Telangana High Court

B.Bhomaiah,Krm vs D.M,Apsrtc,Krm Dist on 10 October, 2022

Bench: Surepalli Nanda

     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                    W.P. No. 9874 of 2012
ORDER:

Heard Sri V.Narsinha Goud, learned counsel for the

petitioner and Sri K.Srinivas Rao, learned Standing Counsel

for the respondents' corporation.

2. The petitioner filed this writ petition to issue an

appropriate writ, or direction particularly one in the nature of

Writ of Certiorari, to quash the impugned award dated

17.01.2012 passed in I.D.No.32 of 2007, published on

24.02.2012, on the file of Industrial Tribunal-cum-Labour

Court, Godavarikhani, Karimnagar District, and in not granting

any relief as arbitrary, unjust, illegal and in violation of Article

14, 16 and 21 of the Constitution of India and consequently,

direct the respondents' corporation to reinstate the petitioner

into service with continuity of service, attendant benefits and

back wages.

3. The case of the petitioner, in brief, is as follows:

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a) The petitioner joined the services of the respondents'

corporation as conductor on 15.03.1996 through due process

of selection and is regularised w.e.f. 27.08.1997.

b) While the petitioner was conducting bus service on

30.07.2005 from Metpally to Regunta ex-stage 1 to 6, a check

was exercised by the checking officials just before Stage No.6

and a memo is issued alleging the following allegations:

" 1. For having failed to observe the rule, issue and start.

2. For having collected the bus ticket fare at the boarding place itself and failed to issue ticket to one passenger found alighting without ticket having boarded your bus at Regunta ex-stages 5 to 6 while you were conducting bus No.3031 on 30.07.2005.

3. For having failed to close the SR up to stage No.6 which is marked as XXX.

c) The petitioner explained that when he was in act of issuing

ticket to the passenger in question, the checking officials have

prevented him from issuing ticket and obtained the check

documents as per their wishes under the threat of in sub-

ordination. Basing on the charge memo dated 30.07.2005, the

petitioner was suspended from service on 08.08.2005 and issued

the charge sheet dated 08.08.2005 as follows:

1. For having failed to observe the rule issue and start which constitutes misconduct under Reg.28(xxxi) of APSRTC Employees (Conduct) Reg. 1963.

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2. For having collected the bus ticket fare at boarding place itself and failed to issue tickets to one passenger found alighting without ticket having boarded your bus at Satharam and bound for Regunta ex-stages from 5 to 6 while you were conducting the bus No.3031 of 30.07.2005 and for having torned Rs.3/- deno., ticket bearing No.478/646450 from your ticket tray and kept in your mouth and chewed no sooner the checking officials boarded your bus which constitutes misconduct under Reg. (vi)(a) (xxx) r/w 28(x) of APSRTC Employees (Conduct) Regulations, 1963.

3. For having failed to close the S.R., upto stage No.6 which marked as xxxx which constitutes misconduct as per Reg.28(xxxii) of APSRTC Employees (Conduct) Reg. 1963'.

d) The petitioner submitted explanation to the above charges.

Without considering the explanation of the petitioner, the

respondents ordered enquiry. The said enquiry was not in

accordance with principles of natural justice. Basing on the

enquiry, the respondent had removed the petitioner from service in

an arbitrary manner and the same was confirmed in appeal and

revision in mechanical manner.

e) The petitioner filed I.A.No.32 of 2007 before the Industrial

Tribunal-cum-Labour Court, Godavarikhani and the same was

dismissed on 17.01.2012 holding that the charges framed against

the petitioner were proved and the punishment of removal from WP_9874_2012 4 SN,J

service is not excessive, arbitrary and against the principles of

natural justice, because the petitioner was given every opportunity

to defend his innocence. Therefore, the petitioner filed this writ

petition.

