Andhra HC (Pre-Telangana)
Md.Rasheed vs The Managing Director, ... on 19 March, 2014
Author: Dama Seshadri Naidu
Bench: Dama Seshadri Naidu
THE HONBLE SRI JUSTICE DAMA SESHADRI NAIDU W.P.No.16876 of 2006 19-03-2014 Md.Rasheed..... PETITIONER The Managing Director, APSRTC,Musheerabad, Hyderabad and others.....RESPONDENTS Counsel for the petitioner: Sri S.M.Subhan Counsel for respondents : Sri H.Venugopal <Gist: >Head Note: ?Cases referred: 1. 1985(1) SLR 533 2. Un-reported judgment in W.P.No.21641 of 2002 decided on 03.09.2013 3. Un-reported judgment in W.P.No.25440 of 2006 decided on 08.10.2013 4. 2009(4) ALD (NOC 45) 5. 2013(5) ALT 176 6. (2000) 3 SCC 450 7. (1998) 3 SCC 192 8. (2007) 4 SCC 669 9. 1985 AC 374 : (1984) 3 WLR 1174 10. AIR 1965 SC 917 11. AIR 1974 SC 555 12. AIR 1997 SC 3387 13. (1997) 3 SCC 72 14. AIR 2000 SC 1163 15. AIR 1999 SC 625 16. AIR 2003 SC 1571 17. (2003) 3 SCC 605 18. AIR 2003 SC 3712 19. AIR 1960 SC 468 20. (1990) 2 SCC 203 21. (2011) 4 SCC 584 22. (2013) 10 SCC 106 HONBLE SRI JUSTICE DAMA SESHADRI NAIDU WRIT PETITION No.16876 of 2006 ORDER:
The present writ petition is filed impugning the Award dated 27.12.2005 in I.D.No.86 of 2003 passed by the 3rd respondent-Labour Court-II, Hyderabad (the Labour Court for brevity), confirming the 2nd respondents order dated 06.11.2002, whereby the petitioner was removed from service by the Disciplinary Authority for what is said to be a proven major misconduct committed by the petitioner-workman.
FACTS:
The facts in brief are that the petitioner joined as a conductor in A. P. State Road Transport Corporation (the Corporation for brevity) in 1981 and later got his services regularised on 07.01.1993. When the petitioner was conducting the bus of the Corporation from Patancheru to Ordinance Factory on 16.04.2002, en route a check was held.
Observing certain irregularities in the ticketing process, the Corporation charge sheeted the petitioner. Subsequently, not satisfied with the petitioners explanation, the Corporation conducted a departmental enquiry, which culminated in the 2nd respondents passing an Order dated 06.11.2002 inflicting on the petitioner the major punishment of removal from service. Aggrieved by the said punishment, the petitioner approached the Labour Court invoking Section 2-A of the Industrial Disputes Act, 1947 (the Act for brevity). On appreciation of the entire material on record, the Labour Court eventually returned a Nil Award dated 27.12.2005, thus confirming the punishment awarded by the Disciplinary Authority. Further aggrieved, the petitioner has filed the present writ petition.
SUBMISSIONS:
Sri S.M.Subhan, the learned counsel for the petitioner, has submitted that the petitioner has issued tickets correctly to all the passengers on board and reflected the numbers of those tickets in his SR. When the check was conducted, contended the learned counsel, five of the passengers mistakenly showed the tickets which had been issued in the earlier trips. In other words, the learned counsel has contended that those five passengers may have travelled in the same bus on earlier trips, and, in the confusion, when the checking officials started checking the tickets, they produced the tickets of those earlier trips rather than the tickets that were given by the petitioner in the current trip. The learned counsel has also submitted that the Disciplinary Authority, during the course of enquiry, has not considered the explanation submitted by the petitioner, nor has he considered the past blemishless conduct of the petitioner for more than a decade.
The learned counsel has strenuously contended that in terms of Circular No.32/91-OPD(c), dated 24.09.1991 for the proven misconduct like issuing the reused tickets, the punishment prescribed is deferment of one increment with cumulative effect. The Disciplinary Authority, however, imposed the capital punishment of removal from service, which is totally unjustified and which is shockingly disproportionate to the alleged misconduct the petitioner has been charged with.
The learned counsel has also vehemently contended that the Disciplinary Authority in a mechanical and pre-determined manner imposed the punishment of removal from service, and that unfortunately even the Labour Court has failed to interfere with the matter. Elaborating on the said submission, the learned counsel has stated that Section 11-A of the Act confers extensive powers on the Labour Court to re-appreciate the evidence and the material on record and to come to a different conclusion when the facts of the matter warrant it. The Labour Court, it is contended, has failed to exercise the powers conferred on it under Section 11-A of the Act. It has, on the other hand, chosen to mechanically confirm the order of the Disciplinary Authority, thus committing a jurisdictional error of not exercising the powers vested in it. The learned counsel has contended that though statements of passengers were recorded during the spot check, none of the passengers was examined in the departmental enquiry.
Summing up his submissions, the learned counsel has submitted that the petitioner has not committed any irregularity, much less ticketing and cash irregularities, and the punishment imposed is shockingly disproportionate, even assuming, without conceding, that there were any lapses on the part of the petitioner in properly accounting for the tickets. In fact, the learned counsel has laid much stress on the aspect of proportionality. Hence it is proposed to examine the said issue at length at the appropriate place of this disposition.
