Telangana High Court

A.Jaganmohan Rao, Warangal ... vs M.D. Apsrtc, Hyderabad And 2 ... on 4 October, 2023

Bench: Nagesh Bheemapaka

          HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

               WRIT PETITION No. 22861 OF 2011

     ORDER:

Award dated 30.07.2010 in I.D.No. 62 of 2008 on

the file of the Industrial Tribunal-cum-Labour Court, Warangal is

called in question in this Writ Petition. A consequent direction is

also sought to the respondent Corporation to reinstate petitioner

into service with continuity of service, all attendant benefits and

backwages.

2. Petitioner joined the services of the respondent

Corporation on 01.04.1987 as Conductor through due process of

selection. While so, on 07.01.2007, he requested to grant leave as

he was suffering from fever, however, due to dearth of conductors,

he was forced to be on duty. Accordingly, he was conducting the

bus from Hanamkonda to Bhoopalpally on that day. Then, a check

was conducted and he was charged on the allegations of violation

of the principle 'issue and start', cash and ticket irregularities and

recycling of tickets. It is the case of petitioner that at that time, he

was issuing tickets as there were several request stops between

Hanamkonda stage No.1 and Arepally stage No.2 and passengers

were waving their hands and boarding into the bus. At the time of

check, passengers with fear of fine, had shown old tickets. The

checking officials obtained his attestation on the passengers'

statement under threat of insubordination. Further they have not

allowed him to write spot explanation elaborately. The 2nd

respondent Depot Manager without considering all these facts

placed him under suspension and issued charge sheet dated

20.01.2007. Domestic enquiry was conducted, however, the

Enquiry Officer without verifying the facts and circumstances

simply concluded the enquiry holding petitioner guilty of the

charges. Based on that, he was removed from service illegally on

10.09.2007. Both Appeal and Review Petitions were rejected.

Aggrieved thereby, the subject Dispute was raised the Labour

Court. The said Dispute was dismissed vide Award impugned

which triggered petitioner to come before this Court.

3. Per contra, case of the Corporation, as per the

counter, is that:

Petitioner did not maintain clean record all through

his service, hence, he was inflicted with punishments like

censured-eight times, increment deferred - 3 times, suspension -

two times, removed from service - one time. It is denied that

petitioner was forced to proceed on line due to shortage of

conductors though he was suffering from fever. On the fateful day,

while petitioner was conducting the bus, some serious cash and

ticket irregularities of re-issuing the used tickets was detected and

he was served with charge memo. Based on the check report;

petitioner was placed under suspension in the public interest and

a charge sheet was issued on 20.01.2007 with four charges. Not

satisfied with the reply submitted by him, the 2nd respondent

ordered domestic enquiry. The Enquiry Officer issued notices to

him to attend the enquiry on 23.02.2007, 09.03.2007, 22.03.2007

and 31.03.2007. Having acknowledged all the notices, he failed to

attend the enquiry. Consequently, an ex parte enquiry date was

fixed on 08.05.2007. Petitioner requested to provide ten days' time

and attended the enquiry on 25.05.2007. He cross-examined one

of the checking officials Sri V. Mallaiah, TTI and he satisfied with

the proceedings conducted on that day. Petitioner had to produce

witnesses on 08.06.2007 but failed to do so. However, keeping in

view the principles of natural justice another opportunity was

given to defend his case. Even on 29.06.2007 also, he failed to

produce witnesses, hence, there was no option left with the

Enquiry Officer except to submit his findings /report (ex parte) by

taking into account the available documentary evidence viz.

passengers statement, explanation to the charge memo and charge

sheet and attestations made by petitioner at spot including the

statement TTI. Sri V. Malliah in the domestic enquiry in which

petitioner also participated and availed the opportunity by way of

cross-examining him. Having considered the enquiry report, he

was removed from service by order dated 10.09.2007. According to

the Corporation, the claim of petitioner that he was issuing tickets

at the time of check is false and it is only an after-thought on his

part to escape from the charges. A check took place at stage No.2

i.e. Arepally, by which time he should have completed ticket-

issuing process and see that nobody is left without. It is reported

in the check report and charge memo by the TTIs. that all the

passengers in question had boarded the bus at Hanamkonda at

stage No.1 and bound for Parkal i.e. stage No.8, hence, the

question of attending the passengers at the time of check does not

arise at all as claimed by him. Had it been the case, petitioner

would not have acknowledged and singed the check documents as

well as passenger statements as having been recorded and

certified correctly. Petitioner participated only in one of the sittings

out of 9 though opportunity was given to him to appear before the

Enquiry Officer, which clearly shows that he has nothing to offer

in his defence. It is stated that the misconduct committed by

petitioner is of serious in nature, therefore, punishment of removal

from service is in conformity with the gravity of the charges.