4. The respondent corporation filed counter affidavit as

follows:

a) The petitioner was appointed as daily wage conductor in

the respondent corporation on 15.03.1996 and was

regularized w.e.f. 01.08.1997. The petitioner was imposed

penalties i.e. censured - 6 times, annual increments deferred

- 6 times prior to his removal from service. As per law,

enquiry was conducted

b) The passenger Sri Armoor Narsaiah, R/o Satharam

Village has stated that he boarded the petitioner's bus at

Satharam Village and alighted without ticket at Regunta

Village and he tendered Rs.3/- to the petitioner at Satharam

Village i.e. at the boarding point itself, but the petitioner

failed to issue ticket to him and that the said statement was

confirmed by the petitioner in his spot explanation.

c) The petitioner was placed under suspension w.e.f.

08.08.2005 and later removed from service on 20.01.2006

and his appeal and review petitions were rejected by the WP_9874_2012 5 SN,J

Divisional Manager, Jagityal and Regional Manager,

Karimnagar on 06.04.2006 and 12.06.2006 respectively.

Aggrieved by the said order of removal, the petitioner filed

I.D.No.32 of 2007 before the Labour Court, Godavarikhani

and the same was also dismissed. The order passed by the

Tribunal needs no interference by this Court and hence, the

writ petition is liable to be dismissed.

5. During enquiry, the Tribunal marked Ex.W1 to W.3 on

behalf of the petitioner and Ex.M.1 to M27 were marked on

behalf of the respondent and no witnesses were examined on

both sides.

6. The main contentions put forth by the learned

counsel for the petitioner are :

a) The burden lies on the prosecution to prove the charges

alleged against the Petitioner by adducing the cogent and

independent evidence but not for the Petitioner to disprove

the charges.

b) When the service driver statement Exhibit M4 was

disallowed and when there was no other evidence on record

to prove the allegations levelled against the Petitioner except WP_9874_2012 6 SN,J

the interested testimony of T.T.I., the Court below

erroneously passed the impugned order.

c) The Court below erroneously failed to exercise the

power given to it u/s.11A of the I.D. Act. The ticket checking

procedure as mandated under the Rules admittedly as borne

on records had not been followed in the present case and

therefore the order impugned has to be set aside.

d) The Petitioner in his explanation to the above charges

levelled against him explained that the Petitioner issued

tickets to all the passengers at stage No.5 Satharam and this

one passenger had boarded the bus enroute i.e., after passing

Satharam stage and delayed the payment of fare amount and

by the time the fare amount was collected and the ticket is

being issued, the checking officials stopped the bus prior to

stage No.6 Regunta and pulled one ticket which was being

issued to the one passenger. Thus the passenger was not

alighting at stage No.6 Regunta is yet to come. Since he had

to complete the ticket issue to one passenger and stage No.6

is not reached, the Petitioner has not closed the tray numbers

in the S.R. It cannot be termed as misconduct. The distance

from boarding place and check place is very meager and WP_9874_2012 7 SN,J

negligent. The fare amount of the bus ticket allegedly

involved is Rs.3/- only. The Petitioner did not close the tray

numbers in the S.R. As such, no malafide intention can be

attributed to him and moreover the ticket was taken by the

TTIs from the hands of the Petitioner. Thus punishment of

removal from service is highly excessive, harsh and arbitrary

and the explanation of the petitioner was not considered at

all.

e) The learned counsel for the Petitioner placed

reliance on the judgments of the Apex Court given

below and urged that the Writ Petition should be

allowed as prayed for :

(i) (2018) 12 SCC 41 (paras 3, 4, 5 and 6) -

Andhra Pradesh State Road Transport Corporation, Rep. by Depot Manager v. G. Murali on the point below :

That no single passenger was examined, produced for cross examination and thereby Petitioner is denied of being provided with reasonable opportunity by the Respondent Authority.

(ii) (2013) 4 SCC 301 (paras 22 and also 52.2, 52.3, 52.4) - Nirmala J. Jhala v. State of Gujarat & Another on the points below :

WP_9874_2012 8 SN,J

(a) The Court or the Tribunal in its judicial review has to consider whether the conclusion is based on the evidence of record and supports the finding or whether the conclusion is based on no evidence.

(b) The onus lies on the Department to prove the charge and not the Petitioner.