In support of his submissions, the learned counsel has placed reliance on the following judgments:
1) Khem Chand vs. The State of Rajasthan and others .
2) The Depot Manager, A.P.State Road Transport Corporation, Tadepalligudem Depot, West Godavari District vs. R.Appa Rao .
3) Mutyala Venkateswara Rao vs. The Managing Director, APSRTC, Musheerabad, Hyderabad and others .
4) Depot Manager, APSRTC, Hyderabad-II Depot, Hyderabad vs. K.Jogi Reddy and another .
5) K.Suresh vs. APSRTC, rep. by its Managing Director and others .
6) U.P.State Road Transport Corpn. and others vs. Mahesh Kumar Mishra and others .
7) Colour-Chem Ltd. Vs. A.L.Alaspurkar and others .
Per contra, the learned Standing Counsel for the respondent Corporation, in tune with the pleas taken in the counter affidavit, has contended that the disciplinary proceedings were held in accordance with the law and all procedural safeguards have been scrupulously complied with. Initially, after examining the explanation submitted by the petitioner, and only based on the material brought on record during the course of enquiry, the Disciplinary Authority imposed the major punishment of removal from service. The learned Standing Counsel has contended that based on the charges framed against the petitioner, and in the light of the evidence that has come to be placed on record, the Disciplinary Authority has held that the charges constituted major misconduct in terms of Regulation 28 (xxxii), (xxiii) and (xxxi) of the APSRTC Employees (Conduct) Regulations, 1963.
The learned Standing Counsel, adverting to the facts of the matter, has contended that when the check was effected, though the passengers gave statements, despite the opportunity given to him, the petitioner refused to give any spot statement; on the other hand, the petitioner took shelter under a lame excuse that he was in a confused state of mind. According to the learned Standing Counsel, the petitioners refusal at the earliest point of time to give a spot statement exposes his guilty mind. Countering the allegations that the passengers who gave statements were not examined during the course of enquiry, the learned Standing Counsel has stated that initially the Corporation examined the checking officials i.e., T.T.Is., but the petitioner did not chose to cross-examine them, despite the opportunity given. As such, the question of examining further witnesses, be it the passengers or any other person, does not arise. Summing up his submissions, the learned Standing Counsel has stated that there are no procedural shortcomings in the departmental enquiry and that at every stage the petitioner was afforded an opportunity.
The learned Standing Counsel has submitted that even after a thorough examination of the record, the Labour Court refused to interfere with the findings of the Disciplinary Authority as they did not suffer from any irregularity. Specifically addressing the issue of the alleged disproportionality of punishment, the learned Standing Counsel has stated that in terms of Regulation 28, the charges that have been levelled against the petitioner fall under the ambit of major misconduct, on establishing which, the just and proper punishment would be removal from service. The learned Standing Counsel, on his part, has placed reliance on Coimbatore District Central Cooperative Bank vs. Coimbatore District Central Cooperative Bank Employees Assn. and another .
Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Corporation, apart from perusing the record.
DISCUSSION:
To appreciate the rival contentions, it may be appropriate to adumbrate the charges that have been levelled against the petitioner. The first charge, inevitably, is that there is a violation of rule of issue and start. The second, third and fourth charges cumulatively read to the effect that for five passengers, having collected requisite fare, the petitioner reissued tickets which had already been accounted for in earlier trips.
When a challenge was laid against the order of removal passed by the 2nd respondent, the Labour Court negatived the first issue, holding that all passengers were issued tickets, and as such the question of violation of issue and start does not arise.
Concerning the other three charges, which cumulatively involve the issue of reused tickets to five passengers, it was brought on record by the Corporation during the course of enquiry, as was observed by the Labour Court, that there were in total 44 passengers in the bus and 39 had regular tickets. Five passengers were found to have with them reused tickets. When questioned, those passengers said to have stated to the checking officials that after the payment of the requisite fare, they were issued only those tickets. Evidently four out of five passengers possessing the used tickets gave statement to the same effect. Since one passenger did not issue any spot statement to the checking officials, to the extent of one reused ticket, the Labour Court has rightly disbelieved the charge. It is clear from the record that despite the checking officials pointing out to the passengers that those five tickets had been reissued, they insisted that those are the tickets that had been given to them by the petitioner after collecting the fare.
As such, the question of those passengers getting confused and producing tickets they purchased on earlier trips does not hold up to scrutiny.
STATUTORY SCHEME:
Before going further in discussing the issue, it is profitable for a proper appreciation of the matter to have the statutory scheme or regulatory regime of the respondent Corporation examined.
In terms of Section 45(1) of the Road Transport Corporation Act, 1950 (Central Act 64 of 1950), the Government of Andhra Pradesh, through G.O.Ms.No.2158, dated 20.11.1963, framed Employee Conduct Regulations and got them approved by the Corporation in Resolution No.76/1963, dated 24.05.1963. These regulations are called the A.P. State Road Transport Corporation Employees (Conduct) Regulations, 1963 (Conduct Regulations for brevity).
