Andhra HC (Pre-Telangana)
N.C.S. Raj vs Chairman, Industrial Tribunal Cum ... on 1 January, 1800
Equivalent citations: 1992(1)ALT323
ORDER Iyyapu Panduranga Rao, J.
1. This writ petition is directed for the issue of certiorari to quash the proceedings pertaining to I.D. No. 299 of 1987 of the first respondent.
2. The petitioner has been working as a driver in the services of Andhra Pradesh State Road Transport Corporation (herein after referred to as 'the Corporation'). On 15-5-1985 the, petitioner was conducting the bus bearing No. AAZ 5682 plying between Godavarikhani and Hyderabad via Karimnagar. Between stages 11 and 13 the bus was checked and wherein it was revealed that out of 75 passengers in the bus, 25 were not having tickets. Out of them 24 are adults and one is a chargeable child. The said 25 passengers without tickets belong to a marriage party. On examination one B. Ramanna of Pallampalli village of Karimnagar district informed the checking authorities that he paid Rs. 208-50p. towards the fare of 25 passengers. He has further stated that they got into the bus at Ramagudem which is stage 5 and they were proceeding to Karimnagar, which is stage 13. His statement was recorded by one Rajayya, Veterinary officer of Godavarikhani since the petitioner conductor declined to write the said statement. In view of that the following charge were framed against the-petitioner:
"1. For having violated the rule issue close and start.
2. For having failed to collect the fare and issue tickets to a batch of 24 adult passengers and a chargeable child, who boarded the bus at Ramagundam and found for Karimnagar ex-stages 5 to 13.
3. For having failed to close the ticket tray nos. of all denominations from stage No. 11 to 13 i.e., from Sultanabad to Karimanagar.
4. For having instigated the ticketless passengers to give their statement as if they are coming from Sultanabad to Karimnagar instead of Ramagundam.
5. For having refused to receive charge memo, given spot explanation and attest other documents of the case when asked to do so by the checking official, resulting which the same was got attested by the service driver."
The enquiry officer held all the charges as proved and after exhausting all the departmental forums, the petitioner approached the first respondent having filed I.D.No. 299/87. The Industrial Tribunal having enquired into the matter held that the Corporation authorities were justified in passing the orders of removing the petitioner from service. Aggrieved by the same the petitioner approached this court.
3. It is a case where 25 persons - 24 adults and one chargeable child were travelling from Ramagudem stage No. 5 to Karimnagar Stage No. 13, they were not issued any tickets and Ramanna, a person representing this marriage party, informed that Rs. 208-50 p. was collected from the marriage party towards freight charges and no tickets, were issued to them. The said statement of Ramanna was recorded by a Veterinary officer of Godavarikhani who was travelling in the bus and in view of the circumstances the enquiry officer rightly held that the charges were proved. It is to be noted that at the time of checking S.R. was closed. Basing on the said material the first respondent also agreed with the domestic enquiry. The petitioner has no grievance against the domestic enquiry.
4. Before proceeding further it is to be noted that in Writ Appeal No. 773/89 dated 15-1-1990 a Division Bench of this court consisting of Chief Justice Yogeswar Dayal (as he then was) and Justice A. Venkatarami Reddy held that collecting fares from passengers and not issuing tickets to them is embezzlement of the funds due to the Corporation, the duty of the conductor was to collect fares and issue tickets to passengers but not to indulge in collecting money without issuing tickets to passengers. Such an indulgence it was held is a worst conduct on the part of the employee and such a conduct cannot be called as an insignificant charge and a person involved in such a matter deserves to be removed from service.
5. Similarly in W.P. No. 16584 of 1987 which was disposed of on 6-4-1990 where in it was held that the conductor having collecting fare from 8 passengers had not issued to them the tickets and it was held that it is a clear case of misappropriating the funds of the Corporation and the only proper punishment is removal of the Conductor from service.
