Andhra HC (Pre-Telangana)
A.V.Swamy vs The A.P.S.R.T.C, Rep. By Its Managing ... on 20 March, 2014
Author: Dama Seshadri Naidu
Bench: Dama Seshadri Naidu
HONBLE SRI JUSTICE DAMA SESHADRI NAIDU W.P.NO.1082 OF 2010 20-03-2014. A.V.SWAMY..PETITIONER The A.P.S.R.T.C, rep. by its Managing Director and two others ..RESPONDENTS Counsel for the petitioner: Sri S.M.Subhan Counsel for the respondents : Smt K. Salara Reddy. <Gist: >Head Note: ?CITATIONS: NIL. HONOURABLE SRI JUSTICE DAMA SESHADRI NAIDU WRIT PETITION NOs.1082 of 2010 ORDER:
The present Writ Petition is filed questioning the Award dated 12.10.2009 in I.D.No.41 of 2008 passed by the 3rd respondent/Labour Court, which affirmed the Order of Removal dated 20.10.2006 passed by the Disciplinary Authority of the first respondent Corporation ( A.P.S.R.T.C).
The facts in brief are that the petitioner initially was appointed a conductor in the year 1987 and continued to discharge his functions as such. Later, on the allegation of cash and ticket irregularities, after conducting a departmental inquiry, the Corporation removed the petitioner from service through Proceedings dt. 20.10.2006. Having been unsuccessful in the intra-departmental appeal and also revision, the petitioner eventually approached the 3rd respondent-Labour Court raising an industrial dispute in I.D.No.41 of 2008. Through an Award dated 12.10.2009, the Labour Court rejected the contentions of the petitioner workman and confirmed the order of removal passed by the Corporation. Aggrieved thereby, the petitioner carried the matter to this Court through the present Writ Petition.
Sri S.M.Subhan, the learned counsel for the petitioner, has contended that the allegation that the petitioner had failed to issue a ticket to a passenger was not properly proved by the Corporation. Despite the same, the Disciplinary Authority, in a pre-determined manner, inflicted the major punishment of removal from service through Order dated 20.10.2006. He has contended that when the matter was taken before the Labour Court, despite the expansive scope under Section 11-A of the Industrial Disputes Act (the Act for brevity), it mechanically confirmed the findings of the Disciplinary Authority and refused to interfere. The learned counsel has laid much stress on Circular No.49/80 dated 10.12.1980 said to have been issued by the respondent Corporation enumerating the guidelines to be followed for the imposition of the punishments. The learned counsel has contended that in the said Circular, the offences relating to cash and ticket irregularities have been classified as A, B, C and D. The allegation the petitioner has faced falls under D Category. Elaborating on the said submission, the learned counsel has further submitted that in terms of D-Category, the maximum punishment that could be imposed is deferment of increment by one stage with cumulative effect. The learned counsel has contended that the punishment meted out to the petitioner is shockingly disproportionate to the alleged misconduct, the petitioner has been charged with.
According to the learned counsel, the Labour Court has failed to appreciate the fact that the Disciplinary Authority has imposed the punishment of removal on the self-serving evidence of the checking officials, rather than on any other independent evidence or material of unimpeachable nature. The learned counsel has contended that during the course of departmental inquiry, the Corporation has not examined the passenger, who is alleged not to have been issued the ticket despite the petitioners collecting the requisite fare from him. The learned counsel has also stated that the check was effected before the bus could reach stage No.23 proceeding from stage No.22. In other words, as the petitioner was about to issue the ticket, within one stage a check was effected and later despite the petitioners specific request to the checking officials to check the cash balance with the petitioner, the TTIs refused to do it. On the contrary, those officials, it is contended, have forced the petitioner to close the S.R. Accordingly, the learned counsel has submitted that there is no substance in the allegation on the part of the Corporation that after collecting the fare, the petitioner closed the S.R without issuing the ticket.
