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2012 DIGILAW 894 (AP)

K. B. Swamy v. Labour Court-I, Hyderabad

2012-09-21

NOOTY RAMAMOHANA RAO

body2012
Judgment : This Writ Petition is preferred challenging that portion of the Award dated 16.10.2002 passed by the Labour Court-I, Hyderabad in I.D. No. 235 of 1999 raised by the petitioner herein, which denied him the benefit of back wages, continuity of service and other attendant benefits. The case of the petitioner is that he was recruited to the service of the Andhra Pradesh State Road Transport Corporation (APSRTC) as a conductor some time during 1986 and he had maintained good record of service till the Depot Manager, Falaknuma Depot of APSRTC passed orders on 12.04.1999, imposing the punishment of removal from service. It is stated that on 19.01.1999, he was conducting a bus of the APSRTC plying on route No. 85J on the city outskirts. A check was conducted by the checking officials between stage Nos. 4 and 5, at about 11.15 a.m. and they have noticed two passengers alighting from the bus and when questioned, those two passengers have informed that they paid the necessary fare to the conductor, but the conductor has failed to issue them the tickets. When the rest of the passengers were also checked, the checking officials have noticed that two other passengers were travelling in the bus who have neither tendered any fare to the conductor nor did the conductor issue them the tickets. Therefore, a check report has been prepared. The statements of both the sets of passengers have been recorded and the statements of two other bona fide passengers, who were found travelling in the bus, were also recorded on the reverse of the Statistical return. An adverse report has been filed against the petitioner, as the checking officials could not collect fare from the two passengers, who were found alighting at the time of check, as they do not have any money with them. Insofar as the other two passengers found travelling in the bus without any tickets are concerned, the checking officials have made them pay for the fare and issued two "top punched" tickets to them, indicating that they were issued by the checking officials but not by the conductor. Based upon the adverse report, four different articles of charges have been laid against the petitioner. The first one relates to his failure to issue tickets to two passengers, despite collecting fare of Rs.2.25 ps. From each of them. Based upon the adverse report, four different articles of charges have been laid against the petitioner. The first one relates to his failure to issue tickets to two passengers, despite collecting fare of Rs.2.25 ps. From each of them. The second charge relates to failure of the petitioner to collect the fare and issue tickets to two other passengers, though they have boarded the bus at Chandrayanagutta. The 3rd charge relates to the failure of the petitioner to complete the process of issuing tickets within 'one fare stage' distance and the 4th charge relates to his refusal to receive the imputation memo and attest the statement of the passengers, which constitutes misconduct. A domestic enquiry was conducted and based upon the report of the Domestic Tribunal, the order dated 12.04.1999 has been passed by the 2nd respondent Depot Manager, imposing on the petitioner the punishment of removal from service. The petitioner invoked the provision under Section 2-A(2) of the Industrial Disputes Act, 1947 and raised the Industrial Dispute. At the very outset, it should be recorded that by a docket order passed on 08.09.2000, the learned Presiding Judge of the Labour Court had recorded a finding that the domestic enquiry conducted against the petitioner was vitiated all due to non-supply of enquiry report to him enabling submission of his objections or remarks. I am refraining myself from pronouncing upon the correctness of this order, for the present. On behalf of the management, during the enquiry conducted before the Labour Court, one of the two checking officials, by name Sri R. Siva Ramakrishna Rao working as a Traffic Inspector, Vijayawada Depot has been examined as M.W.1 and 13 documents, including the statistical return (SR) have been exhibited. On behalf of the workman, the petitioner herein examined himself as W.W.1, but he has not marked any documents on his behalf. The Labour Court exercised the power available to it, in terms of Section 11A of the Industrial Disputes Act, as it opined that the punishment of termination from service imposed on the petitioner is disproportionate to the proven misconduct. The Labour Court exercised the power available to it, in terms of Section 11A of the Industrial Disputes Act, as it opined that the punishment of termination from service imposed on the petitioner is disproportionate to the proven misconduct. Consequently, it allowed the claim petition of the workman by setting aside the order of punishment of removal from service and directed the APSRTC management to reinstate the petitioner back into service within one month from the date of publication of Award, but however, denied him back wages and also the benefit of continuity of service and other attendant benefits. The past service prior to the date of termination was, however, ordered to be counted for the limited purpose of terminal benefits only. Significantly, the APSRTC has not chosen to challenge the correctness of the findings recorded by the Labour Court or with regard to the exercise of power carried out by it under Section 11-A of the 1947 Act. The writ petitioner, all through, has been maintaining that a