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2013 DIGILAW 1025 (AP)

Devarapalli Subbareddy v. Depot Manager

2013-11-18

DAMA SESHADRI NAIDU

body2013
ORDER Dama Seshadri Naidu, J. 1. The present Writ Petition is filed by the petitioner questioning the Award dated 21.02.2007 in I.D. No. 84 of 2002 passed by the 3rd respondent, as being illegal and arbitrary and being violative of Section 11-A of Industrial Disputes Act, 1947. The petitioner has sought a consequential direction to have him reinstated with continuity of service, back wages and other attendant benefits together with interest at 24% P.A. Facts in brief, as averred by the petitioner, are that he joined the service of the respondent Corporation in 1990 and continuously worked without any remark up to 01.12.2000. On 24.11.2000, a check was conducted and he was charge-sheeted on the ground that he had collected excess fare without issuing tickets, and that he reissued tickets, apart from incidental charges. After due enquiry, the Disciplinary Authority has found him guilty of gross misconduct and eventually passed an order of removal dated 07.04.2001. Aggrieved by the same, the petitioner raised an Industrial Dispute in I.D. No. 84 of 2002 before the 3rd respondent, which was pleased to return a nil award dated 21.02.2007, holding that the petitioner is not entitled to any relief. Aggrieved thereby, the petitioner has filed this Writ Petition. 2. The respondent Corporation has filed its Counter and opposed the claim of the petitioner. It is pleaded that the petitioner was found guilty of gross misconduct and he was removed from service after following the due process. In view of overwhelming documentary evidence placed on record by the respondent Corporation, the 3rd respondent-Labour Court has rightly refused to interfere with the order of punishment imposed by the respondent Corporation. 3. The learned counsel for the petitioner has contended that the Disciplinary Authority has relied on a passenger's statement, which was taken at the time of spot check, and that any statement given by passenger at the spot check could be used as a prima facie evidence for the purpose of forming an opinion to charge the workman and to conduct an enquiry, but it cannot be said to be a substantial piece of evidence to come to a conclusion that the workman is guilty of misconduct. It is further contended that despite cogent explanation given by the workman, the Disciplinary Authority has been swayed by the statement said to have been given by the passenger at the time of spot check. It is further contended that despite cogent explanation given by the workman, the Disciplinary Authority has been swayed by the statement said to have been given by the passenger at the time of spot check. It is the specific case of the petitioner that unless the said passenger was examined during the course of departmental enquiry and he was subjected to cross-examination, his statement could not have had any corroborative value. Thus, the very approach of the Disciplinary Authority is vitiated inasmuch as it has placed reliance on statement of the passenger, which is clearly inadmissible. Accordingly, the learned counsel has also found fault with the observation of the 3rd respondent-Labour Court that the passenger need not be examined in the light of the evidence of checking officials. 4. Learned counsel for the petitioner has further contended that the copies of the documents, such as TTI's Report, were not furnished to the petitioner and that it has resulted in substantial prejudice, disabling the petitioner from taking a proper defence. 5. The learned counsel for the petitioner has also laid stress on the fact that the 3rd respondent has not appreciated the material on record, but has come to a mechanical conclusion based on the findings of the Disciplinary Authority; thus abdicating the expansive jurisdiction conferred on the said authority under Section 11-A of the Industrial Disputes Act, 1947 ("the Act" for brevity). It is further contended that since the Divisional Manager is the appointing authority, the Depot Manager is not competent to remove the petitioner from service. Eventually, the learned counsel for the petitioner, without conceding, has made an alternative submission that even if there were to be any misconduct on the part of the petitioner, the punishment of removal from service is shockingly disproportionate to the charges levelled against him and that the 3rd respondent ought to have interfered with the punishment of removal by suitably modifying the same. There is neither any misappropriation nor mishandling of funds of the Corporation warranting the extreme punishment of removal from service. 6. There is neither any misappropriation nor mishandling of funds of the Corporation warranting the extreme punishment of removal from service. 6. In support of his contentions, the learned counsel for the petitioner has placed reliance on the following judgments of the Hon'ble Supreme Court and also this Court: A.L. Kalra v. Project and Equipment Corporation of India Limited (1984) 2 SCC 316, Union of India and others v. Prakash Kumar Tandon (2009) 2 SCC 541 , Roop Singh Negi v. Punjab National Bank and others (2009) 2 SCC 570 , K. David Wilson v. Secretary to Government, Law Department (Legislative Affairs and justice), Hyderabad 2001 (5) ALT 65 (DB) and S. Pulla Reddy v. Depot Manager, APSRTC, Cuddapah Dist and another1997(2) An. W.R. 126 : 1997 (2) ALD 558 . 