Andhra HC (Pre-Telangana)
P. Balachandra Reddy vs Depot Manager, Andhra Pradesh State ... on 27 December, 1993
Equivalent citations: 1994(1)ALT208, [1995(70)FLR104], (1994)IILLJ481AP, (1994)IILLJ481SC
ORDER S. Parvatha Rao, J.
1. The petitioner was employed as Conductor in Andhra Pradesh state Road Transport Corporation and was working in Anantapur Depot with effect from 11-4-1978. While the petitioner was conducting but with registration No. AAZ 2735 plying on the route Karakamukkala to Anantapur on 17-1-1984, a check was made and irregularities were found to have been committed by him. Enquiry was initiated against him and he was charge-sheeted on 27-1-1984 and the following three charges were framed against him.
"1. For having failed to issue ticket to a batch of 13 passengers even after collecting the requisite fare of Rs. 16-90 from them who were travelling from Uravakonda to Sivarampeta ex-stages 12 to 9.
2. For having violated the rule issue and start.
3. For having closed the tray numbers of all denomination in the S. R., upto the stage No. 9 without completing the ticket issues referred at charge No. 1".
The petitioner submitted his explanation and after holding due enquiry, the Enquiry Officer submitted his report dated 8-3-1984 recommending the removal of the petitioner from service. On 28-3-1984 a show cause notice was issued to the petitioner to show cause why he should not be removed from service. He submitted his explanation and thereafter, he was removed from service by an order dated 19-4-1984 of the 1st respondent. The appeal preferred by him to the 2nd respondent against the said order was rejected on 28-4-1985 and so was also the review petition preferred by him to the 3rd respondent, on 24-8-1985. That gave rise to an industrial dispute between the 1st respondent and the petitioner which was referred for adjudication to the Labour Court at Anantapur i.e., the 4th respondent. The questions referred for adjudication were whether the action of the 1st respondent in removing the petitioner from service was justified; if not to what relief was the workman entitled. The said industrial dispute was numbered as I. D. No. 47 of 1987 and by order dated 12-11-1987 the Labour Court passed an award holding that the removal of the petitioner was justified and that he was not entitled for any relief. In the present Writ Petition, the petitioner questions the said award and the action of respondents 1 to 3 in removing him from service.
2. The petitioner does not question the enquiry. He contends that in the facts and circumstances of the case the punishment of removal awarded is too harsh and disproportionate to the charges proved against him.
3. It is obvious that the main charge is the first one and that turns on the question whether the petitioner in fact received the fare of Rs. 16-90 ps. from the 13 passengers who embarked at state No. 12 and to whom admittedly tickets were not issued till the check took place when stage No. 9 was reached. It is the case of the petitioner that he did not in fact receive the petitioner that he was about to collect the same and issue tickets when the check took place. According to the petitioner, at that time he was very tired as he was made to work continuously without rest because the other employees of the Corporation were participating in work to rule agitation. The bus was also overloaded and he did not notice earlier that the 13 passengers did not take tickets as they did not respond when he shouted enquiring whether there were any passengers without tickets. At the time of the check a statement of one of the 13 passengers was taken and he stated that the petitioner denied payment of money though he paid Rs. 17/- for the tickets and the petitioner's signature was obtained on the Corporation that the petitioner received Rs. 17/- on the basis of that statement of one of the 13 passengers who got into the bus at stage No. 12.