Regulation 28 of the Conduct Regulations spells out the instances of misconduct. The following are, inter alia, the relevant heads of misconduct:
i) *** ii) *** iii) *** iv) Abuse or misuse of property of the Corporation: v) *** vi) (a) Failure on the part of the Conductor/Booking Clerk to issue
valid passengers/luggage ticket, in accordance with the order passed by the Corporation or any other authority under the Corporation, from time to time, before starting or allowing a bus to be started from the point, where such passenger/luggage, boarded or loaded as the case may be in respect of mofussil services, and before passing a Ticket Issue Completion Point, fixed from time to time in respect of City/Town Services.
(b) *** vii) *** viii) *** ix) a) gross negligence resulting in or likely to result in serious loss
to the Corporation or inconvenience to the public or both;
b) neglect of duty resulting in or likely to result in danger to the lives of employees or of their persons or both;
x) Theft, fraud, dishonestly or misappropriation in connection with the business or the property of the Corporation;
xi) *** xii) *** xiii) *** xiv) *** xv) Any act involving moral turpitude which is punishable under the provisions of the Indian Penal code; xvi) *** xvii) *** xviii) *** xix) Repeated or continued negligence or neglect of work; xx) *** xxi) *** xxii) *** xxiii) Issue of used tickets to passengers;
xxiv) Excess cash found with a conductor or driver without proper explanation;
xxv) Under-issue of tickets i.e., issue to tickets for less than the actual distance travelled by a passenger and failure on the part of a conductor to maintain records in the proper manner;
xxvi) *** xxvii) *** xxviii) *** xxix) *** xxx) ***
xxxi) any other act not specifically mentioned above but which is prima facie detrimental to the interests of the Corporation;
xxxii) violating any other specific rule or instructions of the Corporation in force.
(matter not relevant omitted) Similarly exercising the same power of delegation under Section 45 (1) of the Central Act, the Government also framed A.P. State Road Transport Corporation Employees (Classification, Control and Appeal) Regulations, 1967. (CCA Regulations for brevity) Part IV of the CCA Regulations deals with discipline and penalties. Under Regulation 8 the enumerated penalties, subject to certain exceptions, to be imposed upon an employee are:
i. Censure: ii. Withholding of the privilege of free passes or privilege
ticket orders or both for travel on the railway or the bus services of the Corporation, as the case may be, in the case of employees to whom such privilege or privileges are admissible;
iii. Fine, in the case of persons for whom such penalty is permissible under these Regulations, vide sub-clause (3);
iv. Withholding of increments; v. Recovery from pay of the whole or part of any pecuniary
loss caused to the Corporation by and employees negligence or breach of orders;
vi. Suspension, where a person has already been suspended under regulation 18 pending enquiry into his conduct, to the extent considered necessary by the authority imposing the penalty;
vii. Reduction to a lower rank in the seniority list or to a lower post or time-scale, whether in the same class of service or in another class, or to a lower stage in a time- scale;
viii. Removal from the service of eh Corporation which ordinarily disqualifies from future employment.
In fact, the penalty of withholding of promotion may be imposed in addition to any of the other penalties that may be imposed in respect of the same act or omission on the part of an employee. It is further provided that the penalty of recovery form pay of the whole or part of any pecuniary loss caused to the Corporation by an employees negligence or breach of orders may be imposed in addition to any other penalty which may be inflicted in respect of the same act of negligence or breach of orders.
Regulation 9 enumerates the circumstances under which penalties may be imposed. Dismissal of an employee is warranted in the cases of:
a. Conviction by a court on a criminal charge; or b. Serious misconduct; or c. Neglect of duty resulting in or likely to result in loss to the Corporation or danger to the lives of its employees or of other persons; or d. Insolvency or habitual indebtedness; or e. Obtaining employment by the concealment of his antecedents which would have prevented his employment in the service of the Corporation had they been made known, before his appointment, to the authority appointing him; or f. Wilfully concealing the fact of his being or becoming subject to any of the disqualifications mentioned in section 16 of the Road Transport Corporations Act, 1950.
It is to be observed that by appending a note to Reg.9, the CCA Regulations define Serious Misconduct as including:
I. Embezzlement II. Fraud III. Forgery IV. Cheating in his capacity as an employee V. Taking and offering of bribes VI. Improper behaviour towards women passengers VII. Any other act involving moral turpitude which is punishable under the Indian Penal Code, 1860 VIII. Sabotage IX. Being under the influence of drink while on duty X. Insubordination XI. Misappropriation XII. Theft of Corporation property
XIII. Obstructing an employee of other public servant in the discharge of his duties.
XIV. Assaulting any person inside the premises or vehicles of the Corporation.
XV. Taking part in subversive or political activities or activities prohibited by any law in force or made furnish able by any law in force or other activities prejudicial to the interest of the Corporation.
XVI. Making malicious of false allegations XVII. Unauthorised communication of official documents or information.
Removal from service is warranted under certain enumerated circumstances, which are as follows:
a. Committing an offence for which he is liable to be dismissed; or b. Misconduct; or c. Inefficiency; or d. Repeated commission of minor offences; or e. Irregular attendance; or f. Absenting himself or overstaying sanctioned leave, without sufficient cause; or g. Incivility to members of the public; or h. Becoming subject to any of eh disqualifications mentioned in section 16 of the Road Transport Corporations Act, 1950.
Thus, either dismissal or removal could be an option for all the offences which have been enumerated under the head of Dismissal. In other words, discretion has been conferred on the Disciplinary Authority in this regard.
