Andhra HC (Pre-Telangana)
J. Durgappa vs Industrial Tribunal-Cum-Labour Court ... on 13 November, 1995
Equivalent citations: 1996(1)ALT18
ORDER G. Bikshapathy, J.
1. The Award of the Industrial Tribunal, Ananthapur in I.D. No. 113/89, dated 12-12-1990 is assailed by the Workman.
2. The facts leading to the Award are that the petitioner was appointed as a Clearner in A.P.S.R.T.C. in 1981. While so, on the intervening night of 22-4-1988 he is alleged to have committed some misconducts, thereupon a charge-sheet was issued and after the enquiry was conducted, he was meted out with the punishment by orders dated 31-8-1988 and after availing the appeal remedy unsuccessfully the petitioner filed an application under Section 2-A (2) of the Industrial Disputes Act before the 1st respondent-Industrial Tribunal-cum-Labour Court, challenging the punishment imposed by the 2nd respondent. The petitioner submits that the charges as framed against him are not inconsonance with the provisions of A.P.S.R.T.C. Employees Regulations. Further, there is no sufficient evidence to establish the charges framed against the petitioner. He further assessed the findings of the Enquiry Officer as perverse and in some cases, the finding is not based on any evidence. Finally, he also submits that even assuming that the charges have been proved, the punishment is grossly disproportionate to the gravity of misconduct alleged against the petitioner. The petitioner submits that the Industrial Tribunal has not considered these issues in proper perspective and proceeded mechanically in tune with the Enquiry Officer's finding. Even, without considering the gravity of the charges, vis-a-vis punishment, the Tribunal held that the punishment is proper and thus refused to grant any relief to the petitioner. It is also the case of the petitioner that Industrial Tribunal failed to exercise jurisdiction vested under Section 11 of Industrial Disputes Act.
3. On the other hand, the learned Counsel for the Corporation Sri I. Aga Reddy submits that the 1st respondent tribunal found that the charges framed against the petitioner were proved and the findings thereof recorded by the Enquiry Officer cannot be interfered with by this Court under Article 226 of the Constitution of India.
4. Thirdly, the punishment meted out to the petitioner under the circumstances keeping in view the charges framed against the petitioner is quite appropriate and the same cannot be modified or set aside. The Tribunal having exercised the power under Section 11 (a) (sic. 11-A) of the Act confirmed the order passed by the 2nd respondent and this Court sitting under Article 226 of the Constitution of India cannot re-appreciate the evidence and modify the punishment. Thus, the learned Counsel submits that the Award is quite valid and the same is unassailable.
5. I have considedred the respective contentions of both the sides. Before going into the merits of the case, it is necessary to extract the charges framed against the petitioner:
Charge No. l: For having deserted the work alloted by the on duty Leading Hand to assist Sri B. Purushotham, E. 26695, Mechanic in your shift duty from 20-00 hours to 4-30 hours on 22/23-4-1988 and slept in the vehicle AEZ 2341 and when the Leading Hand made to wake up to work again you slept in another vehicle AEZ 1219 respectively, causing dislocation of work in the maintenance of vehicles, which constitutes misconduct under Regulation 28(xxviii) of APSRTC, Employees (Conduct) Regulations, 1963."
Charge No. 2: For having misbehaved with the on duty L.H. when asked to give in writing about your sleeping with drunken condition, you have refused to give, while you were attending the shift duty from 20-00 hours to 4-30 hours on 22/23-4-1988, which constitutes misconduct under Regulation 28(viii) of APSRTC, Employees' (Conduct) Regulations, 1963".
Charge No. 3: For having attended the garage in drunken state by influence of liquor to your shift duty from 20-00 to 4-30 hours on 22/23-4-1988, which was witnessed by the on-duty Security Guards which constitutes misconduct under Regulation 28(xvii) of APSRTC Employees' (Conduct) Regulations, 1963."
To sustain these charges, the Department recorded the evidence of 8 witnesses, while the petitioner examined himself in defence of his case. The Enquiry Officer held all the charges proved and the Tribunal also found that the enquiry is not defective and the findings of the Enquiry Officer are justified.
