Telangana High Court
N.K.Naik,Conductor ... vs Apsrtc., Divisional Manager, ... on 8 November, 2022
Bench: J Sreenivas Rao
1
JSR, J
WP No.5766 of 2006
HIGH COURT FOR THE STATE OF TELANGANA
W.P.No.5766 OF 2006
Between
N.K. Naik, S/o. Bichya, Aged 38 years
Occ : Conductor, E.No. 175059,
R/o.Achammakunta Thanda
Post : Madikonda, Deverakonda Mandal
Nalgonda District.
...Petitioner
And
APSRTC, rep. by its Divisional Manager,
Nalgonda Division, Nalgonda
And another.
...Respondents
DATE OF THE ORDER PRONOUNCED: 08.11.2022
SUBMITTED FOR APPROVAL:
HONOURABLE SRI JUSTICE J.SREENIVAS RAO
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the judgment?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Their Lordships wish to Yes/No
see the fair copy of the judgment?
___________________________
JUSTICE J.SREENIVAS RAO
2
JSR, J
WP No.5766 of 2006
HONOURABLE SRI JUSTICE J.SREENIVAS RAO
+W.P.No.5766 OF 2006
% DATED 08TH NOVEMBER, 2022
Between
# N.K. Naik, S/o. Bichya, Aged 38 years
Occ : Conductor, E.No. 175059,
R/o.Achammakunta Thanda
Post : Madikonda, Deverakonda Mandal
Nalgonda District.
...Petitioner
And
$ APSRTC, rep. by its Divisional Manager,
Nalgonda Division, Nalgonda
And another.
...Respondents
! Counsel for the petitioner : Sri V. Narasimha Goud
^ Counsel for respondents : Sri Toom Srinivas
< GIST :
> HEAD NOTE :
? Cases referred: :
1
Manu/Hy/0014/2017
2
(2005) 3 supreme Court Cases 254
3
JSR, J
WP No.5766 of 2006
HONOURABLE SRI JUSTICE J.SREENIVAS RAO
W.P.No.5766 OF 2006
ORDER:
Heard Sri V. Narasimha Goud, learned counsel for the petitioner
and Sri Toom Srinivas, learned Standing Counsel for the respondents.
2. The petitioner filed this writ petition under Article 226 of
Constitution of India seeking the following relief:
".... to issue an appropriate writ or direction particularly one in
the nature of Writ of Certiorari, quash the impugned award
dated 13.01.2004 made in I.D. No.144 of 2001, published on
04.04.2004, insofar as denying the past service, entire back
wages and attendant benefits as arbitrary, unjust, in violation
of Articles, 14, 16 and 21 of the Constitution of India and
consequently direct the respondents' corporation to pay back
wages along with all consequential benefits..."
3. The learned counsel for the petitioner contended that the
petitioner joined in the respondent-Corporation as "Conductor" in the
year 1996 and his services were regularised on 28.10.1998. While he
was conducting the bus service on 20.11.2001 in between
Kambhalapally and Devarakonda a cheque was exercised by the
checking officials at the Stage No.9/8 and they issued a memo finding
out certain cash and ticket irregularities. Thereafter the 2nd respondent
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WP No.5766 of 2006
issued a charge sheet suspending the petitioner pending enquiry on
20.09.2000 with following charges:
1. "For having issued used ticket bearing No.932/260674 of Rs.10.00
denominations to an individual passenger who boarded the bus at
Kambhalapally Stage No.13 and bound for Teldevarapally Stage No.7
from whom you have collected at the rate of Rs.10.00 towards requisite
fare which constitutes misconduct in terms of Reg.20 (xxiii) and (xxiii) of
APSRTC Employees' ticket 932/260674 of Rs.10.00 denominations is
shown and accounted in S.R. No. A6/3103482 dated 20/21-11-2000 as
having issued at Stage No.7 in the 11.30 Devarkonda - Kambhalapally
trip".
2. "For having closed the Rs.3.00 denomination as 144/808685 instead
of 144/808695 at Stage No.9 after issuing 6 tickets at Stage No.10 while
coming from Kambalapally to Devarkonda which constitutes misconduct
in terms of Reg. 28 (via) of APSRTC employees' (Conduct) Reg. 1963".