All other penalties specified in regulation 8, viz., other than dismissal or removal, may be imposed on an employee in the following circumstances:
(a) acts, or omissions for which the employee is liable to be dismissed or removed from service, but in respect of which such a penalty is considered excessive in view of the attendant circumstances;
(b) any minor lapse or delinquency:
Provided that in the case of employees governed by the provisions of the Payment of wages Act, 1936 (Central Act No.4 of 1936), a penalty of fine or recovery from the pay may not be imposed except in accordance with the provisions contained in that act in this behalf.
Regulation 10 specifies the authorities who are competent to impose penalties. In sum and substance, it is the appointing authority or any other authority authorised by a regulation or resolution of the Corporation. It is provided to the effect that the order of a higher authority imposing or declining to impose in any case a penalty under these regulations shall supersede any order passed by a lower authority in respect of the same misconduct.
Regulation 11 concerns itself with the initiation of disciplinary proceedings. Usually it is the appointing authority or any other superior authority or any other authority authorised in that behalf by the Corporation by a resolution, who is empowered for the said purpose. The authority competent can authorise any other authority superior in rank to the employee charged to conduct an enquiry. In fact, an employee can always call for an explanation from another employee who is administratively subordinate to him in respect of any matter pertaining to his duties.
Regulation 12 lays down the procedural parameters for imposing penalties.
12. Procedure for imposing penalties:
(1) No order imposing any of the penalties specified in items
(i) to (vi) of clause (i) of regulation 8 shall be passed except after-
(a) the employee concerned is informed in writing of the proposal to take action against him and of the allegations on which action is proposed to be taken and is given an opportunity to make any representation he may wish to make; and
(b) such representation, if any, is taken into consideration by the authority imposing the penalty.
The record of proceeding in such cases shall include a copy of the intimation to the employee of the proposal to take action against him a copy of the statement of allegations communicated to him, his representation, if any, the findings arrived at on the allegation with reasons the therefore and the orders passed on the case by the authority competent to impose the penalty.
(2) No order imposing on an employee any of the penalties specified in items (vii) (viii) and (ix) of clause (1) of regulation 8 shall be passed except after an enquiry is held as far as may be in the manner hereinafter provided.
(3) The grounds on which it is proposed to take action shall be reduce to the form of a definite charge or charges and communicated to the employee charged together with statement of the allegations or a copy of the report on which each charge is based, and of any other circumstances which it is proposed to take into consideration in passing orders on the case.
(4) The employee shall be required within such time as may be considered by the enquiring authority reasonably adequate in the circumstances of the case (ordinarily not less than seven clear days from the date he receives the charge sheet to put in a written statement of his defence.) (5) The employee charged shall, if the so desired, for the purpose of preparing his defence, be permitted to inspect and take extracts from such official records as he may specify.
Provided that the enquiring authority may, for reasons to be recorded in writing, refuse him such access if in its opinion-
(a) Such records are not relevant for the purpose or it is against the public interest to allow access thereto;
Or
(b) Such records are of a secret or confidential nature, provided that the substance of such records is communicated to the delinquent employee.
(6) If within the prescribed time or such further time as the Enquiring Authority may allow no written statement in defence is filed no request for being heard in person is received, the Enquiring Authority may proceed to record his findings without holding any further enquiry.
(7) If the employee charged desires to be heard in person, or if the Enquiring Authority considers it necessary to hear him in person, he shall be so heard by the Enquiry Authority. If he desires that an oral Enquiry be held or if the Enquiring Authority or the authority competent to impose the penalty considers it necessary an oral Enquiry may be held by the Enquiring Authority into such charges as are not admitted.
(8) The Enquiring Authority shall in the course of the Enquiry consider such documentary evidence and take such oral evidence as may be relevant or material to the charges. The employee concerned shall be entitled to cross examine any witness, it shall record its reasons in writing.
(9) The statements made by the employee and the witnesses, if any, shall be recorded either in English or in the language in which they are made, according as the Enquiring Authority may decide. The Enquiring Authority may put such questions as it may deem necessary to the employee or to the witnesses, to elicit information on any points which, in its opinion, require clarification. The Statement so recorded shall be read over to the deponent and; if necessary, explained to him in the language in which it was give. It shall be corrected, if necessary, or the Enquiring Authority may make a memorandum of the objection, if any, raised by the deponent and add such remarks as it may consider necessary. The statements shall then be signed by the deponent, by the employee charged, if he himself is not the deponent, and by the Enquiry Authority. The employee charged, if he himself is not the deponent, and by the Enquiry Authority. The employee charged may, if he so desired, be allowed to take copies of the statements so recorded.
(10) At the conclusion of the Enquiry, the Enquiring authority shall prepare a report of the enquiry, record its findings on each of the charges with reasons therefore, and forward the proceedings of the enquiry to the authority competent to impose the penalty, unless the Enquiring Authority is itself competent to do so. The proceedings of the enquiry shall contain the charges framed against the employee along with the grounds of the charge, the written statements, if any filed in defence, the oral evidence taken during the enquiry, the documentary evidence considered in the course of the enquiry, the orders if any, made by the Enquiring Authority in regard to the enquiry, and a report setting out the findings on each charge and the reasons therefore.