4. The Labour Court also has proceeded on the basis that charges Nos. 2 and 3 are only technical violations and therefore they are not material charges which will decide the case for the purpose of imposition of punishment of removal, and that the deciding factor is the finding on charge No. 1. In upholding the finding of the employer on charge No. 1, the Labour Court essentially relied on the spot explanation of the workman and the sport statement of one of the passengers. The Labour Court observes that his statement that he received the fare and was about to issue the tickets when the check took place conflicts with the spot statement of one of the passengers that the fare was paid at the boarding point i.e., when they got into the bus at stage No. 12 itself and that even though the bus proceeded upto stage No. 9, tickets were not issued to them. In accepting the version of the passenger, the Labour Court seems to have been persuaded by the consideration that the passenger was a third party to the transaction and that he was in independent witness. The learned Counsel for the petitioner points out that the passenger was not independent witness because he was interested in safeguarding himself because he would become liable as a ticketless passenger. The learned Counsel for the petitioner also points out that the spot explanation given by the workman categorically states at the end that he did not receive the fare though earlier he stated that he was in the process of receiving the fare and issuing the tickets when the check took place. The Labour Court also relies on the circumstance that it was an admitted case that the petitioner closed the S. R. upto stage No. 9 without completing the issue of tickets to the 13 without completing the issue of tickets to the 13 passengers who boarded the bus at stage No. 12. The learned Counsel for the petitioner points out that it was the case of the petitioner that the bus was the overload at that time and that therefore he did not initially notice that the 13 passengers in question did not take the tickets. Whatever that be, I am not take the tickets. Whatever that be, I am not inclined to enquire into the findings of the Labour Courts as regards the charges. I will proceed on the basis that all the charges were proved as held by the Labour Court.
5. The first charge, which according to the Labour Court is the material charge, is that the petitioner failed to issue tickets to a batch of 13 passengers even after collecting the requisite fare of Rs. 16-90 Ps. from them. The question is whether the punishment of removal is justified on the facts and circumstances of the case. The Labour Court proceeds to consider this aspect of the matter as follows :-
"I would like to examine as to how far the respondent is justified in imposing the capital punishment of removal from service and I would like to examine whether the workman is entitled to get any alternative punishment while invoking the Section 11(a) of the Industrial Disputes Act. On this aspect I would like to mention that any punishment should be awarded corresponding to the nature of the proved charge. In this case the workman is involved proved charges of misconduct with regard to the receiving of illegal gratification with a dishonest intention and hereby defrauded the respondent Corporation. When once the workman is involved in proved misconduct of receiving illegal gratification with a dishonest intention I consider that the proper punishment for the workman is removal from service and I do not see any reason to interfere with the findings of the same".
It will be immediately noticed that the charges do not mention anything about any illegal gratification or dishonest intention to defraud the Corporation. It is obvious that the Labour Court was under the misapprehension that the first charge related to illegal gratification and dishonest intention of defrauding the respondent-Corporation and on that basis justified the punishment of removal imposed on the petitioner. The Labour Court is clearly not right in proceeding not he erroneous basis that the charge related to illegal gratification and dishonest intention of defrauding the Corporation and in upholding on that basis the punishment of removal imposed on the petitioner.
6. It is convenient to consider at this stage the contention of the learned Counsel for the respondent-Corporation that the High Court cannot exercise the powers of the Tribunal under Section 11-A of the Act and substitute another award in he place of one made by the Tribunal. He relies on the judgment of the Supreme Court in Jitendra Singh v. Shri 976. But that was a case arising under Article 227 of the constitution and in that context the Supreme court observed that the High Court under Article 227 of the Constitution and in that context the Supreme Court observed that the High Court under Article 227 did not enjoy such power though as a superior Court it was vested with the right of superintendence. That decision was rendered by a two Judges Bench of the Supreme Court. In Workmen of Bharat Fritz Werner (P) Ltd. v. Bharat Fritz Werner (P) Ltd. 1990 I CLR 875 a three Judges Bench of the Supreme Court dealt with a case arising on a petition under Article 226 of the Constitution and held as follows :
"Moreover, in view of the provisions contained in Section 11-A of the Act, which empowers the industrial Tribunal to go into the question whether the order do discharge or dismissal passed against a workman is justified or not and permits the Tribunal to set aside the order of discharge or dismissal as the circumstances to the case may require, it was open to the High Court to consider what would be adequate punishment for the misconduct found to have been committed by these workmen and take the view that the acts of misconduct found proved against these five workmen were not such as to warrant dismissal and denial of one half of the back wages for the period of about six years was adequate punishment for the misconduct found to have been committed. We do not find any infirmity in the aforesaid view expressed by the Appellant Bench of the High Court".
