Andhra HC (Pre-Telangana)
K. Dayanand vs The Depot Manager, Andhra Pradesh State ... on 1 April, 1992
Equivalent citations: (1994)IILLJ154AP
JUDGMENT Mohammed Sardar Ali Khan, J.
1. This Writ appeal is directed against the judgment dated December 16, 1986 in Writ Petition No. 3742 of 1985.
2. The appellant is a conductor working in the A.P. State Road Transport Corporation (for short 'the Corporation'). He was appointed in 1975. On July 25, 1980, while he was conducting the bus AAZ 2202 from Kammam to Nelakondapalli, a surprise check was carried out and it was found that it was found that the appellant herein had not issued tickets between stages 7 and 8 to 19 passengers, who were travailing ticketless in the bus. Charges were framed and a disciplinary enquiry was held with respect to the irregularities mentioned above. In the enquiry, charges were held proved and a second show cause notice was issued on December 19, 1980 proposing removal from service. The appellant offered his explanation; which was considered to be inadequate and an order of removal was passed on January 12, 1981. The appellant filed an appeal to the Division Manager, who is the appellate authority. The appellate authority, while holding that the conductor had indeed allowed 19 passengers to travel without tickets, took note of the fact that he was in the process of completing ticket issues and that while he was going through this exercise, someone among the passengers gave the bell and the bus started. In that view of the matter, the appellate authority held as follows :
"Purely on humanitarian ground and on the ground that he was in the act of issuing tickets at the time of check, as stated by the checking officials in the enquiry, and only half stage is passed, I an inclined to take a lenient view in the case with a hope that he will prove his bona fides. I therefore hereby order that Sri K. Dayanand, E. 54569 Ex. conductor of KMM depot be appointed as a fresh conductor, if he applies for and posted to Kothagudem depot."
The appellant accepted the decision of the appellate authority without any murmur. He applied for a fresh appointment as a conductor and was appointed as such on July 17, 1981.
3. The National Mazdoor Union, however, took up the cause of the appellant and raised a dispute, on the basis of which the matter was referred to the Labour Court by the Government under Section 10(1)(c) if the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). The reference has been made in the following manner :
"Whether the demand of APSRTC National Mazdoor Union, Khammam Register No. 3108 for granting continuity of service to Sri K. Dayanand, conductor from January 9, 1981 to July 17, 1981 is justified ? If so, to what relief the workman is entitled ?"
4. When the matter was taken up by the Labour Court, the Corporation filed a number documents showing the punishments awarded to the appellant earlier. Ex. M-18 was marked on behalf of the Corporation and it was contended that the case of the appellant does not deserve any consideration. The Labour Court refused to look into the past record on the ground that it was not filed before the first authority and it was produced for the first time before the Labour Court. It was also noted by the Labour Court that there was heavy rush in the bus at the time of surprise check, that the appellant was in the process of issuing tickets and that this fact was accepted by the first authority itself. In the circumstances, the Labour Court observed that the denial of the continuity of service to the appellant was not justified. This is the background of the case, in which the legal issues arising for consideration in this writ appeal will have to be viewed.
5. Sri. G. Ramachandra Rao, learned counsel appearing for the appellant, has submitted that the reference made at the behest of the Union was an 'industrial dispute' as defined under Section 2(k) of the Act. Under the said section, 'industrial dispute' has been defined in the following manner :
"(K) "industrial dispute" means by dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;"
6. It is evident from a reading of the definition of 'industrial dispute' that it takes in its ambit and scope any dispute between employers and employees or between employers and workmen etc. Therefore, there cannot be any doubt that the matter, which was referred for adjudication to the Labour Court, was indeed an 'industrial dispute' as envisaged under Section 2(k) of the Act.
7. The further submission of Sri Ramachandra Rao is that when once the matter is referred to the Labour Court under Section 10(4) of the Act, the Labour Court shall confine its adjudication to those points and matters incidental thereto and decide the dispute raised in the reference. Under sub-section (4) of Section 10, it is provided as under :
"Wherein an order referring an industrial dispute to a Labour Court, Tribunal or National tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the national Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto."
In other words, what is contended on behalf of the appellant is that a pure and simple reference was made by the State Government in regard to the question of continuity of service of the appellant and the Labour Court was under an obligation to answer the reference within the meaning of Section 10(4) of the Act. It is further contended on behalf of the appellant that under these circumstances, Section 11-A of the Act does not come into play at all. Under Section 11-A what is envisaged is that the Labour Court may given an appropriate relief in case of discharge or dismissal of a workman if it is satisfied that the order of discharge or dismissal was not justified. This is the sum and substance of the submission made by the learned counsel for the appellant, which will have to be considered to arrive at a just conclusion in this writ appeal.
8. Sri. K. Harinath, learned counsel appearing for the Corporation, on the other hand, has contended inter alia that the very jurisdiction of the Labour Court to entertain the reference is dubious and, therefore, the Labour Court is not justified in ordering that the appellant may be given the benefit of continuity of service as a conductor from the date of removal till the date of his fresh appointment. It is also stressed by Sri Harinath that the appellate authority has not set aside the order of removal passed against the appellant and the charges as proved, but in view of the humanitarian consideration existing in the case, it had ordered that the appellant may be given a fresh appointment as a conductor without continuity of service or any other attendant benefits thereof, if he applies for the post. As a sequence of the above submissions made by him, it is further asserted that the appellant had accepted the order of the appellate authority and applied for a fresh appointment and has been working as conductor from the date of his appointment as such. It is only the Union which had raked up the issue and brought the matter before the Labour Court vide reference referred to above.