7. The learned Standing Counsel, on the other hand, has contended that the Award passed by the 3rd respondent-Labour Court does not call for any interference. He has strenuously contended that the petitioner has categorically admitted that the procedure adopted during the course of domestic enquiry was proper by filing a Memo dated 09.02.2007. Now, in the light of the said memo, the petitioner cannot turn back and assail the very same proceedings. The learned Standing Counsel has also further contended that the Labour Court has undertaken an elaborate exercise of appreciating the rival contentions of both the parties and has eventually arrived at a just conclusion of affirming the findings of the Disciplinary Authority. 8. Specifically answering the contentions raised by the learned counsel for the petitioner that the Disciplinary Authority has solely relied on the statement given by a passenger at the time of spot check, the learned Standing Counsel has submitted that, keeping aside the said statement of the passenger, the Corporation has brought on record abundant material, apart from the oral testimony of the checking officials, which conclusively holds that the petitioner is guilty of gross misconduct. In support of her contentions, the learned Standing Counsel has placed reliance on the decisions of the Hon'ble Supreme Court in M.P. Electricity Board v. Jagadish Chandra Sharma (2005) 3 SCC 401 , and Kalyan People's Co-operative Bank Limited v. Dulhanbidi Aqual Aminsaheb Patil and others AIR 1966 SC 1072 . 9. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Corporation, apart from perusing the record. 10. 9. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Corporation, apart from perusing the record. 10. The record reveals that a check was exercised on 24.11.2000 at stage No. 13 while the petitioner was conducting the bus en route S. Konda-Patchava. Having found certain cash and ticketing irregularities, the inspecting officials issued charge Memo to the petitioner seeking his explanation. 11. The charges are follows: 1. For having collected ` 4/- each from 4 passengers who boarded the bus at Kamepalli and bound for Patchava and issued the ticket Nos. 244/567070, 069 and 076 which were already issued from Patchava to S. Konda in 12-30 hrs trip and recorded in SR against stage No. 13 committed fraud ` 16/- which constitutes misconduct under Reg. 28 (xxiii) of APSRTC Employees (Conduct) Reg. 1963. 2. For having collected ` 4/- from a passenger who boarded the service bus at Kamepalli and bound for Patchava but failed to issue valid passenger tickets in accordance with the Circular instructions issued from time to time and violated the rule issue and start which constitutes mis-conduct under Reg. 228 (vi) (a) of APSRTC Employees" (Conduct) Reg. 1963. 3. "For having closed the SR of all denominations upto stage No. 13 without issuing correct valid passenger tickets which constitutes misconduct under Reg. 28 (xxxi) of APSRTC Employee's (Conduct) Reg. 1963". 12. Though the petitioner has submitted his explanation to the charges levelled against him, as his explanation was not satisfactory, the respondent Authorities have conducted a domestic enquiry by giving due opportunity to the petitioner to defend himself. Once the enquiry officer has found that the charges were proved, a final show cause notice was issued to the petitioner seeking his explanation, and later by an Order dated 07.04.2001, the Corporation has removed the petitioner from service. 13. During the course of enquiry, the respondent Corporation marked Exs. M. 1 to M. 20, placing on record the entire material evidence, including the statements given by the checking officials before the Disciplinary Authority. 13. During the course of enquiry, the respondent Corporation marked Exs. M. 1 to M. 20, placing on record the entire material evidence, including the statements given by the checking officials before the Disciplinary Authority. Addressing the issue raised by the learned counsel for the petitioner that the Disciplinary Authority ought not to have placed reliance on the statement of the passenger given at the time of spot check, without subjecting the said passenger to further examination during the course of departmental enquiry, it may be stated that there is some force in the contention of the learned counsel for the petitioner. It, however, requires to be examined whether the entire misconduct was based on the statement of the said passenger alone or there is any other material brought independently by the respondent Corporation to sustain the charges. In this regard, the 3rd respondent-Labour Court has undertaken a very detailed exercise. Initially the petitioner contended that those passengers who had shown the tickets, which were alleged to have been re-issued, did not take any tickets from him, but probably they picked up the tickets from the floor of the bus. But, subsequently, at the time of presenting his explanation for the charges levelled against him, the petitioner has contended that while he was taking tea at the hotel, those passengers boarded the bus without his notice, that they did not take tickets, much less paid any fare, and that, at the time of the check, they picked up the tickets from the floor of the bus. In the written statement, however, the petitioner has given up that stand and has not even referred to the fact those passengers boarded the bus without his knowledge. 14. Another anomaly in the version of the petitioner is that, taking a de tour from his earlier versions, in his explanation, the petitioner has also stated that while in the process of issuing tickets, the check took place and as such, he could not issue tickets to those passengers. There is any amount of contradiction in his versions that those passengers got onto the bus while he was taking tea, that those passengers did not buy tickets, but picked up the tickets from the floor of the bus at the time of check, and that while he was issuing tickets the check took place and that he could not complete the issuing process. 