This case arose on an appeal from the decision of a division bench of Karnataka High Court. The Division bench of that High Court, after holding that the report of the enquiry officer could not be said to be valid, considered the evidence and found that the 5 concerned workmen were guilty of misconduct but held that they did not deserve the extreme penalty of dismissal and directed their reinstatement with half of the back wages. However, the Supreme Court did not agree with that view of the Division bench and held as follows :-
"The misconduct that has been found established against these five workmen involves threatening the highest executive, viz., the President of Company, with dire consequences, wrongfully confining him in his room and compelling him to withdraw the notice. These acts of misconducts involve act subversive of discipline on the part of these workmen. Three of these workmen were office bearers of the Union. It cannot beside that these workmen had acted at the instigation of somebody. Taking into consideration the facts and the circumstances of the case, we are of the opinion that, keeping in view that interests of the industry, this is a case where it can be said that it is not desirable and expedient to direct reinstatement of these workmen. In our view, therefore, the direction with regard to reinstatement to these workmen cannot be sustained and in lieu of reinstatement they may be paid compensation for loss of future employment."
This case illustrates how views can differ on the quantum of punishment to be imposed, and acts and conduct which do not warrant reinstatement.
7. In J. V. Subbaiah v. Labour Court, 1991 (1) An W. R. 610 a learned Judge of this Court (M. N. Rao, J.) held as follows :-
"It is now well settled that, in exercise of its powers of judicial review under Article 226 of the Constitution of India, this Court, if facts compel, can pass appropriate orders under Section 11-A of the industrial Disputes Act instead of remitting the matter to the Industrial Court. (See Gujarat Steel Tubes Ltd. v. Mazdoor Sabha, ) ".
The learned Judge further observed that the aspect of punishment being disproportionate to the gravity of charge has not received due consideration by the Labour Court in that case and that the passing reference made by the Labour court that the punishment was justified did not amount to consideration of the question of proportionality of the punishment imposed. The petitioner in that case was a conductor for 26 years and the allegation levelled against him was that he failed to account for a sum of Rs. 3/- and that he had undergone enough suffering and misery for 15 years for which his matter was pending and directed reinstatement into service without back wages treating the petitioner before him as a fresh recruit for the purpose of salary.
8. In T. Ali Akbar v. Labour Court, also the same learned Judge held as follows :-
"Under Section 11-A of the Industrial Disputes Act, it is incumbent on the part of the Industrial Court to go into the question of the quantum of punishment imposed. If the punishment awarded was disproportionate to the charges held proved, the Industrial Court, would, in exercise of its discretion, alter the punishment. In the present case, the Industrial Court held the punishment of removal is justified, in the circumstances of the case. This Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, has power to modify or alter the punishment imposed by the Industrial Court (Vide Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha, ) ".
On the facts of that case, the learned Judge interfered with the punishment of removal imposed on the petitioner and directed reinstatement of the petitioner into service afresh in the initial time scale of pay without any claim to back wages/arrears of salary and allowances holding that the said punishment was proportionate to the gravity of the charges held proved viz., the petitioner did not collect the fares and did not issue tickets to 71 passengers as there were 156 passengers some of whom were travelling on the top of the vehicle.
9. In view of these decisions the question raised by the learned Counsel for the respondent as regards the powers of the High Court is not longer res integra.
10. Now the main question that remains to be considered is whether the punishment of removal imposed on the petitioner is excessive on the facts and circumstances of the case. The question of judging the punishment to be imposed is not always an easy matter as is seen Workmen of Bharat Fritz Werner (P) Ltd. case (supra). It depends upon the circumstances of each case and the perceptions of the Judges. But there is uniformity in the view that in cases where the charge is that the conductor failed to collect fares and issue tickets, the punishment of removal is not warranted.
