Andhra HC (Pre-Telangana)
M. Narayana vs Industrial Tribunal-Cum-Labour ... on 28 July, 1999
Equivalent citations: 1999(5)ALD574
Author: Goda Raghuram
Bench: Goda Raghuram
ORDER
1. The petitioner was a conductor in the APSRTC. Consequent on a check on 23-3-1989 while the petitioner was on duty, certain allegations were levelled against the petitioner and he was suspended from service by the order dated 3-4-1989 and later issued a charge-memo setting out three articles of charge. Consequent on an enquiry conducted by the orders of the employer dated 10-7-1989 the petitioner was visited with the penalty of removal from service. The appeal by the petitioner against the said penalty having been rejected by the orders dated 19-10-1989, the petitioner preferred ID No.154 of 1990 before the Labour Court, Anantapur, which by the award dated 14-7-1992 rejected the claim and confirmed the disciplinary proceedings. Aggrieved thereby the writ petition.
2. The learned Counsel for the petitioner assails the award of the Labour Court principally on two grounds:
(a) that the finding of the Labour Court in respect of charge No.2 is inconsistent with the contents of the charge; and
(b) if such erroneous finding of the labour Court is eschewed, then the discretion exercised by the Labour Court in confirming the quantum of penalty under Section II-A of the ID Act, 1947 would be an erroneous exercise, warranting interference under Article 226 of the Constitution of India.
3. It is, necessary, therefore to consider the language of charge No.2 and the finding of the Labour Court. Charge No.2 laid against the petitioner is in the following terms:
Charge No.2: For having collected an amount of Rs. 11-00 from a batch of two passengers towards the passengers fare and luggage fare of 5 bags each weighing 25 kgs. who were travelling from Chaintayapalli to Tadipatri Ex.Stages 7 to 1 and issued passenger tickets 114/ 911189 to 190 of Rs.3.25 ps. and luggage tickets bearing Nos.050/375360 to 361 of 0.50 ps. issued lugguage tickets worth Rs.100 only instead of Rs.2.50 ps. which constitutes misconduct under Reg.28 (xxvi) of APSRTC Employees Conduct Reg. 1963.
4. The Labour Court's analysis of the phraseology of the charge and the evidence in support thereof is in the following terms:
"Point No.1: The sum and the substance of the charges framed against the claimant is that the claimant failed to issue correct luggage tickets and that he also failed to return the change due to the passengers who paid the luggage ticket amounts and also there is violation of the rule issue and start. The ITIs of the special checkings squad who conducted the check recorded the spot statements of the passengers who put the luggage into the bus and also the spot explanation of the claimant herein. As per their statements these two passengers paid Rs.11/- in total for 2 passenger tickets at Rs.3.25 ps., each and for the luggage. As per the evidence that these passengers loaded the bus with 5 bags of iron containing 25 Kgs. each besides some other iron material. The conductor issued passenger tickets correctly i.e., at Rs.3.25 ps. each but issued 2 luggage tickets of Rs.0-50 ps. each. So the total amount of tickets issued by the conductor comes to Rs.7.50 ps. Admittedly by the time of check neither the conductor returned the change due to the said passengers nor he made any endorsement on the reverse of the tickets issued to the said passengers. According to the checking squad and also as per the spot statements recorded, that the weight of each bag is 25 Kgs. besides the other iron pieces. So, at that rate the conductor/workman should have issued, five Rs.5.50ps. tickets towards luggage. At this juncture the contention of the workman is that he roughly estimated the weight of the luggage and he has correctly issued the luggage tickets. The learned Counsel for the respondent/ management has rightly argued that if really the conductor/workman is disputing the weight as assessed by the checking officials at Tadipatri itself he should have asked and requested the checking staff to get the bags weighed. But there is no such request or demand made by the workman at the spot. Further in his spot explanation also he did not dispute the weight as assessed by the checking officials. Even otherwise admittedly the conductor/workman had to return a sum of change Rs.3.50 ps. to the passengers referred to in charge No.2. As admitted by him the conductor failed to return the said change and that he did not make any endorsement on the tickets issued to the said passengers. Even if the contention of the claimant so far as the weight of the luggage is concerned is taken to be right, he failed in his duty in returning the change due and thus pocketed the balance amount. There is absolutely no intention on the part of the claimant to return the said change and this fact can be inferred by his not endorsing on the reverse of the tickets issued about the change due. No doubt the workman examined the alleged passenger in the enquiry but this passenger was not identified by the checking official who is examined in the domestic enquiry. Further this witness gives a different version only with a view to support the conductor/workman. As stated above, the fact remains that the conductor/workman pocketed the revenues of the Corporation by not returning the change due. It is also true that the conductor/workman failed to observe the rule issue and start because he has failed to issue correct tickets towards the luggage. In that view of the matter it should be held that the claimant herein with a fraudulent intention to make wrongful gain to himself and also with a view to put the corporation to loss pocketed the balance amount due to the passengers. But for the check made by the checking officials this misconduct should not have been detected. In that view of the matter it should be held that all the charges framed against the workman are proved beyond reasonable doubt. Hence this point is answered against the claimant/workman."
