Andhra HC (Pre-Telangana)
The Depot Manager, Apsrtc Bus Depot vs D.S. Rao And Anr. on 18 October, 1995
Equivalent citations: 1995(3)ALT416
Author: T.N.C. Rangarajan
Bench: T.N.C. Rangarajan
JUDGMENT M.N. Rao, J.
1. This appeal by the Depot Manager, Andhra Pradesh State Road Transport Corporation, Warangal-II Depot, Warangal is from the judgment of a learned single Judge of this Court in W.P. No. 12607 of 1990 quashing the award passed by the Industrial Tribunal-cum-Labour Court, Warangal in I.D. No. 390 of 1988 dated 31-3-1990, by which the Tribunal upheld the order passed by the appellant herein removing the first respondent from service as a conductor of the Corporation. The learned judge also granted a consequential direction reinstating the first respondent into service with full backwages and all attendant benefits like seniority, future promotions etc., but subject to the condition that the employer-Corporation was entitled to withhold Rs. 2,186-25 from the backwages payable to the first respondent-workman.
2. The first respondent was on duty on 25-8-1986 conducting the bus bearing Regn. No.APZ 8687 belonging to the Corporation, which was carrying 16 passengers, on the route - Parkal to Ghanpur - when the vehicle met with an accident at about23-00 hours at Arepally, resulting in damage to the vehicle and injuries to a number of passengers. The injured passengers were taken to the hospital where they were treated as out-patients. The first respondent also sustained an injury, for which he was treated at the M.G.M. Hospital in Warangal as an out-patient and thereafter, he went home. In respect of that accident, a report was submitted by the Senior Traffic Inspector of the Corporation in which it was concluded that when he visited the accident spot on 26-8-1986 along with the driver of the bus, the Depot Secretary and another person, the following articles were found:
(1) one empty cash bag;
(2) one ticket tray along with ticket blocks.
(3) one tray box;
(4) one nipper.
The above articles were handed over to the Depot Controller and after verifying the tickets as per the way bill, the Senior Traffic Inspector found that the bus cash remitted by the first respondent fell short by Rs. 2,186-25 since the amount remitted by him was Rs. 194 / - in the Depot on 27-8-1986. Based on the aforesaid report, a charge-sheet was issued on 7-10-1986 to the first respondent levelling the following charges:
" 1. For having failed to report the accident message and loss of bus cash to the nearest police station immediately on 25-8-1986 after occurring the accident, even though he had crossed the police station thrice on the night of the accident which amounts to misconduct under Reg.28 (xxii) of APSRTC Employees (Conduct) Regulations, 1963.
and
2. For having remitted the bus cash of Rs. 194/- instead of Rs. 2,380-25 i.e., short by Rs. 2,186-25 which amounts to misconduct under Regulation 28 (xxxi) of APSRTC Employees (Conduct) Regulations, 1963."
In his explanation dated 23-10-1986, the first respondent stated that on account of the accident in the mid-night, he received injuries on the left leg resulting in considerable pain. He was in a state of unconsciousness for some time and one passenger, in an auto-rickshaw, brought him to the depot and on the way he stopped at Hanamkonda Police Station to lodge a report about the accident and the loss of cash. The police authorities refused to receive the report and advised him to go to Hasanparthi Police Station as the latter alone had jurisdiction to entertain complaints of that nature. He reported the matter at the Depot to the Maintenance Shift Incharge, who arranged a bus by which he went to the Depot Manager at about l.O' clock in the night and reported the entire incident including the loss of bus cash. He was taken by the Depot Manager to the Hospital and on 26-8-1986 at about 2.00 p.m., he submitted a report about the accident and loss of bus cash to the Sub-Inspector of Police, Hasanparthi Police Station. Taking advantage of his injuries and the State of unconsciousness, somebody had stolen the amount and, therefore, he could not be held responsible for the loss of cash.
3. That explanation was not accepted by the authorities and an enquiry was ordered. During the enquiry, the driver and one of the passengers of the bus which met with the accident were also examined apart from the first respondent, who gave evidence in support of his plea of innocence. In his report dated 25-3-1987, the Enquiry Officer held the first respondent guilty of the two charges. A show-cause notice dated 8-4-1987 was thereafter issued to the first respondent calling upon him to show-cause why he should not be removed from service. After considering the explanation submitted by the first respondent on 4-5-1987, the Depot Manager, the appellant herein, issued proceedings dated 14-5-1987 removing the first respondent from the service of the Corporation.
