Telangana High Court
A.Jaganmohan Rao, Warangal District. vs M.D. Apsrtc, Hyderabad And 2 Others on 4 October, 2023
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 22861 OF 2011
ORDER:
Award dated 30.07.2010 in I.D.No. 62 of 2008 on the file of the Industrial Tribunal-cum-Labour Court, Warangal is called in question in this Writ Petition. A consequent direction is also sought to the respondent Corporation to reinstate petitioner into service with continuity of service, all attendant benefits and backwages.
2. Petitioner joined the services of the respondent Corporation on 01.04.1987 as Conductor through due process of selection. While so, on 07.01.2007, he requested to grant leave as he was suffering from fever, however, due to dearth of conductors, he was forced to be on duty. Accordingly, he was conducting the bus from Hanamkonda to Bhoopalpally on that day. Then, a check was conducted and he was charged on the allegations of violation of the principle 'issue and start', cash and ticket irregularities and recycling of tickets. It is the case of petitioner that at that time, he was issuing tickets as there were several request stops between Hanamkonda stage No.1 and Arepally stage No.2 and passengers were waving their hands and boarding into the bus. At the time of check, passengers with fear of fine, had shown old tickets. The 2 checking officials obtained his attestation on the passengers' statement under threat of insubordination. Further they have not allowed him to write spot explanation elaborately. The 2nd respondent Depot Manager without considering all these facts placed him under suspension and issued charge sheet dated 20.01.2007. Domestic enquiry was conducted, however, the Enquiry Officer without verifying the facts and circumstances simply concluded the enquiry holding petitioner guilty of the charges. Based on that, he was removed from service illegally on 10.09.2007. Both Appeal and Review Petitions were rejected. Aggrieved thereby, the subject Dispute was raised the Labour Court. The said Dispute was dismissed vide Award impugned which triggered petitioner to come before this Court.
3. Per contra, case of the Corporation, as per the counter, is that:
Petitioner did not maintain clean record all through his service, hence, he was inflicted with punishments like censured-eight times, increment deferred - 3 times, suspension - two times, removed from service - one time. It is denied that petitioner was forced to proceed on line due to shortage of conductors though he was suffering from fever. On the fateful day, while petitioner was conducting the bus, some serious cash and 3 ticket irregularities of re-issuing the used tickets was detected and he was served with charge memo. Based on the check report; petitioner was placed under suspension in the public interest and a charge sheet was issued on 20.01.2007 with four charges. Not satisfied with the reply submitted by him, the 2nd respondent ordered domestic enquiry. The Enquiry Officer issued notices to him to attend the enquiry on 23.02.2007, 09.03.2007, 22.03.2007 and 31.03.2007. Having acknowledged all the notices, he failed to attend the enquiry. Consequently, an ex parte enquiry date was fixed on 08.05.2007. Petitioner requested to provide ten days' time and attended the enquiry on 25.05.2007. He cross-examined one of the checking officials Sri V. Mallaiah, TTI and he satisfied with the proceedings conducted on that day. Petitioner had to produce witnesses on 08.06.2007 but failed to do so. However, keeping in view the principles of natural justice another opportunity was given to defend his case. Even on 29.06.2007 also, he failed to produce witnesses, hence, there was no option left with the Enquiry Officer except to submit his findings /report (ex parte) by taking into account the available documentary evidence viz. passengers statement, explanation to the charge memo and charge sheet and attestations made by petitioner at spot including the statement TTI. Sri V. Malliah in the domestic enquiry in which petitioner also participated and availed the opportunity by way of 4 cross-examining him. Having considered the enquiry report, he was removed from service by order dated 10.09.2007. According to the Corporation, the claim of petitioner that he was issuing tickets at the time of check is false and it is only an after-thought on his part to escape from the charges. A check took place at stage No.2 i.e. Arepally, by which time he should have completed ticket- issuing process and see that nobody is left without. It is reported in the check report and charge memo by the TTIs. that all the passengers in question had boarded the bus at Hanamkonda at stage No.1 and bound for Parkal i.e. stage No.8, hence, the question of attending the passengers at the time of check does not arise at all as claimed by him. Had it been the case, petitioner would not have acknowledged and singed the check documents as well as passenger statements as having been recorded and certified correctly. Petitioner participated only in one of the sittings out of 9 though opportunity was given to him to appear before the Enquiry Officer, which clearly shows that he has nothing to offer in his defence. It is stated that the misconduct committed by petitioner is of serious in nature, therefore, punishment of removal from service is in conformity with the gravity of the charges.
