M. Mukundam, Medak District vs The Divisional Manager, Hyd And ...
2023 Latest Caselaw 3872 Tel

            HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

                WRIT PETITION No. 3436 OF 2010

     ORDER:

Award dated 28.08.2006 in I.D.No. 42 of 2005 on

the file of Labour Court-I, Hyderabad is impugned in this Writ

Petition.

2. Petitioner raised the above dispute to set aside the

order of removal on the ground that it is unjust and illegal and

seeking his reinstatement with continuity of service with full back

wages and all other attendant benefits.

The case of petitioner is that he was engaged as a

casual conductor on 04.02.1999. However, alleging cash and

ticket irregularities and tampering the recorded evidence,

departmental proceedings ensued which resulted in termination of

his services with effect from 16.03.2004. Appeal preferred

thereagainst was rejected on 17.05.2004. It is the grievance of

petitioner that he was implicated in this case as he filed E.P.No. 6

of 2001 on the file of Labour Court-II seeking attachment of

property for not affecting regularisation of his service. According

to petitioner, the lady passenger who was found travelling without

ticket was penalised by imposing fine of Rs.20/- and fare of Rs.4/-

was also collected, hence, he is not responsible for any misconduct

whatsoever. He denied that he altered MTD 141 from 18+1 to

48+1.

It is stated that the Labour Court held domestic

enquiry as valid on the ground that petitioner on 29.08.2005, filed

a memo under Section 11-A of the Industrial Disputes Act, 1947,

though at that time, he categorically stated that the findings

arrived at by the Enquiry Officer were perverse and prayed the

Court to grant the relief as prayed for by re-appreciating the

material available before them.

3. Learned counsel for petitioner Sri V. Narsimha

Goud submits that the Labour Court having come to the

conclusion that there was no tampering of record, ought not to

have held the charges as proved. According to the learned counsel,

the Labour Court opined that there were no mala fides and

deliberate intention on his part in respect of charge No.1, hence,

denial of back wages as well as notional increments and imposing

deferment of two increments without cumulative effect is wrong.

Petitioner was implicated in this case as a measure of

victimisation for getting the service regularised through coercive

method by filing E.P. No. 6 of 2001 and this fact the Labour Court

failed to appreciate, complains the learned counsel. Since the date

of removal to the date of reinstatement, petitioner remained

unemployed, hence, learned counsel submits that his client is

entitled to receive back wages and consequential benefits. Sri

Goud places reliance on the judgment of the Hon'ble Apex Court in

Rajasthan State Road Transport Corporation v. Bhik Nath 1,

wherein in paragraphs 6 and 10, it has been observed as under:

4. On the other hand, learned Standing Counsel for

Corporation submits that number of passengers standing at the

time of check was only 18+1, however, petitioner altered the

number in the SR to 48+1 which clearly establishes that he

tampered the evidence to give an impression that there are more

number of passengers, so that by mistake he could not issue

ticket to one lady passenger. He emphasizes that not issuing a

ticket to the lady passenger is grave misconduct and negligence of

petitioner which cannot be tolerated at all.

5. After hearing learned counsel on either side,

perused the material on record.

6. Ex.M1 (STAR) bears the endorsement of checking

officials which shows that checking took place at 16.35 hours on

16.12.2003 and they boarded the bus at stage No.1 and got down

at stage No.11; number of passengers travelling in the bus at the

time of check was noted as 48+1 = 49 and one lady passenger was

AIR 2005 SC 1571

found without ticket and no fare was collected. Ex.M3 - MTD 43R

Inspector's check sheet shows that number of passengers

travelling in the bus at the relevant time was 18+1 = 19. Though

the case of Corporation is that in Ex.M1, 18 number was altered to

48 with a view to crate that more number of passengers were

travelling in the bus and due to inadvertence, ticket was not

issued to one passenger, on close perusal of Ex.M1, it appears that

48+1 = 49 is very clearly mentioned and no alternation was

appeared to have been made. The Labour Court also found that on

close scrutiny of these figures, it is not so explicit to find out that

it has been altered, perhaps, it may be a mistake of checking who

might have made 48+1 = 49 but by mistake in Ex.M3-MTD-43R,

they have noted as 18+1 = 19 and unless, Ess.M1 and M3 were

referred to hand writing expert, no opinion can be formed on this

aspect. This Court is in full agreement with the findings recorded

by the Labour Court and does not take a contra view.

7. Coming to the aspect of not issuing ticket to one

lady passenger is concerned, there is no evidence that petitioner

deliberately failed to issue ticket with a view to cause loss to the

Corporation. For this, petitioner explained that he had issued

ticket but the passenger misplaced. The checking officials, as

stated by petitioner, issued a top-punched ticket of Rs.4/- and

also imposed a penalty of Rs.20/- for not purchasing the ticket.

However, they failed to record the statement of the passenger to

corroborate their version. In his cross-examination, the TTI also

stated that lady passenger paid fine of Rs.20/- and made him to

collect Rs.4/- fare amount and the passenger cheated for which

she has paid Rs.20/- penalty. Hence, in view of the above, no mala

fide intention can be attributed to petitioner for not issuing ticket.

Therefore, imposing punishment of withholding of one annual

increment without cumulative effect for a period of two years can

be held to be unjust.

8. Regarding the charge that petitioner was working without

MTD 141 card, during the course of enquiry, it was established

that MTD-141 card was not supplied to him and the relevant

column in Ex.M1 also shows as 'NIL'. As rightly, held by the

Labour Court, it is the duty of the conductor to obtain document

MTD 141 which is essential for him and it is also duty of the

management to issue that document. Not possessing 141 MTD

card is in violation of Conduct Regulations of APSRTC. Hence, this

Court is not inclined to find fault with the conclusion with respect

to the same.

9. In the result, the Writ Petition is allowed in part.

While upholding the Award insofar as it directed reinstatement

with continuity of service, but without backwages, rest of the

Award with regard to imposing punishment of withholding of one

annual increment without cumulative effect for a period of two

years is set aside. The Corporation is directed to pay arrears

within a period of four weeks from the date of receipt of a copy of

this order. No costs.

10. Consequently, the miscellaneous Applications, if

any shall stand closed.

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NAGESH BHEEMAPAKA, J 14th November 2023

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