(11) If in the opinion of the Enquiring Authority the proceedings of the enquiry establish charge different from those originally famed, it may record findings on such charges, provided that findings on such charges shall not be recorded unless the employee has admitted the facts constituting them or has had an opportunity of defending himself, against them.
(12) The authority competent to impose the penalty shall, if it is not the Enquiring Authority, consider the proceedings of the enquiry and record its findings on each charge.
(13) The authority competent to impose the penalty shall then determine what penalty, if any, should be imposed on the employee, and pass appropriate orders on the case. If the penalty proposed to be imposed is one of the penalties specified in items (viii) and (ix) of Regulation 8, he should be given an opportunity to show cause why the said penalty should not be impose.
(14) If the authority competent to impose the penalty having regard to its findings is of the opinion that any of the penalties specified in items (i) to (vi) of clause (1) of Regulations 8 would be adequate, if shall pass appropriate orders on the case.
(emphasis added) To stress the flexibility in the procedure to be adopted in the departmental proceedings, regulation 13 provides for special procedure in certain cases, especially in the cases of conviction in criminal cases and also where the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said regulation. The Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit.
Regulation 14 speaks of communication of the orders imposing penalties; Reg.15, with supply of proceedings, etc.; Reg.16, with withholding of increments; Reg. 17, with pay on reduction to a lower post; and Reg.18, with suspension of the employee. What is relevant is that where an order of penalty of dismissal or removal from service imposed upon an employee under suspension is set aside in appeal or on review under these Regulations, and the case is remitted back for further enquiry or action or with any other direction, the order of his suspension shall be deemed to have been continued in force on and from the date of the original order of dismissal or removal and shall remain in force until further order. So shall be the procedure where an order of penalty of dismissal or removal form service imposed upon and employee is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the appointing authority on a consideration of the circumstances of the cases decides to hold a further enquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed.
A further perusal of the regulations reveals that Reg.19 specifies the extent of the period of suspension; and Reg.20, with subsistence allowance. In terms of Reg.21, when an employee who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order as to (a) the pay and allowances which shall be paid to the employee for the period of his absence from duty; and (b) whether or not the said period is spent on duty. Where such competent authority holds that the employee has been fully exonerated or, in the case of suspension, that it was unjustifiable, the employee shall be granted the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be. In all other cases, the employee shall be granted such proportion of pay and allowances as the competent authority may direct. In fact, in a case falling under Sub-Clause (a) Reg.21, the period of absence from duty shall for all purposes be treated as a period spent on duty. In a case falling under Sub-Clause (b) of the same regulation, the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specific purposes. It will be open to the competent authority to convert the period into one of leave due.
Part V of the CCA Regulations deals with appeals.
Reg.22 specifies the matters in respect of which and authorities to whom appeals lie. No appeal in terms of Reg.23 shall be filed beyond two months from the date on which the appellant receives a copy of the order appealed ageist. The appellate authority, however, is conferred with the power to condone the delay. Reg.27 specifies the duties of the appellate authorities. Part VI of the CCA Regulations deals with Review, which is specifically dealt with by Reg.29. Under Reg.30, the Corporation, in fact, has been conferred with the suo moto power of review.
CAN THE LABOUR COURT/TRIBUNAL BE APPROACHED WITHOUT EXHAUSTING INTRA-DEPARTMENTAL REMEDIES?
In the present instance, the petitioner did not exhaust the option of either intra-departmental appeal or the subsequent revision. He, however, directly laid challenge against the order of the Disciplinary Authority by raising an industrial dispute before the Labour Court under Section 2-A of Act. The Labour Court, in response to the objection raised by the Corporation, framed an issue on the permissibility of raising an Industrial Dispute without exhausting the departmental remedies and held in favour of the workman-petitioner. Neither of the parties has raised before this Court the said issue. As such, this Court does not propose to examine it.
HAVE THE CHARGES BEEN PROVED?
In the light of the above regulatory regimen, the learned counsel for the petitioner has laid much stress on the fact that though certain passengers gave spot statement to the checking officials, none of those passengers was examined during the course of departmental inquiry. On this count, the learned counsel has strenuously contended that the Disciplinary Authority and subsequently the Labour Court ought not to have believed the self-serving statements of the officials of the Corporation. In this regard what is not to be lost sight of is that when the Corporation examined one of its checking officials in departmental inquiry, the petitioner declined to cross-examine the witness. Even as a matter of common law principle, if not the statutory scheme under the Indian Evidence Act, a statement which has not been contradicted and the testimony of a witness, which has not been shaken in the cross- examination, shall be deemed to have been proved. In other words what is not traversed is deemed to have been admitted. In the present instance when the checking officials deposed on oath, their statements, despite the opportunity given, were not tested on the anvil of cross- examination by the petitioner. Having let go of an opportunity to challenge the testimony of the officer of the Corporation, it does not lie in the mouth of the petitioner to say that the enquiry stood vitiated for not examining the passengers.
The record, as has been reflected in the Award dated 27.12.2005, does not indicate that the Disciplinary Authority has come to the conclusion of having the charges proved on the basis of the spot statements of the passengers. Even otherwise, the very conduct of the petitioner does not inspire confidence to hold that he has not been guilty of the misconduct he has been charge with. In the first instance, the petitioner refused to give spot statement either presenting his own version or putting on record a dissent against the statements given by the passengers. In other words, if it were to be treated as a spot statement, at the time of surprise check, all that the petitioner said was that he had been in a confused state of mind and that he did not know what he had been doing. Ipso facto, the petitioner let go of the earliest opportunity to contradict the version of the Corporation, and thus introduce an explanation to the charges.