It is stated that Corporation is a public utility service and the very appointment of petitioner was to abide by the mandatory rules and regulations. The mandatory rules stipulate 5 that petitioner should complete issuance of tickets correctly at the boarding point itself and then move the bus for further journey and to close the S.R. before arrival of next fare stage. But the petitioner herein violated the same by moving the bus without completing the formalities and reached the next stage without ensuring the issue of valid and correct tickets to the passengers on board.
4. Learned counsel for petitioner Sri M. Kotaiah mainly contends that when the checking officials entered the bus, his client was in the process of issuing tickets; by noticing the officials, passengers took undue advantage and shown old tickets to avoid complications though they did not purchase tickets; he therefore, requested the checking officials to verify the cash to know the genuine facts, but the checking officials believed the version of passengers and refused to verify the cash; Statistical Return was not closed at stage No.2 in order to complete the issuance of tickets; he protested before the checking officials, but they hastily necked him out from the service and submitted false report without considering true facts. According to the learned counsel, enquiry was not conducted in conformity with the Regulations, hence, requests to consider the case of petitioner sympathetically.
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5. Learned Standing Counsel, on the other hand, while reiterating the averments in the counter-affidavit submits that Labour Court is the last Court of fact, it considered in detail the material available before it and passed a well-reasoned Award which does not warrant interference. He emphasizes that there is no requirement of checking cash with the conductor, when there is adequate evidence which sufficiently established the facts in issue, non-verification of bus cash by the checking officials does not make much difference. He places reliance on the order dated 01.10.2018 in Writ Petition No. 15528 of 2007 passed by the erstwhile High Court of Andhra Pradesh.
6. In this case, the Corporation framed four charges however, gist of which is there is violation of the rule 'issue and start' and tickets were recycled. As regards violation of rule 'issue and start', case of Corporation is that bus started at Hanamkonda Stage No.1 and proceeding to Parkal Stage No.8, at Stage No.2, the checking officials entered into the bus and found out of 35 passengers, five were with invalid tickets and S.R. was not closed at Stage No.2. Petitioner took the plea that some of the passengers boarded the bus at Mulug X road and Ayyappa Swamy Temple and he was in the process of issuing tickets, meanwhile, check took place. It is to be seen on the bottom of every S.R., there are printed instructions 'start the bus after issuing tickets'. Though petitioner 7 took the defence that he did not collect the amount and did not issue tickets and the passengers might have collected the invalid tickets from their relatives and shown the same to the checking officials itself shows that he had not completed issue of tickets at stage No.1 and non-closure of S.R. till the bus reached Stage No.2. He ought to have issued tickets at the outskirts of Hanamkonda Town and started the bus. According to the petitioner himself, the checking officials boarded the bus at Stage No.2 which means that he failed to close the S.R. at Stage No.2. Hence, the finding recorded by the Labour Court on the said charge cannot be faulted.
7. Insofar as the charge that tickets were recycled, during the check, the passengers shown tickets bearing Nos. 061/350046 to 048 of Rs.14/- denomination and 061/350057 to 058 of Rs. 14/- denomination who boarded the bus at Hanamkonda Stage No.1 bound for Parkal Stage No.8 which were issued in the earlier trip between Bhupalpally and Parkal and from Parkal to Hanamkonda. The passengers stated that they paid Rs. 50/- each batch to the conductor and the said tickets were handed over to them. The defence put-forth by petitioner in the explanation is that he did not issue the said tickets in that trip and there is every possibility of collecting the invalid tickets by the passengers from their relatives who travelled in the earlier trips 8 and same were shown to the checking officials. The statement of one of the checking officials Sri V. Mallaiah in his cross- examination deposed that passengers in the bus forced them to move the bus as such they travelled in the same bus to Parkal where new S.R. was given. One of the passengers by name G. Sravanthi reveals that she along with two others boarded the bus at Hanamkonda, they gave Rs.50/- to the conductor who issued tickets with Sl.Nos. 061/350046, 047, 048, when the checking official demanded tickets, they handed them over to officials. The joint statement of Ch. Vani and Ch. Rajyalakshmi is that they boarded the bus at Hanamkonda bound for Parkal and they gave Rs.50/- to the conductor, who issued tickets with Sl.Nos. 961/350057 and 061/350058 and the same were handed over to the checking officials on demand. The said two statements were attested by the petitioner as service conductor and his explanation also shows that the said five passengers boarded the bus at Hanamkonda. The passengers are rustic and they may not have idea to collect old tickets from their relatives to travel in the next trip in the same bus. Further, as per the entries in the SR, the invalid tickets were already issued by petitioner in the earlier trip while coming from Bhupalapally to Parkal and Parkal to Hanamkonda. Hence, the contention of learned counsel that petitioner did not issue tickets cannot be countenanced. This 9 Court therefore, is of the opinion that Labour Court had elaborately discussed the material on record and came to the conclusion which cannot be held as perverse.
