Andhra HC (Pre-Telangana)
A.Hanumanthu vs The Depot Manager, Apsrtc,Miryalaguda ... on 6 February, 2014
Author: Dama Seshadri Naidu
Bench: Dama Seshadri Naidu
THE HONBLE SRI JUSTICE DAMA SESHADRI NAIDU W.P.No.14439 of 2008 06-02-2014 A.Hanumanthu..... PETITIONER The Depot Manager, APSRTC,Miryalaguda Depot, Miryalaguda, Nalgonda District and others.....RESPONDENTS Counsel for the petitioner: Sri M.Amanulla Khan Counsel for respondents: Sri H.Venugopal, SC for APSRTC <Gist: >Head Note: ?Cases referred: 1. 1988(1) L.L.N. 760 2. 1996(1) ALD 516 (D.B.) 3. 1997(2) An.W.R. 126 4. 1997(1) ALD 758 (D.B.) THE HONBLE SRI JUSTICE DAMA SESHADRI NAIDU WRIT PETITION No.14439 of 2008 ORDER:
The petitioner, a Conductor in the respondent Corporation (Andhra Pradesh State Road Transport Corporation), was removed from service, based on certain cash and ticket irregularities, said to have been committed by the petitioner. The petitioner, having raised an industrial dispute and having been unsuccessful, filed the present writ petition questioning the award, dated 23.10.2007 in I.D.No.18 of 2006 passed by the Labour Court III, Hyderabad, A.P. The facts, in brief, are that the petitioner initially joined the service of the respondent Corporation as a Conductor in 1990 and continued to be in service until he was removed from service. On 08.11.2004, when the petitioner was conducting the bus of the respondent Corporation between Miryalguda and Kesavapuram (night-out), the respondent authorities exercised a check, and, having found certain cash and ticket irregularities, they charge-sheeted the petitioner. Not satisfied with the explanation submitted by the petitioner, the respondent Corporation went ahead with the disciplinary proceedings, which eventually culminated in the removal of the petitioner through an order, dated 02.05.2005. Though an intra- departmental appeal was preferred, the same was dismissed as rejected on 24.10.2005, and later, even the revision preferred by the petitioner stood rejected through an order, dated 07.02.2006. Under those circumstances, the petitioner raised an industrial dispute in I.D.No.18 of 2006 before the Labour Court-III, Hyderabad, but even the Labour Court rendered a Nil award on 23.10.2007. Aggrieved thereby, the petitioner filed the present writ petition.
The learned counsel for the petitioner has contended that the respondent Corporation has not examined any witness before enquiry officer, nor has it marked any documents to bring home the misconduct of the petitioner. Thus, without any material support, based on the report of the enquiry officer, the disciplinary authority, contends the learned counsel, has imposed the capital punishment of removal from service on the petitioner in a mechanical manner through the order, dated 02.05.2005. He has further contended that even the appellate and revisional authorities have not chosen to examine the pleas raised by the petitioner. The learned counsel has laid much stress on the fact that even the Labour Court has failed to exercise its powers under Section 11-A of the Industrial Disputes Act, 1947 (the Act for brevity) and has thus, committed a patent jurisdictional error in sustaining the order of the disciplinary authority of removal of the petitioner from service without any material at all. Thus, the learned counsel has urged this Court to set aside the award of the Labour Court and direct the respondent Corporation to reinstate the petitioner with continuity of service and full back wages.
In support of his submissions, the learned counsel for the petitioner has placed reliance on the following decisions: S.K.Sheriff vs. A.P.S.R.T.C. , Y.R.Shetti vs. Depot Manager, A.P.S.R.T.C. and S.Pulla Reddy vs. Depot Manager .
Per contra, the learned standing counsel for the respondent Corporation has strenuously contended that there have been no procedural irregularities during the course of enquiry as has been canvassed by the petitioner. He has further contended that the Labour Court has considered all the aspects and has eventually come to the conclusion that the punishment awarded by the disciplinary authority is not disproportionate and no interference is called for at this stage.
The learned standing counsel has referred to the past conduct of the petitioner, as has been reflected in the counter-affidavit filed by the respondent Corporation. The petitioner is said to have been censured six times and his increments were deferred 25 times. He has further contended that it is the case of issuing used tickets to the passengers, thus causing loss to the respondent Corporation. Since it is a matter of financial irregularity, the conduct of the petitioner is to be viewed strictly and there is no scope for any misplaced sympathy. Accordingly, the learned standing counsel has urged this Court to dismiss the writ petition as devoid of any merit.