(iii) (2015) 2 SCC 610 (para 14) - Union of India & Others versus P. Gunasekaran on the point that the High Court may undoubtedly interfere where the Departmental Authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence on the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds.

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(iv) AIR 1982 SC 1552 (para 7) - Ramakanth Misra versus State of U.P. & Others in Civil Appeal No.1531/1980, dt. 21-10-1982 on the point that the Labour Court has the jurisdiction and power to substitute its measure of punishment in place of the managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. As per Sec.11A of the Industrial Disputes Act, 1947.

7. The main contentions put-forth by the learned

Counsel for the Respondent are as follows:

a) The Petitioner is bereft of clean record and was imposed

penalties prior to his removal from service i.e., Censured 6

times, Annual Increment Deferred 6 times.

b) The Petitioner participated in the enquiry and the

enquiry officer has examined Sri K.M. Reddy, E-61677, T.T.I.

in the presence of the Petitioner.

c) The Petitioner failed to issue ticket even after collecting

the requisite fare of Rs.3/- at the boarding point itself and

therefore the Petitioner committed misconduct, which is

serious in nature and therefore the punishment imposed by WP_9874_2012 10 SN,J

the Respondent on the Petitioner of removal from service is in

conformity with the gravity of the charges.

d) The learned Counsel for the Respondent also placed

reliance on para No.16 of the order impugned and contended

that the Petitioner's counsel filed a Memo on 22-09-2010

U/s.11-A of the I.D. Act, stating that the Petitioner did not

dispute the validity of domestic enquiry and prayed to decide

the matter on material available on record and the same had

been recorded and therefore the Petitioner at this stage

cannot contend that the enquiry was improper and further

that the Petitioner himself admitted his guilt in the

conductor's spot explanation submitted by him.

e) The learned Counsel for the respondent placed reliance

on the judgments of the Apex Court given below and

contended that the Writ Petition should be dismissed :

(i) The judgment of the Apex Court reported in (2015) 2 SCC 610 (paras 12 & 13) - Union of India & Others v. P. Gunasekaran on the point that the High Court cannot re-appreciate the evidence.

(ii) The judgment of the Apex Court reported in (2005) 3 SCC 254 - (paras 8 & 9) - Divisional Controller, KSRTC (NWKRTC) v. A.T.Mane on WP_9874_2012 11 SN,J

the point that 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.

(iii) The judgment of the Apex Court reported in (2006) 8 SCC 108 - (paras 7, 8 & 9) in the U.P. State Road Transport Corporation, Dehradun v. Suresh Pal on the point that the Petitioner was a conductor and held the position of trust and if an incumbent like the Petitioner starts misappropriating the money by not issuing a ticket and pocketing the money thereby causing loss to the Corporation then that is a serious misconduct and on the point that normally the Courts do not substitute the punishment unless they are shockingly disproportionate and if the punishment is interfered or substituted lightly in exercise of their extra ordinary jurisdiction then it will amount to abuse of the process of the Court.

(iv) The judgment of the Apex Court reported in (2015) 17 SCC 603 - (para 17) in Uttar Pradesh State Road Transport Corporation & Another v. Gopal Shukla & Another on the point that the conductor holds the post of the trust under Corporation and therefore he should not allow WP_9874_2012 12 SN,J

anything to creep in which would make him a person of questionable integrity.

8. PERUSED THE RECORD.

DISCUSSION AND CONCLUSION

9. As per the contents of the charge sheet dated

08.08.2005 the charges framed against the Petitioner

are as follows :

CHARGES :

1) "For having failed to observe the rule issue and start which constitutes misconduct under Reg.28 (xxxi) of APSRTC Employees (Conduct) Reg. 1963".

2) "For having collected the bus ticket fare at boarding place itself and failed to issue tickets to one passenger found alighting without ticket having boarded your bus at Satharam and bound for Regunta ex-stages from 5 to 6 while you were conducting the bus No.3031 on 30-07-2005 and for having torn Rs.3/- deno., ticket bearing No.478/646450 from your ticket tray and kept in your mouth and chewed no sooner the checking officials boarded your bus which constitutes misconduct under Reg.28 (vi)(a) (xxx) r/w 28 (x) of APSRTC Employees (Conduct) Reg. 1963".