3. "For having torn ticket No.932/260675 of Rs.10.00 denomination from
your tray at the time of checking when the checking officials gave you the
tray while framing the case and asked them to close the S.R. including
this ticket thus cheated the checking officials which constitutes
misconduct under Reg. 28 (x) and (xxxii) of APSRTC Employees (Conduct)
Reg. 1963".
3.1. The learned counsel for the petitioner submits that the petitioner
submitted explanation to the Charge Sheet and the respondent-
Corporation appointed enquiry officer to conduct de nova enquiry.
The enquiry officer without properly considering the evidence
submitted enquiry report. The respondent-Corporation without
properly considering the explanation to the show cause notice, the 2nd
respondent awarded a punishment of removal from the service by its
order dated 09.04.2001. Questioning the said order the petitioner
raised an Industrial Dispute vide I.D. No.144 of 2001 on the file of
Labour Court-III, A.P, Hyderabad under Section 2-A(2) of the Industrial
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WP No.5766 of 2006
Dispute Act, 1947. He further contended that the Labour Court
allowed the I.D. No.144 of 2001 in part setting aside the removal order
dated 09.04.2001 and directed the respondent-Corporation to appoint
the petitioner as "Fresher" without back wages and attendant benefits
without properly considering the contentions of the petitioner and
material evidence. Though the petitioner is entitled all benefits
including back wages.
3.2. The learned counsel for the petitioner further submits that the
Labour Court while setting aside the removal order passed by the
respondent-Corporation dated 09.04.2001 ought to have granted other
benefits including back wages. He also submits that the checking
officials have deposed in respect of charge No.1 only and there is no
other evidence in respect of charge Nos.2 and 3. In such
circumstances, the Labour Court ought not have uphold the charge
No's.2 and 3 in the absence of any evidence and the same is contrary
to law. In support of his contentions, the learned counsel relied upon
the Judgment reported in E.S. Anjaneyulu Vs. Regional Manager,
(N.R.), APSRTC and Others1.
4. The learned counsel for the respondent vehemently contended
that the respondent-Corporation after duly following the principles of
Manu/Hy/0014/2017
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WP No.5766 of 2006
natural justice and also the enquiry officer given all opportunities to
the petitioner during the course of enquiry. The enquiry officer
submitted detailed report to all the charges. He further contended
that the charges levelled against the petitioner are serious in nature
viz., serious cash and tickets irregularities the respondent-Corporation
after considering the explanation submitted by the petitioner
respondent-Corporation awarded punishment of removal from the
service by its order dated 09.04.2001. The Labour Court after
considering the contentions raised by both the parties, documentary
evidence on record i.e. Exs.M-1 to M-21 and also after hearing the
parties, passed the impugned Award by exercising its discretion under
Section 11-A of the Industrial Disputes Act, 1947 and there is no
illegality and irregularity in the impugned Award to exercise the
jurisdiction by this Court under Article 226 of the Constitution of
India.
4.1. In support of his contention the learned Standing Counsel relied
upon the Judgment reported in Divisional Controller, KSRTC
(NWKRTC) Vs. A.T. Mane2.
5. This Court having considered the rival submissions made by the
learned counsel for the parties and also perused the records. The
(2005) 3 supreme Court Cases 254
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WP No.5766 of 2006
respondent-Corporationhad issued a charge sheet on 29.11.2000 for
the charges mentioned supra and the petitioner submitted his
explanation to the said charges. Thereafter the respondent-
Corporation had initiated de novo enquiry by appointing an enquiry
officer. The enquiry officer after following the due procedure
conducted a detailed enquiry and submitted his report stating that all
the charges levelled against the petitioner were proved. Thereafter the
respondent-Corporation issued a show cause notice to the petitioner
and after considering the explanation imposed the punishment of
removal from service on 09.04.2001. Thereafter the petitioner filed an
appeal and the appellate authority rejected the appeal on 19.11.2001.
The petitioner approached the Labour Court and filed the above
I.D.144/2001 by invoking the provisions of Section 2-A (2) of the
Industrial Dispute Act 1947. The Labour Court after considering the
contentions of both the parties, documentary evidence Exs.M-1 to M-21
and also after hearing both the parties allowed the I.D. in part by
invoking the powers conferred under Section 11-A of the Industrial
Dispute Act by setting aside removal order and directed the
respondent-Corporation to reinstate the petitioner into service as a
"Fresher" without any other benefits including back wages. Before the
Labour Court the petitioner filed a memo under Section 11-A of the
Industrial Disputes Act, 1947 not disputing the procedural aspects of
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WP No.5766 of 2006
conducting domestic enquiry and the Labour Court has given specific
finding that the domestic enquiry conducted by the respondent-
Corporation is valid.
