K. Srinivasulu, vs The Depot Manager, Aps Rtc, ...
2023 Latest Caselaw 3391 Tel

             HON'BLE SRI JUSTICE J. SREENIVAS RAO

                 WRIT PETITION No.1545 OF 2017

ORDER:

This writ petition is filed questioning the impugned Award

passed by the Additional Industrial Tribunal-cum-Labour Court at

Hyderabad in I.D.No.40 of 2003 dated 30.06.2015 confirming the

removal order dated 07.12.2002 passed by respondent No.1.

2. Heard Sri A.G.Satyanarayana, learned counsel for the

petitioner, and Sri Thoom Srinivas, learned standing counsel

appearing for respondent No.1.

3. Learned counsel for the petitioner submits that the petitioner

was appointed as casual Conductor on 18.08.1988 and his services

were regularized with effect from 24.11.1989. While he was on

duty, the checking officials made allegations against him that he

committed cash and ticket irregularities and the petitioner

submitted spot explanation. Thereafter, respondent No.1 issued

charge sheet dated 30.07.2002 and the petitioner submitted

representation dated 05.08.2002 requesting them to supply

documents. Without considering the said representation,

respondent No.1 initiated regular enquiry and appointed an enquiry

officer. The enquiry officer, without giving proper opportunity to

the petitioner, conducted ex parte enquiry and submitted enquiry

report on 28.10.2002 alleging that the charges levelled against the JSR, J W.P.No.1545 of 2017

petitioner are proved. Basing on the enquiry report, the

disciplinary authority removed the petitioner from service on

07.12.2002. Questioning the same, the petitioner filed appeal and

the appellate authority simply rejected the appeal without giving

any reasons, by its order dated 16.04.2003.

3.1. He further submits that aggrieved by the removal order, the

petitioner raised a dispute invoking the provisions of Section 2-(A)2

of the Industrial Disputes Act, 1947 (hereinafter called, 'the Act'

brevity) vide I.D.No.40 of 2003. The Labour Court without properly

considering the contentions of the petitioner dismissed the ID by its

Award dated 08.11.2004. Questioning the same, the petitioner filed

W.P.No.6169 of 2007 before this Court and learned single Judge of

this Court allowed the said writ petition on 15.02.2012 directing

respondent No.1 to reinstate the petitioner into service with

continuity of service, but without back wages and further directed

respondent No.1 to impose the punishment of penalty of

withholding of three annual increments with cumulative effect.

Aggrieved by the said order, respondent No.1 filed W.A.No.1575 of

2012. The Division Bench of this Court allowed writ appeal by

setting aside the order passed by the learned single Judge and

remitted the matter to the Labour Court for fresh consideration by JSR, J W.P.No.1545 of 2017

providing opportunity to both sides and also given liberty to the

petitioner herein to adduce evidence if any, by its order dated

28.03.2013.

3.2. Learned counsel vehemently contended that respondent No.1

has not adduced any fresh evidence before the Labour Court. In

spite of the same, the Labour Court, without properly considering

the contentions of the petitioner, dismissed the I.D. and passed the

impugned Award on 30.06.2015 with same reasons without

granting any relief to the petitioner and the same is contrary to law.

3.3. He further contended that the Labour Court while holding

that the punishment of removal from service is disproportionate, on

the other hand, dismissed the I.D. basing upon the previous

conduct of the petitioner and the same is contrary to law. He

further contended that the checking officials are not verified the

cash bag of the petitioner and not examined the passenger as

witness before the enquiry officer to prove the charges. In spite of

the same, the disciplinary authority removed the petitioner from

service basing upon the ex parte enquiry report submitted by the

enquiry officer.

3.4. In support of his contention, he relied upon the judgment of JSR, J W.P.No.1545 of 2017

this Court in W.P.No.15528 of 2018 dated 01.10.2018 and Nara

Goud v. Industrial Tribunal-cum-Labour Court, Warangal and

another 1.