set of four drunken passengers have boarded the bus and they have been quarrelling with him right from the very beginning of their journey. It is during this process, the bus has been checked up by the checking officials in between stages 4 and 5, at about 11.15 a.m. It is true that the checking officials have noticed two of these passengers alighting from the bus. When they were questioned by the checking officials, those two passengers simply stated that they have paid the fare to the conductor, but the conductor has failed to issue them the tickets. When the checking officials carried out the check in the rest of the bus, they noticed that two other passengers have not paid the fare and they have not been issued the tickets either by the writ petitioner. At the time of check, there were 22 passengers found travelling in the bus. 18 of them are possessing the necessary tickets issued by the petitioner and four of them did not have those tickets. Out of four, as was already noticed supra, two did not tender any fare and two others made a statement that they tendered the fare to the conductor, but the conductor failed to issue them tickets. 18 of them are possessing the necessary tickets issued by the petitioner and four of them did not have those tickets. Out of four, as was already noticed supra, two did not tender any fare and two others made a statement that they tendered the fare to the conductor, but the conductor failed to issue them tickets. Every conductor would be supplied with a statistical return (SR) by the APSRTC and he/she is required to make note of the number of tickets sold by him/her by making necessary entries in the said Statistical Return from stage to stage, each denomination wise. The Statistical Return offers a great insight into the number of passengers that have boarded the bus en route and the corresponding revenue earned by the Corporation by way of sale of tickets to them. On the reverse of the Statistical Return, the statements made by two of the passengers' were recorded. One of the passengers name is Sri Ch. Ramesh, who possessed bus pass bearing No. 001942. The other passenger's name is K. Raju, resident of H.No. 18-7-337/21/A1, Saibaba Nagar, Hyderabad. Obviously, these two passengers are not part of the troublesome passengers. They are bona fide passengers. Sri Ch. Ramesh has clearly recorded in his statement that he was travelling from Aliabad in the same bus and he has noticed four passengers, in a drunken condition, getting into the bus at Chandrayanagutta stage and from the moment they boarded the bus, they were quarrelling with the conductor continuously. This passenger has clearly recorded that the conductor was repeatedly asking those passengers to pay for the fare, but however, those passengers were not paying any heed to his request and were quarrelling with the conductor. Most importantly, this passenger has categorically observed that those passengers have not paid any money to the conductor and hence, the conductor did not issue them the tickets. He further observed that in the entire episode, there was no fault on the part of the conductor. The other passenger, Sri K. Raju has stated that he also boarded the bus at Chandrayanagutta stage and that along with him, four other passengers also boarded the bus. When the conductor asked for fare from this passenger, he has exhibited his bus pass. After verifying the bus pass, the conductor has returned the bus pass to him. The other passenger, Sri K. Raju has stated that he also boarded the bus at Chandrayanagutta stage and that along with him, four other passengers also boarded the bus. When the conductor asked for fare from this passenger, he has exhibited his bus pass. After verifying the bus pass, the conductor has returned the bus pass to him. This passenger has also stated that to some other passengers, the conductor has been seen issuing tickets, but however, the four drunken passengers have picked up a quarrel with the conductor. They were pretending as if they do not have money. It is also stated that if the conductor were to insist for tickets, they would get down from the bus immediately. It is at that stage, the check has taken place. This passenger has also clearly stated that there is no fault on the part of the conductor. As was already noticed supra, the Statistical Return (SR) has been marked before the Labour Court as Ex.M1. It is true that two of the troublesome passengers have given their statements implicating the petitioner stating that they have paid the fare to the conductor, but he failed to tender them the tickets. How far the statement of the troublesome passengers should be taken into consideration and relied upon for the purpose of holding the charges framed against the petitioner as established, is a matter of appreciation of evidence on record. Seldom such an exercise is to be indulged in, in a certiorari exercise, except for arriving at the correctness of conclusions drawn by the Labour Court. But however, when the Tribunal has obviously examined this record and then arrived at a finding that the punishment imposed against the petitioner was mostly disproportionate, it ought to have made a proper exercise out of the same. Extraordinary power has been conferred upon the Labour Court/Industrial Tribunal by the Parliament, enabling it to substitute a suitable punishment in case it has come to a conclusion that the punishment imposed by the disciplinary/competent authority is excessive or harsh. Such an eventuality would arise, only if the proven misconduct should not have fetched a grave punishment. In my opinion, this