Per contra, the learned Standing Counsel for the respondent Corporation has submitted that the disciplinary proceedings have been held in accordance with law and the petitioner has been given every opportunity to defend himself in the inquiry. When the spot statements were obtained from the passengers, the petitioner endorsed on those statements without questioning the correctness of those statements. Addressing the specific plea raised by the learned counsel for the petitioner that despite the request made by the petitioner, the checking officials did not check the cash balance with the petitioner, the learned Standing Counsel has stated that it is only an after thought on the part of the petitioner, who took the said plea for the first time before the Labour Court. Dilating on the said submission, the learned Standing Counsel has stated that in the explanation submitted by the petitioner to the show cause notice or subsequently answering the final show cause notice, which was issued proposing to remove the petitioner from service, the petitioner has not taken any such plea. The learned Standing Counsel has vehemently contested the statement that the petitioner was forced by the checking officials to close the S.R. Denying the said allegation, the learned Standing Counsel has stated that nothing prevented the petitioner to raise an issue during the course of departmental inquiry, more particularly confronting the checking officials, who were examined during the course of departmental inquiry, with any such allegation. The petitioner has never raised any objection with regard to the manner in which the departmental enquiry was conducted. Once the departmental enquiry is held valid, contended the learned Standing Counsel, the Labour Court, as well as this Court, would not interfere with the findings of fact as well as quantum of punishment, unless the findings in the enquiry are held to be perverse or the quantum of punishment is shockingly disproportionate. Thus, supporting the NIL Award, the learned Standing Counsel has stated that since none of these elements has been present, the Labour Court has rightly refused to interfere with the punishment imposed by the Disciplinary Authority. Accordingly, the learned Standing Counsel has urged this Court to dismiss the Writ Petition.
To appreciate the scope of the Disciplinary Proceedings and the eventual punishment meted out to the petitioner, it is relevant to examine the issues that have been framed against the petitioner. The charges are as follows:
For having failed to issue ticket to a passenger even after collecting the fare which constitutes misconduct under Reg.28(xxxii) of A.P.S.R.T.C Employees (conduct) Reg., 1963.
For having failed to issue ticket to a passenger out of a batch of two passengers who were found travelling from Chintoor stage No.22 to Bhadrachalam stage No.23 even though you have already collected Rs.60/- from them at their boarding point itself (@Rs.30/- each), you have issued only one ticket bearing No.340/905441 of Rs.30/- while you were conducting the bus No.6459 on route Bhadrachalam at Sarivela about 05.30 hours on 23.02.2006 which shows you have defrauded the legitimate revenues of the Corporation and therefore, tantamount to misconduct under Reg.No.28 (vi.a) and (x) of APSRTC Employees (conduct) Regulations, 1963.
For having closed tray numbers of all denominations in the SR upto stage No.23 without completing the above ticket issue which comes under misconduct vide Reg.No.28 (xxxii) of APSRTC Employees(conduct) Regulations, 1963.
From the above charges, it is evident that on 23.02.2006, when the bus conducted by the petitioner was proceeding from Chittor to Bhadrachalam, soon after crossing the stage No.22 at Sarivela, a check was effected by the officials of the respondent Corporation. During the search, it emerged that from two of the passengers, who were found travelling from stage 22 to 25, an amount of Rs.60/- was collected by the petitioner at the boarding point itself ( Rs.30/- each). The petitioner is said to have issued only one ticket and subsequently closed the S.R. Accordingly, a charge was made against the petitioner for having closed tray numbers of all denominations in the SR up to stage No.23 without issuing a ticket to one of the passengers even after collecting the requisite fare. It is, in fact, a major misconduct, in terms of Regulation No.28 (xxxii) of A.P.S.R.T.C Employees (Conduct) Regulations, 1963.
It further emerges that from two passengers, spot statements were obtained by the checking officials.
The petitioner contended before the Labour Court that only one passenger boarded the bus at stage No.22, the said passenger deliberately deceived the petitioner and reported to him that he had already purchased the ticket. It is maintained by the petitioner that when the check was effected, the said passenger, however, in fear of penal consequences falsely told the checking officials that despite his paying the requisite fare, he was not given ticket by the petitioner. This statement was disbelieved both by the Enquiry Officer and also by the Labour Court. The Labour Court has observed that the petitioner has failed to raise any objection when the spot statements were obtained from the passengers, and that, in fact, he attested them. Accordingly, the Labour Court has concluded that having not disputed the statement of the passengers when they were obtained, the petitioner could not further raise any objection about the veracity of the statements.
Undeniably, the spot statements of the passengers were recorded in the petitioners presence. Indeed, the petitioner did attest the said statements. It is, however, not correct to say that having attested the said statements given by the passengers, the petitioner is estopped from controverting the veracity of the statements issued by the passengers. The attesting of the statements of the passengers by the conductor, if at all, only amounts to an acknowledgement of the fact that those statements were recorded in his presence. In any event, the contents of those statements do not bind the delinquent conductor simply on the premise that he attested them. Accordingly, the observation of the Labour Court that the petitioner did not record his objection on Ex.M.3 (the passengers statements) does not pass the judicial muster.