4. Per contra, learned standing counsel contended that the

petitioner committed a grave misconduct while discharging his

duties. Respondent No.1 after duly following the procedure as

contemplated under the Regulations issued charge sheet and

conducted regular enquiry by appointing an enquiry officer. During

the course of enquiry, the enquiry officer has given several

opportunities to the petitioner to defend his case. In spite of the

same, the petitioner has not participated in the enquiry. The

enquiry Officer after conducting detailed enquiry submitted enquiry

report, wherein it is specifically stated that the charges levelled

against the petitioner proved. Respondent No.1 after following the

procedure including principles of natural justice and after

considering the explanation dated 07.12.2002 and also after due

verification of the records and enquiry report, the disciplinary

authority rightly imposed the punishment removing the petitioner

from services by giving cogent reasons through order dated

07.12.2002 and the said order was confirmed in the appeal on

1 1996 (3) ALT 648 JSR, J W.P.No.1545 of 2017

16.04.2003. Thereafter, the petitioner raised a dispute before the

Industrial Tribunal vide I.D.No.40 of 2003 and the Labour Court

dismissed the same on 08.04.2004. Questioning the same, the

petitioner filed W.P.No.6169 of 2007 and the same was allowed on

15.02.2012. Aggrieved by the same, respondent No.1 filed

W.A.No.1575 of 2012 and the same was allowed and remitted the

matter to Labour Court to pass orders afresh by giving opportunity

to both sides and also given liberty to the petitioner to adduce

evidence on his behalf, by its order dated 28.03.2013.

4.1. Learned standing counsel vehemently contended that

pursuant to the orders passed in W.A.No.1575 of 2012, the

petitioner has not chosen to produce any iota of evidence before the

Labour Court to prove his claim. The Labour Court, after

considering the contentions of both parties, documentary evidence,

rightly passed the impugned Award by giving cogent reasons, and

there is no illegality or irregularity in the said Award.

5. Having considering the rival submissions made by the

respective parties and after perusal of the material available on

record, it is revealed that respondent No.1 issued charge sheet on

20.07.2002 invoking the Regulation 28 (xxxii) of the TSRTC JSR, J W.P.No.1545 of 2017

Employees (Conduct) Regulations 1963. It is very much relevant to

extract the said charges hereunder:

1. You have failed to complete the ticket issues before reaching the stage while conducting bus No.5896, on Route No.10K on 20/07/2002 which constitutes misconduct under Reg.28(xxxii) of APSRTC Employees (Conduct) Reg.1963."

2. "You have reissued the ticket No.579/292987 of Rs.3/- den. Which was punched at stage No.1 & 2 Sec'bad stn. In your trip leaving Sec'bad at 17.05 hrs. to a passenger who was found travelling on the said ticket from ESI to Bharatnagar ex.stages 5/6 to 6/7 having collected an amount of Rs.3/- from her while conducting bus No.5896, on route No.10K on 20/07/2002 which constitutes misconduct under Reg.28 (x) & (xxiii) of APSRTC Employees (Conduct) Reg.1963."

3. You have failed to show the stage No.7 in your trip in which check took place left Sec'bad at 17.05 hrs from Kukatpally while conducting bus No.5896, on route No.10K 20/7/2002 which constitutes misconduct under Reg.28(xxxi) of APSRTC Employees (Conduct) Reg.1963."

4. You have possessed ticket No.579/292996 of Rs.3/- den. Punched on stage No.2 in your cash bag at the time of check while conducting bus No.5896, on route No.10K, on 20/07/2002 which constitutes misconduct under Reg.28(xxxi) of APSRTC Employees (Conduct) Reg. 1963."

6. Pursuant to the same, the petitioner submitted explanation

on 05.08.2002. Respondent No.1 not being satisfied with the same

ordered regular enquiry by appointing an enquiry officer. It

appears form the record that the enquiry officer on three occasions

had issued notice to the petitioner directing him to appear before

the enquiry. The petitioner has not appeared before the enquiry

officer. The enquiry officer after following the due procedure JSR, J W.P.No.1545 of 2017

submitted enquiry report on 28.10.2002 wherein it is stated that

the charges leveled against him are proved. Respondent No.1

issued letter to the petitioner on 02.11.2012 directing him to

submit objections to the enquiry officer's report by furnishing the

enquiry report. The disciplinary authority not satisfying with the

explanation has issued show-cause notice on 18.11.2002 directing

the petitioner to submit explanation as to why his services should

not be removed. Pursuant to the same, the petitioner submitted

his explanation on 02.12.2002. The disciplinary authority after

considering the explanation issued order on 07.12.2002 removing

the petitioner from service. Questioning the said order, the

petitioner filed appeal before the appellate authority and the same

was dismissed by its order dated 16.04.2003.