5. As is apparent from the above discourse of the Labour Court, the Labour Court fell into a serious error in comprehending the gravamen of the charge both in its text and its spirit. There is nothing in the language of the charge either expressly or by any necessarily implication containing an allegation of any intention on the part of the workman to misappropriate the amounts collected nor is there any allegation that the under-issue of the tickets was founded upon an intention to defraud the Corporation of its revenues. Consequently, the finding of the Labour Court that the workman "with a fraudulent intention to make wrongful gain to himself and also with a view to put the Corporation of loss pocketed the balance amount due to the passengers" is a finding that is erroneous and what is more, it is vitiated by a jurisdictional error inasmuch as it constitutes a finding without a foundation in a charge. The above finding of the Labour Court thus cannot be sustained.
6. The further question that survives on this analysis is whether the confirmation by the Labour Court of the penalty of removal in exercise of its discretion under Section 11-A of the Act would be valid and if not what would be the proper course for this Court to adopt?
7. The allegations in charge Nos.1 and 2 are in the nature of allegations of irregular exercise of mandatory functions by the conductor-workman. After elaborate submissions on the issue by the learned Counsel for the Corporation and of the workman, this Court is satisfied that those allegations of irregular exercise of official functions do not per se constitute adequate foundation for a rational exercise of the disciplinary power to visit the workman with the penalty of removal. As I have found that the finding of the Labour Court in respect of charge No.2, namely, that the workman has misappropriated the fares collected with a fraudulent intention and with a view to defraud the Corporation of its revenues, is erroneous and unwarranted, charge No.2 in its letter and spirit is a charge relating to irregular exercise of functions. While it would have been in the fitness of things that the matter be remanded to the Labour Court for a fresh view as to the adequate penalty in the context of the above findings by this Court, I am persuaded by the circumstances that the whole disciplinary matter has been in lis for over a decade and it would be neither pragmatic nor in the interest of administrative expediency that the APSRTC or the workman continue to suffer the throes of this litigation. Counsel for the parties agree that this Court in exercise of its jurisdiction under Article 226 of the Constitution in an appropriate case can deliberate upon the question of appropriateness of punishment which is primarily in the domain of the labour Court under Section 11-A of the Industrial Disputes Act.
8. Having regard to the submission made at the Bar and the decision of the Supreme Court in Workman of Bharat Fritz Werner (P) Ltd. v. Bharat Fritz Werner (P) Lid., and on an analysis of the facts and circumstances of the case, to which I have adverted to supra, I am of the opinion that the interests of justice and the interest of administration would both be balanced and met if the workman were to be appointed afresh as a conductor in the APSRTC. On such re-appointment, the petitioner would not be entitled to any backwages. He would, however, be entitled to the benefits of continuity of service for the limited purpose of availing terminal benefits on such basis and such continuous service would not enure to the petitioner's benefit in the matter of seniority.
9. The writ petition is allowed to the extent indicated above. There shall be no order as to costs.