11. A Division Bench of this Court in B. Babu v. The Industrial Tribunal-cum-Labour Court, Warangal & Anr. Order in Writ Appeal No. 687 of 1992, dated 20-10-1992, interfered with the award of the Labour Court which held that the employer was justified in removing the employee from service. That Writ Appeal was preferred against the order of the learned Single Judge in Writ Petition No. 16859 of 1987 dated 12-4-1990 refusing to set aside the said award and dismissing that writ petition. In that case also the employee was a conductor and the employer was the APSRTC. There the charge proved was that the conductor failed to collect fares and issued tickets to eight passengers found alighting without tickets. There the charge proved was that the conductor failed to collect fares and issue tickets to eight passengers found alighting without tickets. There also the conductor closed the S. R. as if he issued tickets to all passengers and there were none to be issued tickets. The Labour Court held that the contention of the Corporation that the Conductor wanted to collect the fare of Re. 0.65 ps. from each of the passengers at the time of alighting and appropriate the same could be accepted. The Labour Court observed that the conductor was found guilty of and re-appointed as a fresh candidate and inspite of that he resorted to that practice within a few moths again and on that basis held that he was rightly removed from service. The learned Single Judge observed that both in the domestic enquiry and also by the Labour Court the charges framed against the conductor were found to have been established beyond doubt and that this Court could not reassess the evidence and reapprise a finding of fact under Article 226 of the constitution of India and that the conductor was disentitled to the relief of reinstatement. The Division Bench observed as follows :-
"None of the charges refers to misappropriation of the fares collected. Therefore, the evidence regarding collection of fare is totally irrelevant in the present case. All that is established is that he is negligent in not issuing tickets to passengers. When he bus was having about 65 passengers, for such a negligence on his part, the punishment of removal from service is too severed. Consequently, Section 11-A of the Industrial disputes act directly gets attracted and we are inclined to invoke it in favour of the appellant................ It is true that the past record of the appellant-original petitioner is bad. Therefore, in our view, interests of justice would be served if the second respondent-Corporation is directed to appoint the appellant as a fresh conductor. It would not entitle The appellant for any back wages or for continuity of service. He starts as a fresher. We hope and trust that the appellant will be more careful in future and will not give any occasion for complaint by the management against him, while working as a freshly recruited conductor".
and allowed the writ appeal to that limited extent.
12. In R. Raja Reddy v. Depot Manager, APSRTC, Karimnagar & Ors. Orders in writ Petition No. 20028 of 1987, dated 9-12-1991 the main charge was that the conductor failed to collect the fares and issue tickets to the passengers at various stages. That charge was proved and the conductor was removed from service. The Labour Court held that he was rightly removed from service. That was questioned in the writ petition. The learned Judge held that in so far as the punishment was concerned, the Labour Court was swayed away by assuming that the conductor wanted to misappropriate after collecting the fares from the passengers though that did not form part of the charge and observed as follows :-
"Under similar circumstances, this court in Writ Appeal No. 1444 of 1987 reduced the penalty imposed in the factual circumstances of that case. Similarly, this Court in Writ Petition No. 17163 of 1987 dated 18-4-1991 also reduced the punishment under similar circumstances. In the absence of any charge that the petitioner entertained an evil idea of misappropriating the fares after collecting them from the passengers alighting from the bus, the imposition of extreme penalty is not warranted in this case. This is not a case where the petitioner collected the fares and failed to account."
Writ Appeal No. 179 of 1992 preferred against the said order of the learned Single Judge was dismissed by order dated 5-3-1992.
13. In V. G. Reddy v. The Chairman, Industrial Tribunal-cum-Labour Court at Warangal & Anr. Order in Writ Appeal No. 213 of 1992, dated 23-3-1992, also a Division Bench of this Court modified the punishment and set aside the order of removal even though the learned single Judge from whose judgment the Writ Appeal was preferred, refused to interfere after holding that the Labour Court found that the domestic enquiry was validly conducted and that its award did not suffer from any error apparent on its face, and dismissed the writ petition. That was also a case of a conductor under the employee of the A. P. S. R. T. C. who was removed from service on charges which were held to be proved, two of which were that he "collected the fare of Rs. 4-25 ps. each from eleven Individual passengers and failed to issue tickets to them" and that he "collected the fare of Rs. 3-25 ps. each from 12 individual passengers and failed to issue tickets to them". The Labour Court found that the conductor collected money from the passengers and did not issue tickets to them with an ulterior motive and that he was "guilty of attempt to misappropriate the funds of the employer" and that he did not deserve any mercy and that the Corporation was justified in removing him from service. The Division Bench held as follows :-
"Hearing Counsel on either side and considering all such facts and circumstances to which our attention is invited, we find that though the charges against the writ petitioner-appellant herein have been held proved and though the finding in that behalf does not warrant interference in writ jurisdiction, the punishment of removal from service of the charge of attempt to misappropriate was not justified. it was too harsh and disproportionate. We are, in the circumstances, inclined to modify the punishment and set aside the order or removal............."
and directed that the conductor in that case should be re-employed afresh without any back wages and attendant benefits or any continuity of service. It has to be noticed that in this case the two charges against the conductor were not that he failed to collect the fares as in the cases of B. Babu (supra) and R. Raja Reddy (supra), but that he collected the fares and failed to issue tickets and both the charges were proved. Even then, the Division Bench of this Court held that the punishment of removal was not justified.