6. Now the learned Counsel for the petitioner submits that the findings of the Enquiry Officer are perverse and no person of ordinary prudence would have come to such findings on the basis of the evidence available with the Enquiry Officer. He submits that the petitioner was attached to one Sri Purushotham, a mechanic, (to whom he was attached) till the end of the duty hours and the said Purushotham was examined before the Enquiry Officer. He had never stated anything about the intoxication of the petitioner, nor were there any complaint that the petitioner has selpt in the vehicles. On the other hand, it is the categorical statement of the mechanic that the petitioner had assisted him during the duty period and that both of them attended to the vehicles and necessary entries were also made in the Registers. On the basis of this evidence, the learned Counsel submits that the finding that the petitioner has committed the misconduct of desertion of work and sleeping when the petitioner was on duty in the bus could not be sustained.
7. The learned Counsel for the Corporation submits that when once the findings are rendered by the Enquiry Officer and accepted by the Tribunal, it would not be open for this Court to re-appreciate the entire evidence and come to a different conclusion. I am afraid, I cannot accept this proposition when the findings are challenged on the ground that they are perverse, the Court is entitled to go into the merits as to whether the findings based on the evidence available before the Enquiry Officer were arrived at in a correct manner or they are vitiated by perversity. It has been held by the Supreme Court time and again that the Enquiry Officer is expected to reach a fair and un-biased finding. The validity of the finding has to be tested from the point of view of ordinary person. If the person of ordinary prudence comes to a conclusion on the basis of the material placed before him that the charges are proved, then such a finding cannot be interfered with. But if the evidence is not such as to enable that person to come to such a finding, then it is to be held to be vitiated by perversity. Admittedly, in the instant case, the Leading Hand entrusted to the mechanic Purushotham, the petitioner as a Cleaner to assist him in the duty on the intervening night of 22/23-4-1988. When the primary person, has not been able to establish that the petitioner was not (sic.) in a drunken condition and that he slept in the bus, the finding that the charges proved could not be sustained. Even the Mechanic himself had categorically stated that he did not see the petitioner in a drunken condition at that time. This piece of evidence has not been considered by the Enquiry Officer nor by the Tribunal. On this ground, I find that the finding rendered by the Enquiry Officer is absolutely perverse and accordingly the charges cannot be held to be proved on the basis of the material available on record.
8. Coming to charge No. 2, it could not be comprehended that such a charge could be framed against the petitioner. When the petitioner was asked to give in writing about certain events and if he refuses to give such a statement, it would not be styled as misconduct and that he should be taken to disciplinary proceedings under the regulation.
Regulation 28(vii) contemplates that insubordination or disobidience, individually or with another or others to any lawful orders of superior officers is a misconduct.
Therefore, the charge should be in conformity to the said regulation. But a reading of the charge clearly indicates that the petitioner was asked to give in writing about his sleeping in a drunken condition and the same was refused. That could not be styled as misconduct as the very demand of asking the petitioner to give such a statement cannot be said to be a lawful order of the superior officers.
Under these circumstances, the Charge No. ii cannot be sustained.
9. Coming to the third charge, that the petitioner attended the Garage in a drunken state at the instance (sic. influence) of liquor, I find no evidence to sustain this charge. Even immediate superior i.e., the Mechanic Purushotham did not say anything about the drunken-ness of the petitioner. On the other hand, it is clear statement that they performed the duty jointly till the end of the duty hours. In the absence of any medical evidence, the oral testimony of Leading Hand cannot be relied on more especially in the wake of a statement of immediate superior officer. Therefore, finding on this charge is also held to be not established.
10. The curious aspect of the situation is that the Tribunal failed to apply its mind to the facts of this case at all and proceeded with the Award, without even considering the evidence available on record vis-a-vis with the findings of the Enquiry Officer, except saying that the Enquiry Officer came to a conclusion that the charges have been proved. The tribunal did not scan the evidence which it is expected to do.
Under these circumstances, I am constrained to hold that all the charges levelled against the petitioner are not proved. Consequently the order of punishment is liable to be set aside.
11. Coming to the question of relief, when once the order of termination is held to be illegal and unwarranted it is for the Court to grant necessary relief keeping in view the interest of both the parties. Admittedly, in this case the petitioner was removed from the service on 31-8-1988 and now that the punishment is held to be invalid and he is entitled for reinstatement into service. With regard to the back-wages I am not inclined to grant full back-wages keeping in view the facts and circumstances of this case.
12. Under these circumstances, I set aside the Award of the Labour Court in I.D. No. 113/89 dated 12-12-1990 and direct the Respondent to reinstate the petitioner into service with 50% back-wages with all attendant benefits. The Writ Petition is allowed to this extent. No order as to costs.