It is stated that Corporation is a public utility

service and the very appointment of petitioner was to abide by the

mandatory rules and regulations. The mandatory rules stipulate

that petitioner should complete issuance of tickets correctly at the

boarding point itself and then move the bus for further journey

and to close the S.R. before arrival of next fare stage. But the

petitioner herein violated the same by moving the bus without

completing the formalities and reached the next stage without

ensuring the issue of valid and correct tickets to the passengers on

board.

4. Learned counsel for petitioner Sri M. Kotaiah

mainly contends that when the checking officials entered the bus,

his client was in the process of issuing tickets; by noticing the

officials, passengers took undue advantage and shown old tickets

to avoid complications though they did not purchase tickets; he

therefore, requested the checking officials to verify the cash to

know the genuine facts, but the checking officials believed the

version of passengers and refused to verify the cash; Statistical

Return was not closed at stage No.2 in order to complete the

issuance of tickets; he protested before the checking officials, but

they hastily necked him out from the service and submitted false

report without considering true facts. According to the learned

counsel, enquiry was not conducted in conformity with the

Regulations, hence, requests to consider the case of petitioner

sympathetically.

5. Learned Standing Counsel, on the other hand, while

reiterating the averments in the counter-affidavit submits that

Labour Court is the last Court of fact, it considered in detail the

material available before it and passed a well-reasoned Award

which does not warrant interference. He emphasizes that there is

no requirement of checking cash with the conductor, when there is

adequate evidence which sufficiently established the facts in issue,

non-verification of bus cash by the checking officials does not

make much difference. He places reliance on the order dated

01.10.2018 in Writ Petition No. 15528 of 2007 passed by the

erstwhile High Court of Andhra Pradesh.

6. In this case, the Corporation framed four charges

however, gist of which is there is violation of the rule 'issue and

start' and tickets were recycled. As regards violation of rule 'issue

and start', case of Corporation is that bus started at Hanamkonda

Stage No.1 and proceeding to Parkal Stage No.8, at Stage No.2, the

checking officials entered into the bus and found out of 35

passengers, five were with invalid tickets and S.R. was not closed

at Stage No.2. Petitioner took the plea that some of the passengers

boarded the bus at Mulug X road and Ayyappa Swamy Temple and

he was in the process of issuing tickets, meanwhile, check took

place. It is to be seen on the bottom of every S.R., there are printed

instructions 'start the bus after issuing tickets'. Though petitioner

took the defence that he did not collect the amount and did not

issue tickets and the passengers might have collected the invalid

tickets from their relatives and shown the same to the checking

officials itself shows that he had not completed issue of tickets at

stage No.1 and non-closure of S.R. till the bus reached Stage No.2.

He ought to have issued tickets at the outskirts of Hanamkonda

Town and started the bus. According to the petitioner himself, the

checking officials boarded the bus at Stage No.2 which means that

he failed to close the S.R. at Stage No.2. Hence, the finding

recorded by the Labour Court on the said charge cannot be

faulted.

7. Insofar as the charge that tickets were recycled,

during the check, the passengers shown tickets bearing Nos.

061/350046 to 048 of Rs.14/- denomination and 061/350057 to

058 of Rs. 14/- denomination who boarded the bus at

Hanamkonda Stage No.1 bound for Parkal Stage No.8 which were

issued in the earlier trip between Bhupalpally and Parkal and from

Parkal to Hanamkonda. The passengers stated that they paid Rs.

50/- each batch to the conductor and the said tickets were

handed over to them. The defence put-forth by petitioner in the

explanation is that he did not issue the said tickets in that trip

and there is every possibility of collecting the invalid tickets by the

passengers from their relatives who travelled in the earlier trips

and same were shown to the checking officials. The statement of

one of the checking officials Sri V. Mallaiah in his cross-

examination deposed that passengers in the bus forced them to

move the bus as such they travelled in the same bus to Parkal

where new S.R. was given. One of the passengers by name G.