4. Aggrieved by that, the first respondent raised an industrial dispute in I.D. No. 390 of 1988 before the Industrial Tribunal-cum-Labour Court, Warangal. The Tribunal, after considering the entire material on record, upheld the order of removal. It was pointed out by the Tribunal that from the evidence of the driver of the bus it was clear that the plea raised by the first respondent that he became unconscious was false. The first respondent's assertion that one of the passengers travelling in the bus by name Lingamma collected the entire cash and went away in a lorry, according to the Tribunal, was belied by the complaint lodged by the first respondent in which there was no mention about this aspect. It was also pointed out by the Tribunal that if the first respondent had really lost the entire cash as claimed by him, how could he remit only Rs. 194 /- in the Depot on 27-8-1986 and this was also at variance with the fact proved viz., the empty cash bag found at the spot immediately after the accident. It was, therefore, concluded by the Tribunal that taking advantage of the accident, the first respondent misappropriated the amount, left the empty cash bag in the bus itself and thereafter remitted Rs. 194/- on 27-8-1986 so as to make it appear that he lost the cash at the time of the accident.
5. The award of the Tribunal was challenged by the first respondent in W.P. No. 12607 of 1990. The learned single Judge after stating the facts observed that the failure on the part of the first respondent in not lodging the complaint with the police at Hasanparthy "is quite plausible and satisfactory; he went to the police station at Hanamkonda in an auto-rickshaw hired by one of the passengers to lodge the complaint without knowing the intricacies of jurisdictional aspects and that it is quite possible and probable that in that malee because of the accident that too in the late night with passengers on board, the cash might have been lost. When there is such a scope for a reasonable inference, the benefit of doubt should go to the delinquent-petitioner". Proceeding further, the learned Judge held:
"In fact, there was no doubt about the genuineness of the claim of the petitioner that a major portion of the cash was lost and that only Rs. 194/- could be traced and that the same was remitted on 27-8-86."
Adverting to the aspect of proportionality, the learned Judge expressed the view that the only punishment should have been to recover the said amount of Rs. 2,186-25 but not to remove the petitioner from service, which is the harshest of the punishments contemplated. On that view, the writ petition was allowed, as already stated supra, directing reinstatement with full backwages subject to the condition of the entitlement of the Corporation to withhold the aforesaid sum of Rs. 2,186-25 from the backwages of the first respondent.
6. Smt. Vijayanthi, learned Standing Counsel for the Corporation, has urged that the judgment under appeal deserves to be set aside in toto since it transgresses the permissible limits of judicial review; the learned Judge has substituted his views for that of the departmental authorities on the question regarding the proof of the two charges. Sri Jayaprakash Rao, learned Counsel for the first respondent-workman has endeavoured to point out that the view taken by the learned Judge was correct as the punishment meted was harsh and there was no proof regarding the culpability of the workman.
7. We have considered the question, as we ought to, from the point of view of the limits on the power of judicial review of the High Courts under Article 226 of the Constitution of India. The only conclusion, we think, that must be reached is that the judgment under appeal must be over-turned. In what respects the findings of fact reached by the Enquiry Officer and affirmed by the Tribunal were vitiated have not been stated by the learned Judge. It is no part of the function of this Court, while exercising the power of judicial review, to record a finding that the explanation offered by the workman was plausible and satisfactory; that power is vested in the departmental authorities and the Tribunal alone has the power to decide questions of fact. Granting benefit of doubt for the purpose of exonerating an employee who was found guilty of the charges held proved against him is clearly outside the purview of this Court's jurisdiction under Article 226. This legal position is irrefragable.
8. The constitutionality of any statutory regulation of the Corporation is not at issue in this case and, therefore, we need not go into the questions concerning ultra-vires action as a result of non-compliance with any statutory regulations or the regulations themselves being unconstitutional on the ground of violation of the guaranteed fundamental rights or the authority that framed the regulations or the statute lacking legislative competency.
9. Lord Greene, M.R., in Associated Provincial Picture Houses, Limited v. Wednesbury Corporation, (1948) 1 K.B. 223 at 229 had stated the permissible grounds of attack for allowing judicial review (i) bad faith, (ii) dishonesty, (iii) attention given to extraneous circumstances, and (iv)disregard of public policy.What is meant by an unreasonable action was explained by the learned Master of Rolls:
"For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority."
In the celebrated case of Ridge v. Baldwin, 1964 A.C 40 Lord Reid, in his speech, laid down the principle:
".... a decision given without regard to the principles of natural justice is void.... The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case."
Lord Evershed, although in his speech dissented from the conclusion reached by Lord Reid with which the majority agreed, stated the legal position about which there was no disagreement:
"......, whenever anyone is discharged from some office seems to me to involve a danger of usurpation of power on the part of the Courts and under the pretext of having regard to the principles of natural justice to invoke what may often be in truth little more than sentiment; and upon occasions when the Courts, though having necessarily far less knowledge of all the relevant circumstances, may be inclined to think that, had the decision rested with them, they would have decided differently from the body in question. Yet I do observe again that it is not the decision as such which is liable to review; it is only the circumstances in which the decision was reached and particularly in such a case as the present, the need for giving to the party dismissed an opportunity for putting his case."