In support of his submissions, the learned standing counsel has placed reliance on a judgment of this Court rendered in P.Maheswar Rao vs. Presiding Officer, Labour Court, Karimnagar .
Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Corporation, apart from perusing the record.
Before adverting to the facts of the matter, it is to be placed on record that the primary burden is always on the management of the respondent Corporation to establish its case to sustain the charge of misconduct on the part of the delinquent workman. Since the charges have the potential of visiting upon the petitioner with very grave consequences, such as removal from service, the need of bringing home the guilt of the delinquent is rather onerous during the course of disciplinary proceedings; equally true is the fact that the Labour Court, too, being the final forum of fact ought to be more circumspect than normally it is.
The issue may be appreciated in its proper perspective after examining the charges. The charges that have been framed against the petitioner, as reflected in the charge sheet, dated 25.11.2004, are as follows:
1. For having collected the requisite fare of Rs.4/- from two passengers who boarded at Laxmipuram and alighting at Miryalguda, to whom you have reissued the tickets bearing No.697/942440 to 942441, which were already sold out from Miryalguda Kesavapuram in your UP journey and accounted in S.R.No.018/624742 which constitutes misconduct under Reg.28(xxiii) of APSRTC Employees (Conduct) Reg.1963.
2. For having collected the requisite fare of Rs.6/- from three passengers who boarded the bus at Kesavapuram and alighting at Miryalguda ex-stages 4 to 1 to whom you have reissued the tickets bearing No.397/876583 to 876585 which were already sold out in your UP journey Miryalguda to Kesavapuram and accounted in the S.R.No.018/624742, which constitutes misconduct under Reg.28(xxiii) of APSRTC Employees (Conduct) reg.1963.
It is the case of issuing used tickets to two sets of passengers in the same trip. It is contended by the respondent Corporation, with regard to the first charge, that the petitioner collected the requisite fare of Rs.4/- each from two passengers but issued to them tickets, which had already been issued in the immediately previous trip. Even the second charge is on the same lines to the effect that the petitioner collected the requisite fare of Rs.6/- each from three passengers and issued to them used tickets. The Labour Court examined the explanation submitted by the petitioner in answer to the show cause notice issued by the respondent Corporation in juxtaposition with the spot statement and came to a definite conclusion that the petitioner himself had admitted his misconduct. On this count, the learned counsel for the petitioner has strenuously contended that had it been a case of collecting requisite fare and not issuing tickets, or for that matter issuing used tickets, it is incumbent on the part of the authorities of the respondent Corporation to check the cash, which could have clinchingly shown whether it was a case of the petitioner issuing the used tickets or the passengers themselves, having preserved the previous ones, pressed them into service, when the check was held, only to escape from their own liability. I believe, there would have been some force in the contention of the learned counsel, had it not been for the petitioners initial spot explanation, which gave away the whole faade of defence. In fact, in the spot explanation the petitioner has pleaded with the authorities that he was not in a right frame of mind, but was rather in a state of utter confusion; coupled with that was the fact that the petitioner did not even close the SR. Indeed, in answering point No.1, the Labour Court has observed as follows:
In the spot explanation the petitioner submitted that there were only six passengers in the bus at the time of check. He further submitted that on the previous night he suffered with fever and head ache and as such he did not close the S.R., and that by mistake he issued those tickets which were earlier issued from Kesavapuram to Miryalaguda in the journey to excuse him for committing the said mistake.
It may be further pertinent to observe that even in his explanation in response to the charge-sheet, the petitioner has, once again, pleaded that owing to his mental imbalance he committed a mistake, but it was not intentional.
Examining the authorities relied on by the petitioner, it could be seen that in S.K.Sheriff(1), a learned Single Judge of this Court has held concerning the proportion of punishment as follows:
3. It is not in dispute that the lapse alleged against the petitioner is undoubtedly a misconduct falling squarely within the ambit of regulation 28 of the Andhra Pradesh State Road Transport Corporation Employees (Conduct) Regulations, 1963, namely, issue of used tickets to passengers. He has not denied the allegation that he issued one used ticket to a passenger and collected Rs.0.80. The question is whether, in the circumstances of the case, the alleged act of misconduct warrants the extreme penalty of removal?