In this regard, it is appropriate to examine the ratio laid down by the Honble Supreme Court in Mahesh Kumar Mishra (6 supra). The facts, in the said case are to the effect that while the delinquent conductor was on duty on a city bus, the same was checked by the Transport Inspector, who allegedly found that 11 passengers travelling from a longer distance had been issued short distance tickets. In the domestic inquiry conducted, in terms of the relevant regulations of the U.P.State Road Transport Corporation, no passenger was examined. What is of vital importance is that even at the time of effecting the check, the Transport Inspector did not record the spot statement of the passengers. The bone of contention in the said case was whether the passengers boarded the bus at the stage which the tickets reflected or at any other prior stage which required issuing of tickets of higher fare. The Transport Inspector in the inquiry has asserted that those passengers were travelling from a longer distance having boarded the bus at a previous stage; the delinquent conductor, on the other hand, denied the statement and has contended that the passengers boarded the bus only at the stage the tickets reflected. In that context their Lordships have felt that to throw light on the said controversy, examining the passengers was essential, but that was not done. On that count, the inquiry was held to have been vitiated.
In the present case, in the light of the fact that even the statement of the checking official on oath was not disturbed by the petitioner at least by a semblance of cross-examination, once the uncontested statement is taken as evidentiary proof, the question of examining further witnesses does not arise. Of equal importance is the fact that even the spot statements of those passengers was not contradicted by the petitioner, when he was asked to give a spot statement by the checking officials. As such, the ratio laid down in the Mahesh Kumar Mishra (6 supra) has no relevance to the facts of the present case.
In R.Appa Rao (2 supra), an unreported judgment of this Court, initially the Labour Court interfered with the penalty of removal passed by the Disciplinary Authority and ordered reinstatement of the workman with continuity of service, but without back wages. The Labour Court, on appreciation of the material on record, has come to a conclusion that the punishment of removal from service is disproportionate to the misconduct said to have been proved against the delinquent workman. In fact, the Labour Court has held that the delinquent was not guilty of issuing used tickets, but was merely guilty of not issuing tickets to two passengers. In the light of the Labour Court exercising its power under Section 11-A of the Act, this Court refused to interfere with those findings under Article 226 of the Constitution of India. Because merely it is possible that a different conclusion could be arrived at, it does not behove on the part of this Court to interfere with the discretion exercised by the Tribunal in judicial review, in the absence of adjudicatory vice such as perversity. It is a case more of non- interference with the discretion of a quasi-judicial authority than interfering with any perverse findings while exercising the power of judicial review. As such, this decision may not come to the rescue of the petitioner.
In Mutyala Venkateswara Rao (3 supra), another unreported judgment of this Court, the delinquent conductor was charged with the misconduct of not issuing tickets to passengers, having collected the requisite fare. When those passengers were examined during the course of inquiry, the passengers stated that though they did not purchase the tickets, they falsely deposed at the time of spot explanation that they had paid fare only to escape the threat of fine. Thus placing reliance on the retracted statements of the passengers, this Court has felt that the benefit of doubt should be given to the delinquent workman. In the present case, no such factual position is obtaining.
In K.Jogi Reddy (4 supra), the fact of the matter is that when certain passengers boarded the bus, the conductor made efforts to collect money and issue tickets to them. The passengers however told conductor that an aged passenger was seriously ill and that he should be rushed to the hospital. Accordingly, the passengers refused to buy tickets and focussed more on the deteriorating condition of the passenger. Under those conditions, to save the life of the passenger, the conductor without paying any attention to the rule of issue and start, asked the driver to rush the passenger to be provided medical aid. Under those circumstances, this Court has held that mechanical and ritualistic adherence to the process of issue and start cannot earn the judicial appreciation of the Court. Accordingly, this Court has found fault with the order of removal passed against the delinquent conductor.
In K.Suresh (5 supra), though the Disciplinary Authority initially imposed a major penalty of removal from service on the delinquent conductor, the Regional Manager, exercising his power of revision, modified the punishment and directed the reappointment of the conductor afresh as a contractual conductor. He also ordered recovery of Rs.3,000/- from the salary of the conductor on his re-engagement. Under those circumstances, this Court has held that in the first place, the Revisional Authority has exercised its discretion taking into account the gravity of the charges levelled against the conductor and further ensured that no financial loss was caused to the Corporation by imposing as penalty 100 times the loss of the revenue said to have been caused to the Corporation. Thus, it is essentially a matter of not interfering with the discretion exercised by a quasi judicial authority on the time tested principles of perversity, error on the face of record, misapplication or mis-appreciation of law.
