also in Ex.M10 explanation to charge sheet. Petitioner has taken the stand consistently right from the time of check. One witness passenger was examined by name Md. Isaq as in Ex.M13. Passenger witness deposed before the enquiry officer that, himself and his friend stopped the bus and climbed to top of the bus and that conductor was not aware of their boarding on top of the bus. He stated that they have not paid the fare amount to the petitioner and so tickets were not issued. He further deposed that being afraid of the checking officials, his friend has given statement that they paid the fare amount to the petitioner. In the light of evidence of witness passenger, statement in Ex.M2 cannot be believed to be true. Passengers might have given Ex.M2 out of fear of checking staff. As stated by witness passenger, it is more probable to believe that they were on the top of the bus at the time of check and so they have not paid the fare amount to the petitioner and that petitioner has not issued tickets to them. Evidence of TTI that the two passengers were sitting inside the bus, cannot be believed to be true in the light of evidence of witness passenger. Petitioner has given evidence in support of his theory right from the time of check till the end of enquiry. Witness passenger was identified by checking staff and there was no dispute regarding identity of witness passenger. So by re-appreciation of evidence, more credence shall be given to the evidence of witness passenger, than his earlier passenger statement as in Ex.M2. Petitioner made a mention to the facts in Ex. M1-S.R. as to what happened at that time and that he has not collected the fare from the two passengers. In the light of the earliest stand taken by the petitioner, evidence on behalf of the petitioner can be believed, than the statement obtained at the time of check. In Ex.M2-A,

spot explanation also, petitioner noted his objection that passengers boarded the bus on the top of the bus. Therefore, by re-appreciation of evidence, this court has no hesitation to hold that petitioner has not collected the fare amount from the two passengers and so he has not given tickets to them. The bus was running with 49 passengers at the time of check. So it is probable to believe that the two passengers boarded on the top of the bus at the time of checking. So petitioner has not collected the fare amount and so no misconduct is established. No case of misappropriation is found out from the facts of the matter. Charge No.2 shall be taken as proved for failure to collect the fare amount in the circumstances existed at that time and petitioner had no malafide intention in not collecting the fare amount. So charge No.2 shall be taken as proved for the mistake not amounting to misconduct. Charge No.1 is proved as the petitioner failed to issue tickets and proceeded. The explanation of the petitioner for his failure to collect the fare and issue tickets is established in the circumstances of the case. So charge No.1 is proved for the mistake without any misconduct. Petitioner closed the tray numbers of all denominations. Petitioner was under the belief that he issued tickets to all passengers. The questioned passengers boarded the bus on the top of the bus and so he could not collect the fare and issue tickets. So there are bonafides on the part of the petitioner for closing the S.R. at that stage. So charge No.3 can be taken as proved for the mistake only not amounting to misconduct. Point No.1 is answered accordingly.

POINT (2): On re-appreciation of evidence, it is proved that charge No.2 is proved that the petitioner has not collected the fare amount and has not issued the tickets. No misconduct is proved against the petitioner. Charges 1 to 3 are proved for the mistake committed by the petitioner without element of misconduct. Petitioner in this case was removed from service by order dt. 12.6.2002.

It is held in decision reported in 1999 (5) ALT 450 that, Industrial Tribunal-cum-Labour Court is competent to impose lesser punishment for the reasons recorded in writing.

In this matter, any case of misappropriation is not established. It is proved that the petitioner has not collected the fare amount and not issued the tickets. Petitioner had no intention to misappropriate the amount and to cause loss to the corporation. Charges 1 & 3 are proved accordingly in line with charge No.2. So, it is a case of proved mistake without element by misconduct. Petitioner is in service as conductor since 1982. For the mistake committed by the petitioner, punishment of removal is shockingly disproportionate and

unwarranted. It would suffice to impose lesser punishment by setting aside the order of removal. It is unreasonable to remove the petitioner from service when misconduct is not proved. Therefore, this Tribunal has no hesitation to hold that termination of the petitioner dt.12.6.2002 shall be set aside and respondent shall reinstate the petitioner into service. Petitioner is entitled for continuity of service and back wages. Petitioner is not entitled for attendant benefits. After reinstatement in terms of the award, one increment shall be stopped with cumulative effect. Point No.2 is answered accordingly."

The aforesaid makes it very clear that the Labour

Court while appreciating the evidence has held the charges

proved. However, it has been observed that it does not

amount to misconduct. Meaning thereby, it was not a case

of no evidence and therefore, the Labour Court has

awarded punishment of stoppage of one increment with

cumulative effect. Grant of back wages is not automatic on

account of reinstatement into service. There can be no

straight jacket formula for awarding 100% back wages as

has been done in the present case. The employee has

already been paid 50% of the back wages pursuant to the

interim order granted by this Court. He has not worked