9. The learned single Judge allowed the writ petition filed by the management against the award of the Labour Court purely on the ground of jurisdiction holding that the Labour Court lacked the power to entertain the reference because of the clear wording of section 11-A of the Act. It has already been pointed out that Section 11-A is the only provision in the Industrial Disputes Act, under which the quantum of punishment meted out to a workman by way of discharge or dismissal could be scaled down. In case the jurisdiction of the Labour Court is invoked under Section 11-A of the Act the Labour Court will have to see whether the discharge or dismissal of a workman may be set aside in the circumstances of the case and it may, for reasons to be recorded, direct reinstatement of the workman on such terms and conditions as it thinks fit, or give such other punishment as is deemed fit and proper. It is clear that the reference in question is not in connection with the discharge nor dismissal of the workman, but it is confined and specifically made for the purpose of determining whether the denial of continuity of service of the appellant was justified or not. Hence, the learned single Judge came to the conclusion that since there is neither any discharge nor dismissal in the matter, the Labour Court did not have the jurisdiction to hold that the appellant is entitled to the continuity of service, which in actual fact, amounts to scaling down of the punishment awarded by the first authority. The learned single Judge also held that if we analyse the order directing fresh appointment without continuity of service, in effect it amounts to a reduction in the seniority list under clause (vii) of Regulation 8 (1) of the A.P. State Road Transport Corporation Employees (Classification, Control and Appeal) Regulations, 1967. We think we must analyse the situation to see whether the logic employed by the learned single Judge is correct or not.
10. The appellant has been given the benefit of humanitarian considerations and option to apply afresh for the post of conductor. For all intensive purposes, the order of removal passed against him subsists and there was no challenge to it before the Labour Court as such. He has been denied the continuity of service, which means that he will have to start from a scratch in his career as a conductor in the respondent Corporation. He has been given the benefit of continuity of service by the Labour Court, which means that the penalty which has been imposed on him is definitely watered down in the sense that he stands to gain a lot by getting the continuity of service by way of salary, increments, perquisites, pensionary benefits, etc., in future. Therefore, we find ourselves in agreement with the approach of the learned single Judge that behind the facade of the reference made by the State Government solely for the purpose of determining whether the continuity of service denied to the appellant is justified or not, is the main question and that granting him the continuity of service is really by way of reducing the quantum of punishment, which he is otherwise likely to suffer under the orders of the appellate authority. Once we clear the ground that the case of appellant comes within the purview of reduction of quantum of punishment, then obviously it will be difficult to escape from the provisions of Section 11-A of the Act. Indeed, the contention on behalf of the appellant before the Labour Court was that his case shall be considered under Section 11-A of the Act, though Sri Ramachandra Rao, counsel for the appellant, has retracted from that position before us at the stage of writ appeal. Therefore, we are constrained to observe that we do not find much force in the submission that since the matter was referred by the State Government, the Labour Court was justified in giving a decision under Section 10(4) of the Act confining itself to the question referred by the State Government. The Labour Court ought to have seen that while answering the reference, it would be impinging on the domain of Section 11-A of the Act, which invests the Labour Court with the power to reduce the quantum of punishment only in cases of discharge and dismissal of workmen. In that view of the matter, the proper award to be passed by the Labour Court would have been to hold clearly that it does not have it does not have the jurisdiction to entertain the reference made to it.
11. There is another aspect of the problem, which we would like to touch upon in brief, so that the sequence of events may be completed in the writ appeal before us. What is the proper answer to be given to the reference even if it has entertained the same on merits ? Here is a workman working as a conductor, who was caught red-handed while he was conducting the bus. Several persons were found to be traveling ticketless. The explanation of the workman is that he was in the process of issuing the tickets and someone pressed the bell-starting the bus ahead. The original authority, after due consideration of the explanation and the evidence on record, came to the conclusion that appellant is guilty of serious charge and ordered removal from service. The appellate authority, purely on humanitarian consideration, taking into consideration perhaps the age of the appellant, the manner in which he was trying to acquit himself of his duties in a crowded bus and other relevant factors, came to the conclusion that the order of removal may be left untouched, but the appellant may be given the chance of fresh appointment if he applies for it. The guilt of the appellant in not issuing the tickets, therefore, has not been washed out by the findings of any authority. He is the beneficiary of an order passed as an act of kindness or mercy in his case and it cannot be contended that he has come out unscathed from the enquiry proceedings in the matter. Why, therefore, a person in these circumstances should be allowed to have continuity of service also, so that he may retain his seniority along with others in the cadre of conductors, to which he belongs ? Therefore, taking into consideration purely the merits of the case also, we do not think that the Labour Court was justified in wiping the slate clean by ordering that the appellant may be continuity of service in the matter.
12. There learned single Judge also relied upon the decision of the Supreme Court in M/s. Indian Iron & Steel Company v. Their Workmen 1958 I LLJ 260 in which it is stated that in cases of dismissal on misconduct, the Tribunal may interfere under certain specified circumstances. We find ourselves in agreement with the learned single Judge on that point also. Since we are holding that the Labour Court did not have the jurisdiction to entertain the reference, and on the merits also the order of the first appellate authority did not warrant any interference at the hands of the Labour Court, we dismiss the writ appeal and confirm the judgment of the learned single Judge. There will be no order as to costs.
13. It may be that if the appellant has got any other forum in which he can question the legality of the order of the first appellant authority, he will be at liberty to do so.