Finally, the learned counsel for the petitioner has placed reliance on Colour-Chem Ltd. (7 supra). Indisputably the Honble Supreme Court in the said judgment has held that if any provision of a welfare legislation is capable of two constructions, one which furthers the policy and objective of the Prevention of Unfair Labour Practices Act and which is more beneficial to the employees should be preferred. At the same time, their Lordships, however, have held that if the provisions are capable of only one meaning, it has to be interpreted according to its plain words and without doing violence to the language used by the legislature. In the said case, the delinquent workmen were charged with misconduct that they were asleep, keeping the machines running, while they were on duty. Holding that the said misconduct was a major one and that it was proved, those workmen were removed from service by the management. Initially, the workmen laid challenge against the removal on the ground that the misconduct was minor and that imposing a major penalty, despite the misconduct being minor, amounted to unfair labour practice. Their Lordships have held under the fact situation of the case that there was no unfair labour practice. At any rate, their Lordships have felt that the punishment imposed against the delinquent workmen has been grossly disproportionate to the alleged misconduct, even assuming that it was a major misconduct. It is profitable to extract paragraph-12 of the judgment, which is as follows:
"However this is not the end of the matter. Looking to the nature of the charges levelled against the delinquent- respondents it has to be appreciated that all that was alleged against them was that they were found sleeping in the wee hours of the night shift almost near dawn at 3-30 a.m., having kept the machine in a running condition without seeing to it that proper raw material was inserted therein. Even on the basis that it was a major misconduct which was alleged and proved, looking to the past record of the service of the delinquents no reasonable employer could have imposed punishment of dismissal."
In Coimbatore District Central Cooperative Banks case (8 supra), four charges had been levelled against 53 workmen who persisted with the strike, while the remaining 134 workmen had accepted the settlement. An inquiry was instituted and findings were recorded that all the four charges had been proved. The Labour Court considered the grievances of the workmen, negatived all the contentions raised by them, and eventually held the enquiry to be in consonance with the principles of natural justice and that findings had been supported by evidence. Thus, the Labour Court has held that the punishment imposed on workmen of (1) stoppage of increment of 1 to 4 years with cumulative effect; and (2) non-payment of salary during the period of suspension could not be said to be harsh so as to be interfered with. Invoking the principle of proportionality, the High Court of Madras interfered with the findings of the Disciplinary Authority as were confirmed by the Labour Court. Under those circumstances, the Honble Supreme Court examined the doctrine of proportionality. In paras-17 and 18, it was observed as follows:
"So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay. With the repaid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the doctrine of proportionality.
Proportionality is a principle where the court is concerned with the process, method or manner in which the decision- maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise the elaboration of a rule of permissible priorities."
THE PRINCIPLE OF PROPORTIONALITY:
As has been extracted in Coimbatore District Central Cooperative Bank (8 supra), as recently as in 1984, the House of Lords in Council of Civil Service Union v. Minister for Civil Service , has observed as follows:
"Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under the heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call illegality, the second irrationality and the third procedural impropriety. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of proportionality ."
(emphasis supplied) When the English jurisprudence was tentative in approach to include proportionality as one of the grounds of judicial review in 1984 and only hoped that in course of time the scope of judicial review would be expanded by addition of further grounds, particularly by the possible adoption in the future of the principle of proportionality. On the other hand, the Indian industrial jurisprudence as far back as in 1965 pragmatically acknowledged the potentiality of proportionality as a mitigating factor, and put it on a firm pedestal of judicial approval. In Hind Construction & Engg. Co. Ltd. V. Workmen , their Lordships of the Honble Supreme Court have observed as follows:
"It is impossible to think that any other reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner.
The punishment imposed on the workmen was not only severe and out of proportion to the fault, but one which, in our judgment, no reasonable employer would have imposed."
Having examined the scope and content of the doctrine of proportionality, the Honble Supreme Court in Coimbatore District Central Cooperative Bank (8 supra), has spelt out the contours of its application. In para-29 of the judgment, it is observed as follows:
"From the above decisions, it is clear that our legal system also has accepted the doctrine of proportionality. The question, however, is whether in the facts and circumstances of the present case, the High Court was justified in invoking and applying the doctrine of proportionality. In our judgment, the answer must be in the negative. Normally, when disciplinary proceedings have been initiated and finding of fact has been recorded in such inquiry, it cannot be interfered with unless such finding is based on no evidence or is perverse, or is such that no reasonable man in the circumstances of the case would have reached such finding. In the present case, four charges had been levelled against the workmen. An inquiry was instituted and findings recorded that all the four charges were proved. The Labour Court considered the grievances of the workmen, negatived all the contentions raised by them, held the inquiry to be in consonance with principles of natural justice and findings supported by evidence. Keeping in view the charges proved, the Labour Court, in our opinion, rightly held that the punishment imposed on workmen could not be said to be harsh so as to interfere with it."