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      3)    "For having failed to close the S.R. upto stage

No.6 which marked as XXXX which constitutes misconduct as per Reg. 28 (xxxii) of APSRTC Employees (Conduct) Reg. 1963".

10. The relevant findings arrived at paras 25, 28 and

the conclusion arrived at by the Court below at para 34

are as follows :

"25 - Of course the enquiry officer for concluding his findings also made reliance on the statement of service driver, marked under Ex.M-4. But his statement was not attested by the Petitioner, though it was said to have been taken at the time of exercise of check, nor the service driver was not examined before the enquiry officer. So the reliance of the enquiry officer on the statement of the service driver is not proper. But his reliance on other documents and the statement of the one of the TTIs is proper and correct, as such his findings are with reasons and supported by evidence.

28 - The respondent only marked Ex.M-27 xerox copy of S.R. of the petitioner, but without filing the original S.R. no evidentiary value can be attached to Ex.M-27. Therefore, I am under the considered opinion that the respondent failed to prove the alleged previous punishments imposed against the petitioner, prior to the present case.

34 - In the light of the above reported case, mere fact that this was the first occasion when the petitioner was caught for cash and ticket irregularity, it cannot be a ground to say that the punishment of removal from service is WP_9874_2012 14 SN,J

arbitrary, excessive harsh and against the principles of natural justice. Then, if the charges are found to be proved against the petitioner this Tribunal can confirm the termination of the petitioner from service. "

11. This Court opines that as borne on record in so far

as charge No.2 is concerned, it is evident that there is

no evidence on record to support charge No.2 levelled

against the Petitioner. The Court below having held at

para 25 of the Order dt. 17.01.2012 in I.D.No.32 of

2007 that the service driver was not examined before

the enquiry officer so the reliance of the enquiry officer

on the statement of the service driver is not proper,

ought not have held charge No.2 as proved against the

Petitioner. A bare perusal of the rules in force relating

to the ticket checking procedure followed by the

Respondent Corporation as per its circular guidelines

clearly indicates that the checking officials should try to

collect independent evidence of fellow passengers or

drivers of the buses wherever possible and also record

the full address of the passengers connected with the

irregularity and witnesses if any while framing charges.

But in the present case admittedly record clearly WP_9874_2012 15 SN,J

indicates that said ticket checking procedure or the

method of checking contemplated under the rules had

not been followed. The Court below having held at para

No.28 of its Order that the Respondent failed to prove

the alleged pervious punishments imposed against the

Petitioner prior to the present case ought not have held

charge No.2 against the Petitioner as proved when

there was no evidence at all on record substantiating

the said charge and more so when the Court below

observed that the statement of service driver could not

be relied upon. This Cout opines that the second charge

which is based mainly on the driver, Metpally, Sri

Ch.A.Rao's statement and the same has been

admittedly rejected by the Labour Court, then the

finding of the Labour Court on charge No.2 itself is

perverse. The fare amount of the bus ticket allegedly

involved is Rs.3/- only and since the Petitioner did not

close the tray numbers in the S.R. as such no malafide

intention admittedly can be attributed to the Petitioner,

therefore charge No.3 eventually also cannot be held as WP_9874_2012 16 SN,J

proved, which has however, been mechanically held as

proved by the Court below.

12. The learned counsel for the Respondent though

places reliance on paras 4 & 5 of the Counter Affidavit

and contends that the Petitioner is bereft of clean

record, the same cannot be taken into credence due to

the finding of the Court below at para No.28 of the

present impugned order which clearly observed that

the Respondent herein failed to prove the alleged

previous punishments imposed against the Petitioner

prior to the present case.

13. This Court opines that the finding of mis-conduct

arrived at by the Court below is vitiated on account of

want of substantial material evidence and further that

the extreme penalty of dismissal or discharge in the

present case was not justified in the facts and

circumstances of the present case as discussed above,

meaning thereby, that the penalty imposed for the

alleged misconduct of the petitioner does not infact

commensurate with the gravity of the offence charged.