8. With regard to the submission that Corporation had not followed the procedure, learned counsel for petitioner submits that checking official did not count cash in spite of request made by his client. A perusal of statement of checking official V. Malliah before the Enquiry Officer shows that he denied in the cross- examination that petitioner demanded to check the cash. Petitioner attested the statement of disputed passengers at the spot, in those circumstances, counting cash in the cash bag does not arise. The Labour Court relied on the judgment reported in North West Karnataka Road Transport Corporation v. H.H. Pujar (2005-III LLJ 629), wherein it is held that 'non-examination of ticket-less passengers and non-checking of cash bag is not a ground for setting aside the dismissal order and strict rules of evidence is not applicable when the conductor's statement and record itself established that tickets were issued by the conductor. When evidence, statements and entries in the S.R. are very clear that disputed invalid tickets were issued by petitioner himself in the earlier trip and the same were reissued to the passengers in the next trip, the Labour Court has rightly come to the conclusion that findings of the Enquiry Officer are not liable to be interfered. 10 Moreover, in the counter, respondent Corporation stated that petitioner did not respond to the notices sent by them, hence, keeping in view the principles of natural justice, another opportunity was given to defend his case. Even on 29.06.2007 also, he failed to produce witnesses. As there was no option left with the Enquiry Officer except to submit his findings /report (ex parte) , taking into account the available documentary evidence viz. passengers statement, explanation to the charge memo and charge sheet and attestations made by petitioner at spot including the statement TTI. Sri V. Malliah in the domestic enquiry in which petitioner also participated and availed the opportunity by way of cross-examining him, he was removed from service by order dated 10.09.2007. Therefore, it cannot be said that Corporation has not followed the prescribed procedure while conducting enquiry.
9. In Union of India v. P. Gunasekaran 1, the Hon'ble Apex Court dealt with the scope of interference of this Court under Articles 226 and 227 of the Constitution of India and held as under:
" In disciplinary proceedings High Court is not and cannot act as a second court of first appeal and that the High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence and that the High Court can only see whether:
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(2015) 2 SCC 610 11
(a) The enquiry is held by a competent authority;
(b) The enquiry is held according to the procedure prescribed in that behalf;
(c) There is violation of the principles of natural justice in conducting the proceedings;
(d) The authorities have disabled themselves from reaching a fair conclusion by some consideration extraneous to the evidence and merits of the case;
(e) The authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) The conclusion on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) The disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) The disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) The finding of fact is based on no evidence."
In Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union 2, the Hon'ble Apex Court held that it is impermissible for the High Court in exercise of writ jurisdiction to liberally re-appreciate the evidence and draw conclusions of its own on pure questions of fact, as the High Court does not exercise any appellate jurisdiction over the awards passed by a Tribunal/Labour Court, presided over by a judicial officer. The Supreme Court further held that the findings of fact recorded by a fact-finding authority duly constituted for the purpose and which ordinarily should be considered to have become final cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ Court.
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AIR 2000 SC 1508 12
10. In the light of the reasons assigned supra and the settled legal position, this Court finds that the Award of the Tribunal does not suffer from any impunity. The Writ Petition is devoid of merit and is liable to be dismissed.
11. The Writ Petition is accordingly, dismissed. No costs.
12. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 04th October 2023 ksld