The petitioner has also taken the plea that though he asked the TTIs to count the cash in his bag to find out whether the petitioner actually collected any excess amount without issuing any ticket, but the said officials refused to do so. On this point, the Labour Court has observed that the petitioner has failed to raise any objection on the said issue. It is further held that only in the course of Disciplinary Proceedings, the petitioner took the said plea by filing his Written Statement (Ex.M.9), dt. 03.04.2006, i.e., about 2 months after the spot inspection. Given the expansive scope of 11-A of the Act, this observation on the part of the Labour Court cannot be countenanced. Notwithstanding the fact that the Petitioner raised the objection during the course of departmental inquiry and that his objection was very much available by the time the inquiry took place, inexplicably, the Labour Court observes that it should have been raised on the very spot when the check was effected. It does not lie in the realm of conjecture if one has to visualise the state of mind of the delinquent workman- conductor when the check is effected and when the officials serve on him the statement of imputations on the spot. Without exaggerating, it could be said that the delinquent workman would be overwhelmed and would be in a state of confusion.
Even on merits, I am inclined to accept the contentions that the checking officials ought to have checked the cash balance with the petitioner, even in the absence of any such plea raised by the petitioner. Had the checking officials checked the cash balance with the petitioner, the issue of the petitioners collecting requisite fare and not issuing the ticket would have been clinchingly concluded.
The Labour Court has also further observed that it is not the evidence before the domestic inquiry, but the material on record that has to be considered. I do not, however, see any distinction, much less contradiction in evidence and material on record. The spot statements of the passengers cannot be elevated to be placed on the pedestal of inviolability, as was done by the Labour Court. The delinquent workman is always at liberty to contest the every statement made by either the passengers or by the officials of the Corporation. Though the learned counsel for the petitioner has laid much emphasis on the fact that passengers who gave the statements were not examined during the course of domestic inquiry, there cannot be any universal principle established that in each and every departmental inquiry, the passengers from whom the spot statements were obtained should be examined. It is, however, entirely a different thing if the findings during the course of disciplinary enquiry are entirely based on those statements of the passengers without there being any other material to bring home the misconduct of the delinquent workman. In other words, the spot statements made by the passengers, in the absence of their examination in the domestic inquiry, could at best be used as corroborative evidence, but not sole evidence to establish the guilt of the delinquent workman. In this instance, the checking officials i.e., TTIs, have deposed that the petitioner collected the fare from the passenger but did not issue the ticket. With equal vigour, the petitioner in his defence denied it. It is not the case of the Corporation that the petitioner has admitted his lapses during spot check and later retracted it. Neither can we find any tell tale signs of the misconduct of the workman left on the record, which are patent without even the aid of passenger statements. Though the allegation on the part of the petitioner that he was forced by the checking officials to close the S.R was rightly disbelieved by the authorities without any further material on record, the contention of the petitioner that the passenger himself did not take the ticket but only stated when the checking was effected that he paid the fare for which no ticket was given, however, could not be brushed aside.
Insofar as the Charge that the petitioner closed the S.R before reaching the stage No.23, despite one passenger remaining without ticket is a misconduct requires to be examined in accordance with the regulations of the Corporation. In the end, it may be held that the issue that petitioner collected Rs.30/- from the passenger but did not issue the ticket could not be established by the Corporation. The Charge to the extent that he closed the S.R without ensuring that all passengers had tickets of proper denomination with them is indeed a major misconduct.
Accordingly in the facts and circumstances, this Court is of the opinion that the punishment imposed on the petitioner by way of removal from service is shockingly disproportionate to the charge of closing the S.R. prematurely and thus requires to be interfered with by way of modification of the punishment imposed on the petitioner.
To subserve the interest of justice, the order of removal is modified as follows:
The petitioner shall be reinstated into service with continuity of service and attendant benefits, but without back wages. There shall be stoppage of two annual increments with cumulative effect.
Accordingly, the Writ Petition is disposed of. No order as to costs. The miscellaneous petitions, if any, pending shall stand closed.
_________________________ DAMA SESHADRI NAIDU, J Date: 20 .03.2014