is where the Labour Court has failed to properly carry out the exercise. We have two sets of statements on record. Such an eventuality would arise, only if the proven misconduct should not have fetched a grave punishment. In my opinion, this is where the Labour Court has failed to properly carry out the exercise. We have two sets of statements on record. One set of statements was made by two independent passengers, who have clearly stated that the conductor is not at fault. The four passengers, who are not in a reasonably stable condition, as they were drunk by then, are seen quarrelling with the conductor all through. The fact that a couple of them made a statement implicating the conductor should have been weighed on a proper scale in comparison to the statements made by the two independent passengers. The very fact that two of the passengers have made a statement on their own on the reverse of the statistical return, should have indicated clearly the state of affairs prevailing in the bus at the time when the check was undertaken. It is rather sad that the checking officials have also not properly noticed the condition in which the four passengers are found in the bus. I am also surprised to find that the two passengers, who made their statements in favour of the writ petitioner conductor, have never been bothered to be examined either before the domestic tribunal or before the Labour Court, in spite of availability of their addresses. Obviously, the petitioner has overlooked the favourable component of their statements. For his sheer failure to examine anyone of them, at least the passenger by name Sri K. Raju, who has furnished his complete particulars right beneath his signature made on the reverse of the SR, the petitioner must own some blame. I am convinced that the petitioner has only failed to issue tickets to four passengers, for, they have not tendered him any fare. He had an option to ask the driver to stop the bus and make those four people alight, but he has failed to do that, at the risk of being rude to them. It would only amount to an error of judgment on his part, but it cannot be elevated to the status of a grave misconduct. Therefore, in my opinion, the benefit of continuity of service and other attendant benefits ought not to have been denied to the petitioner at all by the Labour Court. It would only amount to an error of judgment on his part, but it cannot be elevated to the status of a grave misconduct. Therefore, in my opinion, the benefit of continuity of service and other attendant benefits ought not to have been denied to the petitioner at all by the Labour Court. To that extent, the order passed by the Labour Court deserves complete modification. When it comes to the question of making an assessment as to the amount of back wages that should be allowed, when an order of termination from services is set aside, which is not automatic affair, the least that the petitioner should have done was to 'plead and lead' some reasonable evidence to demonstrate that he was not gainfully employed during the interregnum period. I have not found any such exercise indulged in by the petitioner, but however, going by the age factor of the petitioner at the relevant point of time, the prospects of his being engaged elsewhere cannot be completely ruled out. Therefore, a benefit has got to be extended in this regard to the Corporation also. More with a view to balance the competing claims of the petitioner on the one hand and the Corporation on the other, I consider that payment of 50% of the back wages would meet the ends of justice adequately. The learned Standing Counsel for the Corporation strenuously submits that back wages be not awarded at all in the instant case. The Corporation is under a legal obligation to secure punishment to an erring employee of it in accordance with law. In all fairness, it is for the Corporation to have taken into account and consideration the statements made by the two independent witnesses on their own, on the reverse of the Statistical Return. It is rather sad that the two checking officials have not bothered to bring this to the pointed attention of the Depot Manager. Perhaps, if they have done it, the Depot Manager would have hesitated, at the very first instance, to initiate disciplinary action against the petitioner. Even otherwise, the Depot Manager would have surely modulated and regulated the disciplinary control in an appropriate manner and he may have imposed a lesser punishment than that of a removal. Perhaps, if they have done it, the Depot Manager would have hesitated, at the very first instance, to initiate disciplinary action against the petitioner. Even otherwise, the Depot Manager would have surely modulated and regulated the disciplinary control in an appropriate manner and he may have imposed a lesser punishment than that of a removal. For this failure on the part of the Depot Manager, the Corporation cannot completely take advantage and seek to deny the benefit of payment of back wages to the workman, who has succeeded in his efforts. I am conscious that payment of back wages is not a matter of course to follow every order of reinstatement and it has got to be modulated very carefully, but nonetheless, in my opinion, payment of back wages to the extent of 50% is just and reasonable. Therefore, I allow this Writ Petition in part, modifying the Award passed by the Labour Court by directing payment of 50% of back wages, benefit of continuity of service and other attendant benefits. No costs. Consequently, the miscellaneous applications, if any shall stand disposed of.