6. Sri Y. Rama Rao, the learned counsel for the petitioner submits that the first respondent has taken into consideration the past conduct of the petitioner without affording an opportunity to the petitioner to rebut the same. To show the Industrial Tribunal relied upon the past conduct of the petitioner reliance in placed in the following the passage incorporated at para 15 of the order of the first respondent:
"The petitioner wanted to loot the Corporation like a Chambel valley dacoit The petitioner was appointed on 25-5-73. His punishment started from 28-6-73. He was warned seven times, his increments were postponed five times and his security deposit was forfeited once. He was suspended on 7-7-83,28-10-81 and 24-5-85. All these punishments were given for cash and ticket irregularities. The petitioner did not mend himself though several opportunities were given to him."
7. This passage clearly shows that the past conduct of the petitioner was taken into consideration. As such now it is to be seen as to what is the effect of the same.
8. In W.P.No. 11039 of 1988 dated 5-11-1991 Justice Eswara Prasad dealing with the past conduct in similar circumstances observed as follows:
"From the above decisions the settled law is that, unless the past conduct of the workman was integral part of the charge and the workman had an opportunity to meet it in the domestic enquiry, the Labour Court cannot rely on the said material and the workman should be given an opportunity to controvert the same. In this case the tribunal was in error in referring to the past conduct of the petitioner which was placed before the Tribunal for the first time and which was not an integral part of the charge."
In the case on hand, admittedly past conduct of the workman was not integral part of the charge and the workman had no opportunity to meet it in the domestic enquiry.
The learned Judge took the same view in the subsequent Writ Petition i.e, W.P.No. 5260 of 1988 disposed on 3-12-1991.
9. Similar matter came up before the Madras High Court in a decision reported in Sri Bharati Mills and Ors. v. Sri N.S. Mohan, 1991 Labour Law Report 770. This was a case where the past record of the conductor was taken into consideration while passing order of termination without making the objectionable past conduct as a part of charge memo. On the above facts a Division Bench of the Madras High Court observed as follows;
"Since the past conduct or record of service has been taken as an act on the part of the employee warranting the extreme penalty without the employee being put to notice, the learned Single Judge was perfectly justified in holding that the principles of natural justice had been violated by the impugned proceedings. But where the part conduct or record of service is taken as an act by itself to impose the punishment, that cannot ,' be done without putting the employee to notice."
10. In W.P. No. 11642 of 1987 dated 3-4-1990 a Division Bench of this Court consisting of Justice Jeevan Reddy, as he then was, and Justice P. Venkatarama Reddi considered whether in a case similar to the one on hand, any interference is warranted under Article 226 of the Constitution of India and if so what is the relief that should be granted. Having posed the said question the Bench observed as follows:
"All that the Labour Court has done is to look into the service record. Service Record is maintained by the employer, in which the particulars of service mentioned. This is not a case where the Labour Court has looked into or received some evidence which could be rebutted or controverted by the employee by adducing other evidence. The entries made in, the service record are authentic and could not be disputed by the employee. The service record shows that in the course of his service, spread over eight years, the petitioner had suffered several punishments. He was, indeed, removed from service once, in November, 1977; but on appeal, he was directed to be appointed as a fresh conductor, even while confirming his misconduct. He was suspend thrice, censured six times, and warned twice. His annual increments also were deferred twice. All these punishments were given for cash and ticket irregularities. This shows that the petitioner is beyond redemption; he is incurable. We do not think that the discretionary jurisdiction of this court under Article 226 should be exercised to help such a person, not withstanding the finding arrived at by us that the Labour Court had no jurisdiction to look in this service record. The Labour Court may not have that jurisdiction; but, on tie question. whether we should exercise our discretionary jurisdiction under Article 226, we are entitled to look into the said record. It would be a negation of justice to help the petitioner in this case, and that too on the ground that his service record whose authenticity is beyond dispute-could not have been looked into by the Labour Court on the question of punishment. It is well settled that on proof of a mere irregularity this Court is not bound to interfere under Artcle 226. Such interference will be made only if it advances the course of justice (vide Sangram Singh v. Election Tribunal, Kotah2; Venkateswara Rao v. Government of A.P. 3and State of U.P. v. Dt. Judge, UNNAO. We are, therefore, not inclined to interfere it this matter."
11. In view of the above observations finding no merits the writ petition is dismissed. No costs.