14. M. V. Ramana v. The Labour Court, Anantapur & Anr. Judgment in Writ Appeal No. 686 of 1982, dated 28-10-1992, is a case in contrast which illustrates the circumstances in which the punishment of removal can be justified. In that case, a Division Bench of this Court, while dismissing the writ appeal at the admission stage, held :
"In this case, neither the Labour Court nor the learned single Judge though it fit to exercise powers under Section 11-A of the Industrial Disputes Act, when the appellant-conductor was found to be guilty of having refused (re-issued?) the tickets and collected money on such re-issue. Whether the amount is small or large is irrelevant. When such a misconduct of misappropriation of amount is found to be established and if the discretion under Section 11-A of the Act is not exercised, no case would arise for our interference'.
Here the misappropriation was established because the Conductor was found to have re-issued already issued tickets (old tickets) after collecting the money.
15. In the present case, as already observed by me above, I find that the Labour Court did not correctly approach the question of proportionality under Section 11-A of the Act in the manner expected of it. In J. V. Subbaiah's case (supra) it has been held that a passing reference to the gravity of misconduct "does not conform to the statutory mandate embodied in Section 11-A" of the Act. In C. V. Ramulu v. Labour Court, 1984 (2) APLJ 98, a Division Bench of this Court held :-
"Under Section 11-A introduced by the amending Act of 1971, the Tribunal is vested with the power to alter the punishment if it is satisfied that it is excessive. Therefore, the Tribunal has to necessarily address itself to the question whether the punishment imposed is excessive or otherwise. From the order of the Labour Court, we find that there is no satisfactory application of mind on this aspect..... We think that the application of mind must be reflected in the judgment by specific reference to the question of punishment. The Tribunal is under a duty to consider whether the punishment imposed is proportionate to the charges levelled or not".
The Labour Court, in the present case, was carried away by the mistaken impression that the charges related to illegal gratification and dishonest intention to defraud the respondent-Corporation even though the charges framed against the petitioner did not contain any such allegations. There were not findings against the petitioner in that regard. Therefore, I find that on this aspect of the matter the conclusion of the labour Court is vitiated by errors apparent on the face of the record. I am of the view that for the charges proved the punishment of removal is too harsh. In V. G. Reddy's case (supra) referred to above, there were two charges against the conductor that he collected fares from 23 passengers in all and the amount found to have been collected was much larger than in the present case; even then a Division bench of this Court held that the punishment to removal was not justified. Admittedly the petitioner was in service of the respondent-corporation for April, 1978. After he was removed from service on 19-4-1984, he has not been in service till now i.e., for nearly 10 years. Though it is stated in the counter affidavit in the present writ petition that in the past he was censured 4 times and that he was suspended once and that his increments were deferred once for having involved in similar acts of misconduct, no mention was made of those in the rejoinder filed on behalf of the Management before the Labour Court. The impugned order of the Labour Court in I. D. No. 47 of 1987 also does not advert to any or those.
16. On the facts and circumstances of the present case and in the light of the decided cases referred to above, I am satisfied that the punishment of removal from service imposed on the petitioner has to be set aside. It would suffice if the petitioner is directed to be reinstated as a fresh recruit. Therefore, the punishment imposed in the order of the 4th respondent in I. D. No. 47 of 1987 dated 12-11-1987 is set aside and respondent 1 to 3 are directed to reinstate the petitioner into service as a fresh recruit without back wages and without continuity of service or any attendant benefits, within two weeks from the date of receipt of this order.
17. The writ petition is accordingly allowed to the extent indicted above. No costs.