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14. A Division Bench of this Court in a judgment

reported in (2002) 1 ALT 64 (DB) in

W.P.No.17361/1994, dt. 15-11-2001 at para 10

observed as follows :

"This takes us to the second contention of the learned counsel for the petitioner. Undoubtedly, the Labour Court has the discretionary power under Section 11-A of the Act to alter or modify the penalty imposed by the Disciplinary Authority, if it is of the opinion that the penalty imposed by the Disciplinary Authority, in the facts and circumstances of the case, is disproportionate to the gravity of the mis- conduct. It is also a well-settled position that this Court also while reviewing the Industrial Award under Article 226 of the Constitution in appropriate cases can exercise the same power, which is available to the Labour Court under Section 11-A of the Act".

15. The Apex Court in its recent judgment reported in

(2022) SCC Online SC 284 in Union of India & Others v.

Managobinda Samantary1 at para 9 observed as

follows:

"Quantum of punishment is within the discretionary domain and the sole power of the decision making authority once the charge of misconduct stands proved. Such discretionary power is exposed to judicial interference if

(2022) SCC Online SC 284 WP_9874_2012 18 SN,J

exercised in a manner which is grossly disproportionate to the fault, as the constitutional courts while exercising the power of judicial review do not assume the role of the appellate authority. Writ jurisdiction is circumscribed by limits of correcting errors of law, procedural error leading to manifest injustice or violation of principles of natural justice. The decision are also disturbed when it is found to be ailing with perversity. On the question of quantum of punishment, the court exercising the power of judicial review can examine whether the authority has been a reasonable employer and has taken into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and excluded irrelevant matters. In the context of quantum of punishment these aspects are examined to consider whether there is any error in decision making process. On merits of the quantum of punishment imposed, the courts would not interfere unless the exercise of discretion in awarding punishment is perverse in the sense the punishment imposed is grossly disproportionate".

16. This Court opines that the judgements relied upon

by the Counsel for the Respondent have no relevance to

the facts and circumstances of the present case. Taking

into consideration the law laid down by the Apex Court

in the judgments relied upon by the Counsel for the

Petitioner in (i) (2018) 12 SCC 41 (paras 3, 4, 5 and 6)

- Andhra Pradesh State Road Transport Corporation,

Rep. by Depot Manager versus G. Murali, (ii) (2013) 4 WP_9874_2012 19 SN,J

SCC 301 (paras 22 and also 52.2, 52.3, 52.4) - Nirmala

J. Jhala versus State of Gujarat & Another, (iii) (2015)

2 SCC 610 (para 14) - Union of India & Others v. P.

Gunasekaran and (iv) AIR 1982 SC 1552 (para 7) -

Ramakanth Misra versus State of U.P. & Others in Civil

Appeal No.1531/1980, dt. 21-10-1982, and taking into

consideration the judgement of the Apex Court

reported in (2022) SCC Online SC 284 in Union of India

& Others versus Managobinda Samantary (para 9) and

also Division Bench judgment reported in (2002) 1 ALT

64 in P.Rajanna versus Labour Court, Godavarikani and

Another, dt. 15-11-2011 passed in W.P.No.17361/1994

(para 10), the Writ Petition is liable to be allowed

17. Accordingly, the writ petition is allowed quashing

the impugned award dated 17.01.2012 passed in

I.D.No.32/2007, published on 24,02,2012 on the file of

Industrial Tribunal-cum-Labour Court, Godavarikani,

Karimnagar District since the same is found to be

perverse.

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18.   Taking   into   consideration     that   the     Petitioner

retired from service on 31.07.2012 and expired on

26.08.2020, there cannot be any direction for

reinstatement of the Petitioner into service. It is made

clear that the impugned award is set aside only for

computation of pension and other pensionary benefits

and for no other purpose.

19. This Court had ordered I.A.No.1 of 2021 in

W.P.No.9874 of 2012 and the 2nd Petitioner is brought

on record in W.P.No.9874/2012 in the capacity of legal

heir of the 1st Petitioner as per Court order dated

08.06.2022.

Miscellaneous petitions, if any, pending shall stand