7. Aggrieved by the removal order, the petitioner raised a dispute

vide I.D.No.40 of 2003 before the Labour Court and the same was

dismissed by its Award dated 07.12.2002. Questioning the same,

the petitioner filed W.P.No.6169 of 2007 and the learned Single

Judge of this Court allowed the said writ petition on 15.02.2012

directing respondent No.1 to impose punishment of withholding of

three annual increments and also further directed respondent No.1

to reinstate the petitioner into service with continuity of service, but JSR, J W.P.No.1545 of 2017

without back wages.

8. Aggrieved by the same, respondent No.1 filed W.A.No.1575 of

2012 and the Division Bench of this Court allowed the said appeal

by remitting the matter to the Labour Court by its order dated

28.03.2013.

9. It is very much relevant to extract the operative portion of the

order, which reads as under:

"Therefore, without going into the merits of the allegations made in the charge sheet and the findings arrived at by the Enquiry Officer in his ex parte report, to meet the ends of justice, we deem it appropriate to set aside the order of the learned single Judge and to remand the matter to the Labour Court for fresh consideration in the light of the observations made above. Respondent No.1 is at liberty to adduce evidence, if any. The Labour Court after providing opportunity to both the sides, shall pass appropriate orders."

10. In the above said order, the Division Bench has given

opportunity to the petitioner to adduce evidence on his behalf to

prove his claim raised in I.D.No.40 of 2003 before the Labour Court

and further directed the Labour Court to pass appropriate orders

after giving opportunity to both parties.

11. The contention of learned counsel for the petitioner is that

respondent No.1 has not adduced any evidence before the Labour JSR, J W.P.No.1545 of 2017

Court nor examined any witness after remand is not tenable under

law, on the sole ground that the initial burden lies upon the

petitioner to establish the claim made before the Labour Court by

adducing necessary evidence. The judgments relied upon by

learned counsel for petitioner in W.P.No.15528 of 2018 and Nara

Goud (supra 1) are not applicable to present facts and

circumstances of case on sole ground that the petitioner in spite of

receiving the notice from the enquiry officer failed to attend the

enquiry nor produced any evidence before the Labour Court.

12. It appears from the record that the petitioner has not

produced any iota of evidence after remanding the matter to the

Labour Court nor taken any steps by filling necessary applications

in support of his claim under the provisions of the Act or by

invoking the provisions of C.P.C. directing respondent No.1 to

produce relevant documents or summon any witness to discharge

his initial burden. It further reveals from the record that the

petitioner has not filed any application before the Labour Court

that the domestic enquiry conducted by respondent No.1 is not

valid under law. In such circumstances, the petitioner is not

entitled to contend that respondent No.1 removed the petitioner

basing upon enquiry report submitted by the enquiry officer, JSR, J W.P.No.1545 of 2017

especially he has not utilized the opportunity given by the Division

Bench of this Court in W.A.No.1575 of 2012 dated 28.03.2013.

13. It is very much relevant to mention here that the Labour

Court while holding that the punishment of removal from service is

disproportionate, on the other hand dismissed the I.D. basing upon

the previous conduct of the petitioner in the absence of any specific

charge, especially without invoking the provisions of Section 11-A

of the Act.

14. Taking into consideration the facts and circumstances of the

case and length of service rendered by the petitioner and also to

meet the ends of justice, this Court deems it fit and proper to

modify the impugned Award passed by Labour Court holding that

the petitioner is entitled to reinstatement with continuity of service

for the purpose of claiming terminal benefits only, and he is not

entitled any other benefits including back wages.

15. Accordingly, respondent Corporation is directed to reinstate

the petitioner into service within two (2) months from the date of

receipt of a copy of this order subject to medical examination with

continuity of service for the purpose of claiming terminal benefits

only.

JSR, J W.P.No.1545 of 2017

16. With the above modification, the writ petition is disposed of,

accordingly. No costs.

Miscellaneous petitions pending, if any, shall stand closed.

______________________ J. SREENIVAS RAO, J

Date : 30.10.2023 mar