6. The Labour Court set aside the removal order while exercising
its powers conferred under Section 11-A of the Industrial Dispute Act,
1947 on the ground that the petitioner has put up four years of service
as on the date of his removal and he is the only earning member of his
family and is unemployed since the date of removal from the service
and the punishment of removal from service imposed upon the
petitioner is disproportionate and does not commensurate with the
gravity of misconduct and in those circumstances, the Labour Court
directed the respondent-Corporationto appoint the petitioner as
"Fresher".
7. In Divisional Controller, KSRTC (NWKRTC) Vs. A.T. Mane
supra, the Hon'ble Supreme Court held as follows:
"9. From the above, it is clear once a domestic tribunal based on
evidence comes to a particular conclusion normally it is not open to the
appellate tribunals and courts to substitute their subjective opinion in
the place of the one arrived at by the domestic tribunal. In the present
case, there is evidence of the inspector who checked the bus which
establishes the misconduct of the respondent. The domestic tribunal
accepted that evidence and found the respondent guilty. But the courts
below misdirected themselves in insisting on the evidence of the
ticketless passengers to reject the said finding which, in our opinion, as
held by this Court in the case of Rattan Singh (supra) is not a condition
precedent. We may herein note that the judgment of this Court in
Rattan Singh's (supra) has since been followed by this Court
in Devendra Swamy vs. Karnataka State Road Transport Corporation
(2002) 9 SCC 644}".
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WP No.5766 of 2006
10. Since the only ground on which the finding of the domestic
tribunal has been set aside being the ground that concerned passengers
are not examined or their statement were not recorded, in spite of there
being other material to establish the misconduct of the respondent, we
are of the opinion, the courts below have erred in allowing the claim of
the respondent. In our opinion, the ratio laid down in the above case of
Rattan Singh (supra) applies squarely to the facts of this case.
11. In the instant case also, there is the evidence of the inspector
who conducted the checking which establishes the misconduct of the
respondent based on which a finding was given that the respondent was
guilty of the misconduct alleged. Based on the said finding, the
disciplinary authority has punished the respondent by an order of
dismissal. But the Labour Court, and the learned single Judge rejected
the said finding and set aside the punishment imposed solely on the
ground that the evidence of the passengers concerned was not adduced
and their statements were not recorded by the inspector which as
stated in the Rattan Singh's case is not a condition precedent.
Therefore, we are of the opinion that the courts below have erred in
interfering with the finding of fact on an erroneous basis.
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 corporation's fund, there is
nothing wrong in the corporation losing confidence or faith in such a
person and awarding a punishment of dismissal".
8. The judgment relied upon by the petitioner in E.S. Anjayeyulu
Vs. Regional Manager (N.R) APSRTC supra is not applicable to the facts
and circumstances of this case.
9. The Labour Court by duly considering the contentions of both
the parties, evidence on record gave specific findings and allowed the
I.D. in part directing the respondent-Corporation to reinstate the
petitioner into service as "Fresher" without service benefits. During
the course of hearing, both the learned counsels appearing for the
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WP No.5766 of 2006
parties submits that the respondent-Corporation implemented the
award passed by the labour Court and the petitioner was provided
employment and he is continuing in service.
10. In view of the foregoing reasons, this Court does not find any
illegality, irregularity and error in the impugned award passed by
Labour Court to exercise the jurisdiction of this Court invoking under
Article 226 of the Constitution of India and the scope of judicial
review is very limited and there are no merits in the Writ Petition and
the same is accordingly dismissed. No costs.
11. Miscellaneous petitions, if any, pending in this writ petition, shall
stand closed.
_____________________________
JUSTICE J.SREENIVAS RAO
Dated: 08.11.2022
Skj
Note :
L.R. copy to be marked.
(B/o)
Skj
JSR, J
WP No.5766 of 2006
HONOURABLE SRI JUSTICE J.SREENIVAS RAO
W.P.No.5766 OF 2006
Dated: 08.11.2022
Skj.