In Y.R.Shetti(2), rendered by a learned Division Bench of this Court, their Lordships have held that they apparently had no reason, particularly when they were informed about the past misconduct of the appellant, to find fault with either the judgment of the Labour Court or that of the learned Single Judge. In any event, the Division Bench has examined the case law obtaining on the issue as to the proportionality of the punishment and eventually, modified the order of the learned Single Judge and directed the Corporation to reinstate the petitioner therein with a caution that any repetition of the misconduct on the part of the petitioner should be viewed seriously and it should be open to the competent authority to take suitable action. As such, it is difficult to discern any ratio having been laid down in the decision by the learned Division Bench. Eventually, in S.Pulla Reddy(3), a learned Single Judge of this Court has examined the powers of the Labour Court under Section 11-A of the Act and rendered the findings on the principle of proportionality. On facts, S.Pulla Reddy(3) accords well with the case on hand. Even in that case, it is a matter of reissuing of tickets to four passengers, which was found to be a misconduct on the part of the petitioner therein. In para 9 of the said judgment, it was held:
9. However, in my opinion there is one factor which seems to have escaped the consideration of the disciplinary authority as well as the Labour Court that the tickets issued to those passengers in the earlier trip could have been reissued to them in the subsequent trip only if it was shown that the Conductor had collected them back from those passengers in the earlier trip. It is also inexplicable how the Conductor could be expected to have the knowledge or information that those very passengers would travel by his bus in the subsequent trip so that the same tickets could be reissued to them. This situation, therefore, raises a doubt in regard to the material which has come on record in the form of passengers statements as well as in the form of Conductors statement that the same tickets were reissued to the same passengers in the subsequent trip.
Even with regard to the contention of the learned counsel for the petitioner that there was no checking of the cash with the petitioner, that issue has been dealt with in para 10 of the said judgment, which reads:
10. As regards non-verification of cash, when a question was put to the Inspector in his cross-examination by the workman, the Inspector replied that we have not checked the bus cash since the bus had to proceed to Dobbudupalli. This is an evasive reply. In my opinion, the Inspector should have himself insisted upon the cash verification which could have put a conclusive seal on the guilt of the workman, but by not doing so the alleged misconduct has become susceptible to an enormity of doubt.
I am afraid in the present instance, the above observation may not have any relevance given the fact that the very petitioner has admitted both in his spot statement and later in his explanation that he reissued those tickets, albeit in a state of confusion, etc. On the part of the learned Standing Counsel for the respondent Corporation, he has placed reliance on P.Maheswar Rao(4), a judgment rendered by a learned Division Bench of this Court. In para three thereof, their Lordships have examined the instances of misconduct and the gravity that has been attached to misconduct. Thus, it is profitable to extract the relevant portion of the same, which reads:
(5) Closing the SR without issuing ticket to a passenger from whom the bus fare has already been collected is a deliberate act of misconduct on part of the bus conductor, leaving no scope for any presumption other than the presumption that the delinquent had a dishonest intention of causing wrongful loss to the Corporation and wrongful gain for himself. Such misconduct should be viewed strictly and no interference need be made by the Court of law if the quantum of punishment imposed is in accordance with the disciplinary Rules of the Corporation for that purpose. It is a clear manifestation of the dishonest intention of the delinquent and no leniency could be shown to the culprit; and (6) The defence, if taken by the delinquent that he was about to issue the ticket when the inspecting party raided the bus could also not be treated as a remitting factor unless the margin of time when the bus fare was collected on one hand and the time when the raiding party raided the bus on the other was very narrow.
Indeed, in the present case, on the basis of the above precedents, it could be seen that it is not only the case of issuing the used tickets, be it an allegation of whatever force, it is also a case of not closing the SR. It betrays the intention of the petitioner, since no cogent reason was forthcoming in the name of any explanation on what prevented the petitioner from closing the SR. Further, in the spot explanation, the petitioner, as stated supra, has accepted that he issued those tickets, but he sought pardon of the authorities of the respondent Corporation on the ground that he had been not in a right frame of mind and that he had been ill. In any event, since the illness of the petitioner at the time when he was on duty has not been seriously disputed, it is desirable to have the impugned award slightly modified.
In the above facts and circumstances, without upsetting the findings of the authorities, since the scope of this writ petition does not permit any re-appreciation of the facts and evidence on record, it is appropriate to direct the respondent Corporation to consider the case of the petitioner for fresh appointment, which is without disturbing the impugned award of the Labour Court. The authorities may complete the whole exercise of considering the case of the petitioner for fresh appointment within a period of three months.
With the above observation, the Writ Petition is disposed of. There shall be no order as to costs. As a sequel, the miscellaneous petitions, if any, pending in this writ petition, shall stand disposed of as infructuous. __________________________ (DAMA SESHADRI NAIDU, J) 06th February, 2014