10. Citing the statement of law of Lord Evershed in Ridge v. Baldwin, 1964 A.C 40 it was held by Lord Brightman in Chief Constable v. Evans, (1982)1 W.l.r. 1155:
"Judicial review is concerned, not with the decision but with the decisionmaking process. Unless that restriction on the power of the Court is observed, the Court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power." Amplifying the ambit of jurisdiction in matters concerning judicial review, Lord Diplock in CCS. U. v. Minister for Civil Service, 1985 A.C 374 observed in his speech:
"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 three heads the grounds upon 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' which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.
By illegality as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the Judges, by whom the judicial power of the State is exercisable. By 'irrationality' I mean what can by now be succintly referred to as "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd., v. Wednesbury Corporation - (1948) 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that Judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system."
In the spheres of public employment and industrial law, reinstatment into service in consequence of a wrongful dismissal is a peculiar and distinct feature of the Indian Public Law - the result of long developed self-conscious particularity of our own, despite the fact that the law as expounded by the British precedents and followed by us clearly forbids such reinstatement but only permits damages and in suitable cases, fresh appointment.
11. We must make it plain in this context that the principle of proportionality although cannot be invoked by the High Court under Article 226 of the Constitution of India in respect of disputes concerning public servants (Vide: Union of India v. Paramananda - and State of Orissa v. Bidyabhushan - in so far as questions that arise for adjudication under the Industrial Disputes Act that principle has undoubted application by virtue of Section 11-A of the Act, See: Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha-1980 (1) LLN 230 - empowering the High Court to modify or alter the punishment imposed by the Industrial Tribunal.
12. The Engligh law as to the limits on the power of judicial review has become part of our public law. Citing the aforesaid English authorities, our Supreme Court in Dwarkadas Marfatia & Sons v. Board of Trustees, Bombay Port, held:
"It is not within the purview of a Court to substitute a decision taken by a constituted authority simply because the decision sought to be substituted is a better one."
13. Tested in the light of the extant limits on the power of judicial review, we must hold that the view taken by the learned Judge is plainly unsustainable. The conclusion reached by the learned Judge that the workman was not guilty of the charges levelled against him are based upon his own appreciation of the evidence which is clearly unwarranted. In other words, the learned Judge substituted his own view for that of the competent authority.
14. We have gone through the report of the Enquiry Officer and the statements of witnesses and also the award of the Industrial Tribunal and in our view, the inferences drawn from the primary facts are not afflicted with any of the infirmities giving rise to interference under Article 226. The learned Counsel for the first respondent-workman Could not point out how the conclusions are unsustainable: the conclusions do not suffer from want of evidence, breach of principles of natural justice, unreasonableness, illegality, irrationality or perversity much less bad faith. We accordingly set aside the judgment of the learned Judge to the extent he held that the charges against the first respondent were not proved.
15. Sri Jayaprakash Rao, learned Counsel for the first respondent, says that the charges held proved against his client do not constitute misconduct. We do not agree. They undoubtedly fall within the ambit of Regulation No. 28 (xxxi) of the Andhra Pradesh State Road Transport Corporation Employees (Conduct) Regulations, 1963 - "any other act not specifically mentioned above but which is prima facie detrimental to the interests of the Corporation". Failure to report to the nearest police station about the accident and failure to remit the bus cash in full are undoubtedly acts which are detrimental to the interests of the Corporation.
16. We now come to the question of punishment. Although inferentially it could be said that the failure to remit the full amount was an act of dishonesty thereby necessarily implying that the amount was misappropriated, inasmuch as that was not the charge levelled against the workman, we think directing his reinstatement but treating the interregnum period between the date of removal and the date of rejoining as leave without salary and the previous service to be counted only for the limited purpose of retirement benefits but not for accrual of increments and seniority for claiming promotion, in the circumstances, in our opinion, would be a proper punishment. In other words, the first respondentworkman should be started with initial pay in the scale admissible for a Conductor without any increments. He shall pay back to the Corporation the sum of Rs. 2,186-25, which he failed to remit. By virtue of the interim order dated 16-2-1993 passed by a Division Bench of this Court in W.A. M.P. No. 161 of 1993, the appellant herein was asked to deposit one-half of the backwages with the Labour Court and the first respondent was permitted to withdraw that amount. In view of our judgment in this writ appeal setting aside the finding of the learned single Judge, the first respondent is liable to refund the entire amount withdrawn by him to the Corporation and steps shall be taken by the latter to recover the same. If the Corporation feels that the first respondent-workman may not be in a position to remit back the said amount due by him along with the aforesaid sum of Rs. 2,186-25 in lumpsum, he may be given the facility of repaying the same in monthly instalments.
17. The writ appeal is accordingly allowed with the aforesaid directions. No costs.