J.V.S.Chary,Tps Colony, ... vs The Regional Managerhcr,Apsrtc, ...
2023 Latest Caselaw 3063 Tel

          HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

               WRIT PETITION No. 15460 OF 2009

     ORDER:

Petitioner called in question the Award dated

10.09.2008 in I.D.No. 50 of 2008 on the file of the Industrial

Tribunal-II, Hyderabad in so far as not granting continuity of

service and other consequential benefits including back-wages. He

therefore, seeks a direction to the respondent Corporation to treat

him as reinstated into service with contionuty of service and other

consequential benefits and back-wages.

2. Petitioner joined services of the respondent

Corporation on 30.09.1996 as Conductor through due process of

selection. While he was discharging his duties, he was suspended

from service alleging cash and ticket irregularities. Departmental

enquiry followed. The Enquiry Officer based on the material

available, held that the charge was proved. Consequently, he was

removed from service by the 2nd respondent on 31.03.2006. Both

the Appeal and the Revision preferred by the petitioner were

rejected. Aggrieved thereby, petitioner raised I.D.No. 192 of 2006

before the Labour Court-I, Hyderabad. Subsequently, the

government transferred the said dispute along with other disputes

in 2008 to the Industrial Tribunal-II, Hyderabad which was

numbered as I.D.No. 50 of 2008.

Petitioner's case is that on 18.08.2005 while he was

conducting the bus on route No. 3K between Kushaiguda and

Afzalgunj, a check was exercised at Nallakunta and found all

passengers with tickets. However, on 24.08.2005 they served a

charge memo. Petitioner is stated to have requested the 2nd

respondent to furnish the documents as the charge memo was not

prepared in his presence. It is his grievance that passengers had

shown old as well as new tickets, but the checking officials ignored

new tickets and prepared charge memo. The 2nd respondent

furnished documents on 12.09.2005 and petitioner submitted

explanation stating that he issued two fresh tickets of Rs.5/-

denomination to passengers in question at Arts College who also

travelled earlier and therefore, those passengers had shown old

and new tickets. In fact, the said passengers found travelling at

the time of checking also explained to the TTIs. that petitioner

issued correct tickets, but the checking officials took two tickets of

Rs.45/- denomination from his tray without his notice and

obtained signature on check sheet by showing the signs and

fabricated the case against him.

3. Learned counsel for petitioner Sri V. Narsimha

Goud submits that check documents furnished to petitioner

clearly demonstrate that signatures were obtained on blank white

paper and subsequently, got it written in his absence as well as in

the absence of passengers. The writing contained on the alleged

passengers' statement would also disclose lot of interpolation. It is

stated that enquiry conducted is prima facie illegal and void in law,

for, when one of the TTIs. K.R.Mouli was giving his evidence

during the course of enquiry, another TTI Mr. Srihari was allowed

and he also signed as if he was examined, which is nothing but

illegal on the part of the respondents. According to learned

counsel, petitioner was paid subsistence allowance up to

December 2005 and from January 2006 onwards, the subsistence

allowance was not paid which is in violation of the Regulations.

Learned counsel submits that the Tribunal erred in holding that

his client did not submit explanation to the charge memo because

he received the charge memo dated 18.08.2005 on 24.08.2005 and

he made representation on 27.08.2005 to the 2nd respondent to

furnish relevant documents, however, pending supply of said

documents, the 2nd respondent suspended him from service.

4. In the counter-affidavit, it is stated that during the

service of petitioner, his annual increment was deferred two times

on the allegation of cash and ticket irregularities. It is stated that

during the subject check, it was found that petitioner collected

Rs.5/- from two passengers and issued tickets but the said tickets

were already sold and accounted in Star Document No.

028/616236, dated 18.08.2005 at 10.35 trip, thus tickets were

recycled and petitioner misappropriated the legitimate revenue of

Corporation. It is further stated that petitioner refused to

acknowledge the charge memo and give spot explanation. The

checking officials noted down the irregularities detected by them

in brief in check sheet dated 18.08.2005 which was acknowledged

by the petitioner. The TTIs have also obtained passengers'

statements duly attested by the petitioner. As the explanation

submitted by him was not convincing, the Depot Manager ordered

a detailed enquiry which was conducted duly following the

principles of natural justice after giving opportunity to petitioner to

defend his case.

5. Learned Standing Counsel for Corporation submits

that since two passengers belong to different areas, the Tribunal is

right in holding that contention of petitioner that the two

passengers travelled in the same bus in morning trip and again

boarded the bus is not believable. It is stated that possession of

used / invalid tickets and issuing the same to the passengers after

collecting fare from them amounts to serious misconduct. He

relied on the judgment of the Hon'ble Apex Court in Motilal and

UPSRTC 1, wherein it was held that '......it is not only the amount

involved but the mental setup , the type of duty performed and

similar relevant circumstances which go into the decision-making

process while considering whether the punishment is proportionate

or disproportionate. If the charged employee holds a position of trust

where honesty and integrity are inbuilt requirements of functioning,

it would not proper to deal with the matter leniently. Misconduct in

such cases has to be dealt with iron hands. Where the person deals

with public money or is engaged in financial transactions or acts in

a fiduciary capacity, highest degree of integrity and trust-

worthiness is must and unexceptionable'.

6. Having heard learned counsel on either side

extensively, perused the record.

7. The charge levelled against petitioner is that he

recycled the tickets. The petitioner primarily questions in this Writ

Petition the manner in which the enquiry was conducted.

According to him, charge memo was not served on the spot and

his spot explanation was not recorded and passengers' statements

contain interpolations, for which, the Corporation's version is that

charge memo could not be served on petitioner on account of

galata made by the passengers and in cities, the passengers would

AIR 2003 SC 1462

not allow the driver to stop the bus. It is the further case of the

petitioner that the two passengers who possessed the tickets are

two individual passengers and they are not related to each other

and both of them have shown the old as well as new tickets.

However, as the statement of passengers was signed by the

petitioner without any protest, the Tribunal believed the version of

the Corporation. The Tribunal in the Award observed that the

statement of the checking officials recorded during the time of

enquiry shows that petitioner cross-examined the checking

officials and they stated the reason for not obtaining correct

address from the passengers and for not verifying the double

punch or due amount. This itself shows that there are some lapses

on the part of the Corporation in conducting enquiry. Further, the

Tribunal while directing reinstatement of service, observed that no

grave irregularities were said to have been committed by him

except participating in a strike for one time and he served the

Corporation for more than ten years without any mistake on his

part except the proved irregularity. In view of the same and in

view of the irregularities while conducting enquiry, this Court is of

the considered opinion that petitioner is entitled for continuity of

service and all attendant benefits also, except back-wages.

8. The Writ Petition is accordingly, allowed in part

directing the Corporation to grant petitioner continuity of service

and all attendant benefits except back-wages. No costs.

9. Consequently, the miscellaneous Applications, if

any shall stand closed.

--------------------------------------

NAGESH BHEEMAPAKA, J

11th October 2023

ksld