Sravanthi reveals that she along with two others boarded the bus

at Hanamkonda, they gave Rs.50/- to the conductor who issued

tickets with Sl.Nos. 061/350046, 047, 048, when the checking

official demanded tickets, they handed them over to officials. The

joint statement of Ch. Vani and Ch. Rajyalakshmi is that they

boarded the bus at Hanamkonda bound for Parkal and they gave

Rs.50/- to the conductor, who issued tickets with Sl.Nos.

961/350057 and 061/350058 and the same were handed over to

the checking officials on demand. The said two statements were

attested by the petitioner as service conductor and his explanation

also shows that the said five passengers boarded the bus at

Hanamkonda. The passengers are rustic and they may not have

idea to collect old tickets from their relatives to travel in the next

trip in the same bus. Further, as per the entries in the SR, the

invalid tickets were already issued by petitioner in the earlier trip

while coming from Bhupalapally to Parkal and Parkal to

Hanamkonda. Hence, the contention of learned counsel that

petitioner did not issue tickets cannot be countenanced. This

Court therefore, is of the opinion that Labour Court had

elaborately discussed the material on record and came to the

conclusion which cannot be held as perverse.

8. With regard to the submission that Corporation had

not followed the procedure, learned counsel for petitioner submits

that checking official did not count cash in spite of request made

by his client. A perusal of statement of checking official V. Malliah

before the Enquiry Officer shows that he denied in the cross-

examination that petitioner demanded to check the cash.

Petitioner attested the statement of disputed passengers at the

spot, in those circumstances, counting cash in the cash bag does

not arise. The Labour Court relied on the judgment reported in

North West Karnataka Road Transport Corporation v. H.H.

Pujar (2005-III LLJ 629), wherein it is held that 'non-examination

of ticket-less passengers and non-checking of cash bag is not a

ground for setting aside the dismissal order and strict rules of

evidence is not applicable when the conductor's statement and

record itself established that tickets were issued by the conductor.

When evidence, statements and entries in the S.R. are very clear

that disputed invalid tickets were issued by petitioner himself in

the earlier trip and the same were reissued to the passengers in

the next trip, the Labour Court has rightly come to the conclusion

that findings of the Enquiry Officer are not liable to be interfered.

Moreover, in the counter, respondent Corporation stated that

petitioner did not respond to the notices sent by them, hence,

keeping in view the principles of natural justice, another

opportunity was given to defend his case. Even on 29.06.2007

also, he failed to produce witnesses. As there was no option left

with the Enquiry Officer except to submit his findings /report (ex

parte) , taking into account the available documentary evidence

viz. passengers statement, explanation to the charge memo and

charge sheet and attestations made by petitioner at spot including

the statement TTI. Sri V. Malliah in the domestic enquiry in which

petitioner also participated and availed the opportunity by way of

cross-examining him, he was removed from service by order dated

10.09.2007. Therefore, it cannot be said that Corporation has not

followed the prescribed procedure while conducting enquiry.

9. In Union of India v. P. Gunasekaran 1, the Hon'ble

Apex Court dealt with the scope of interference of this Court under

Articles 226 and 227 of the Constitution of India and held as

under:

" In disciplinary proceedings High Court is not and cannot act as a second court of first appeal and that the High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence and that the High Court can only see whether:

(2015) 2 SCC 610

(a) The enquiry is held by a competent authority;

(b) The enquiry is held according to the procedure prescribed in that behalf;

(d) The authorities have disabled themselves from reaching a fair conclusion by some consideration extraneous to the evidence and merits of the case;

(e) The authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) The conclusion on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) The disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) The disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) The finding of fact is based on no evidence."

In Indian Overseas Bank v. I.O.B. Staff Canteen

Workers' Union 2, the Hon'ble Apex Court held that it is

impermissible for the High Court in exercise of writ jurisdiction to

liberally re-appreciate the evidence and draw conclusions of its

own on pure questions of fact, as the High Court does not exercise

any appellate jurisdiction over the awards passed by a

Tribunal/Labour Court, presided over by a judicial officer. The

Supreme Court further held that the findings of fact recorded by a

fact-finding authority duly constituted for the purpose and which