The proportionality test, having its origin in Droit Administratif, for many years bypassed English shores but had its echo found in a far distant land. When the English jurisprudence continued its dalliance with Wednesbury, the Indian Courts took recourse to Article 14 and gave the proposition of proportionality constitutional status by interpreting Article 14 expansively. As far back as in 1965, the Honble Supreme Court has accepted the principle of proportionality holding that any punishment which is shockingly disproportionate cannot be sustained. After many decades, in 1985 the House of Lords held that the heads under which judicial review would be exercised would be expanded and one day the proportionality may be one of the heads to be considered. Holding that any adjudication of the principle of proportionality would involve appreciation of facts as if it were a primary authority and that such a primary review would be impermissible, the English Courts have not travelled far beyond Wednesbury. In any event, with the advent of Human Rights Act, 1998, the House of Lords has adopted a position between proportionality requiring primary review and Wednesbury requiring secondary review. Insofar as the Indian jurisprudence is concerned, beginning with Hind Construction (10 supra) in 1965, later affirming its stand further in another celebrated case i.e., E.Royappa v. State of Tamil Nadu , the Supreme Court has travelled further. Having inevitably been caught between the need to have primary review under the principle of proportionality and restraint required to be maintained under judicial review, confining itself to secondary review, thus not to involve in re- appreciation of the evidence, the Courts have devised a method of applying the concept of the order being shockingly disproportionate to the administrative and quasi-judicial orders affecting the civil and constitutional rights of the citizen nothing but secondary review. Insofar as the facet of discrimination under Article 14 and fundamental freedom under Part-III of the Constitution, the Courts have permitted primary review i.e., the simple instance of proportionality without the intensifier shockingly. Concerning the secondary review, the Honble Supreme Court has reiterated the principle time and again. To cite a few of those pronouncements, it is apposite to refer to the following:
1) Union of India v. G.Gangayuthan . 2) Indian Oil Corporation v Ashok Kumar Arora . 3) U.P.State Road Transport Corporation v. Subash Chandra Sharma . 4) Apparel Export Promotion Council v. A.K.Chopra . 5) C.M.D.United Commercial Bank v. P.C.Kakkar . 6) Regional Manager, U.P.SRTC v. Hoti Lal . 7) Dev Singh v. Punjab Tourism Development Corporation . 8) Mineral Development Ltd., v State of Bihar . 9) Akbar Badruddin v. Collector of Customs .
Before putting the lid on the issue of proportionality, I may recall what is said in the beginning that jurisprudentially speaking, the Indian Courts have judicially acknowledged its existence, realised its utility, and, in fact, employed it ubiquitously beginning with 1965. Culturally, without religious overtones, it can, however, be stated that proportionality is ingrained in Indian psyche as an adjunct of fair play or treatment to a mythological proportion. To narrate, Mandavya was a sage, who is said to have been wrongly punished by the king by impaling him on a post. This occurred as a band of robbers hid their stolen goods in a corner of his hermitage when he had been in deep contemplation. As a result, he was wrongly assumed to have stolen the goods. Resultantly, the punishment of impalement was imposed. Concerning this episode in Mahabharatha, in Beyond Orientalism, the Work of Wilhelm Halbfass and its Impact on Indian and Cross-Cultural Studies, edited by Eli Franco and Karin Preisendanz (Vol.59 in the Philosophy of the Sciences and the Humanities), there is a narration of this incident: Having suffered the horrific punishment of impalement, Mandavya goes to the abode of Dharma (Yama) and censures him in the following manner:
What sin was committed by me unknowingly in expiation of which such misery was ordained to me? Yama replied that A.M. [Ani Mandavya] had fixed a blade of grass in the wings of flies [made a garland of flies], and his present misery was in retaliation for this offence. An offence howsoever small meets with a great punishment. Being asked as to when that sin was committed by him, A.M. is told that it was in his boyhood. A.M. then ordains that whatever a boy might do till he reaches twelve years from his birth will not be a sin. And inasmuch as Yama has made him ... suffer a punishment out of proportion to his offence, Yama would be borne as a human being ...
(Page 535; emphasis added) DO THE FINDINGS CALL FOR ANY INTERFERENCE:
Veering back to the facts, the record reveals that the petitioner gave a spot explanation, if it could be called one, that he was not in a proper frame of mind, and he did not know what he was doing, and requested to be excused. The petitioner did not dispute the statement of passengers on the spot. After receiving the charge sheet, the petitioner submitted his explanation dated 06.05.2002 contending that he issued correct tickets to all the passengers, who were only 39, and that five passengers showed old tickets, though they had been given correct tickets. The petitioner, pertinently, also failed to cross-examine the management witness, the checking official, having specifically opted out of cross-examining the witness.
It is to be further appreciated that the petitioner examined himself as defence witness and deposed that he had issued correct tickets to all the passengers and that at the time of check there were only 39 passengers. The fact, however, remains that indisputably there were 39 passengers with valid tickets, but the total number of passengers was 44, when the check took place. Out of those 44, five possessed used tickets. It is observed on a careful perusal of SR entries that those five tickets were issued by the petitioner himself in the previous trips.
Once the charges are held proved, since they are grave in nature, in the absence of any ameliorating factors, the petitioner can look to neither the tribunal nor this Court to come to his rescue. In fact, it is now well settled that this Court will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (vide State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya ) Further, when the charge is proved, as happened in the instant case, it is the Disciplinary Authority with whom lies the discretion to decide as to what kind of punishment is to be imposed. Of course, this discretion has to be examined objectively keeping in mind the nature and gravity of the charge. The Disciplinary Authority is to decide a particular penalty specified in the relevant Rules. A host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in the department or establishment where he works, as well as extenuating circumstances, if any exist. (vide Kendriya Vidyalaya Sangthan v. J. Hussain ).
CONCLUSION:
Under those circumstances, the removal order is proper and justifiable for the proven charge of misappropriation. It is a matter of playing fraud and causing financial loss to the public corporation.
Accordingly, this Court is constrained to dismiss, and did dismiss the Writ Petition as devoid of merit. No order as to costs. ______________________ DAMA SESHADRI NAIDU, J Date: 19.03.2014