15. 15. In fact, the last statement was falsified on the ground that by the time the check was conducted, the petitioner closed his SR with all ticket numbers. Eventually under these circumstances, the Disciplinary Authority and also the 3rd respondent-Labour Court have concurrently held that the petitioner did collect money from five passengers and deliberately reissued used tickets. 16. Addressing the authorities relied on by the petitioner, it may be stated that the Hon'ble Supreme Court in A.L. Kalra (1 supra) has observed that an order imposing penalty by a quasi-judicial tribunal must be supported by reasons in support of its conclusions, that speaking order will at its best be reasonable and at its worst be at least a plausible one. If reasons for an order are given, there will be less scope for arbitrary or partial exercise of power. 17. In the present case, a perusal of the Award passed by the 3rd respondent would amply indicate that the Tribunal has addressed the very issue and gave its finding based on the material on record. As such, it is to be held that the ratio laid down by their Lordships in A.L. Kalra (1 supra) has no application to the present set of facts. 18. Adverting to another citation relied on by the learned counsel for the petitioner in Prakash Kumar (2nd supra), it may have to be stated that the ratio of the said decision is that the principles of natural justice demand that an application for summoning a witness by the delinquent officer should be considered by the enquiry officer. It was obligatory on the part of the enquiry officer to pass an order either allowing or disallowing the request of the delinquent to summon a particular witness, lest it should result in causing prejudice to the delinquent officer. In this case, I am afraid, there is no such application made by the petitioner. Even otherwise, keeping aside the statement of the said passengers given at the time of spot check, ample material is available to hold that the petitioner has been guilty of misconduct as was charged by the respondent Corporation. 19. In this case, I am afraid, there is no such application made by the petitioner. Even otherwise, keeping aside the statement of the said passengers given at the time of spot check, ample material is available to hold that the petitioner has been guilty of misconduct as was charged by the respondent Corporation. 19. In Roop Singh Negi (3rd supra), the Hon'ble Supreme Court has underlined the importance of evidence collected during investigation by the Investigating Officer, It was held that the evidence that was collected at the preliminary stage could be used as prima facie evidence to come to a conclusion whether to proceed further with the allegations levelled against the officer, but it cannot be used as a substantive piece of evidence. 20. In the present case, it bears repetition to state that the statement of the passenger was not used as any substantive piece of evidence. In the opinion of the 3rd respondent Tribunal, even in the absence of the said statement, the findings arrived at could not have been different either before the Disciplinary Authority or before the Labour Court itself. 21. The learned counsel for the petitioner has also placed reliance on K. David Wilson (4th supra) rendered by a Division Bench of this Court. The ratio of the said decision is on the same lines as was decided in Roop Singh Negi (3rd supra); as such, it does not inspire any specific reference or illustration. Finally, the learned counsel for the petitioner has placed reliance on S. Pulla Redely (5th supra), decided by a learned Single Judge of this Court. The learned Counsel stated that even charges are identical and the ratio laid down therein amply bears on the present case. In the light of the said statement, it may be profitable to examine the facts of the said case to see whether it has any bearing on the present set of facts or not. 22. In S. Pulla Reddy (5th supra), too, the charges are more or less similar, as the principal charge is with regard to re-issue of tickets. After evaluating the entire material on record, the learned Single Judge has observed in Paras No. 9 and 10 of the judgment as follows: 9. 22. In S. Pulla Reddy (5th supra), too, the charges are more or less similar, as the principal charge is with regard to re-issue of tickets. After evaluating the entire material on record, the learned Single Judge has observed in Paras No. 9 and 10 of the judgment as follows: 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 Conductor's statement that the same tickets were reissued to the same passengers in the subsequent trip. 10. As regard 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. 23. Having found that under the said situation, it is incumbent upon the Court to take a liberal view, the learned Single Judge has further examined the regulations of the Corporation and observed as follows: 12. The APSRTC (Classification, Control and Appeal) Regulations, provide for penalties to be imposed. Clause (viii) of Sub-regulation (1) of Regulation 8 provides for removal from service of the Corporation which does not disqualify from future employment. This is one of the penalties which could be imposed upon an employee for good and sufficient reasons as provided in Regulation 8 of the aforesaid Regulations. Clause (viii) of Sub-regulation (1) of Regulation 8 provides for removal from service of the Corporation which does not disqualify from future employment. This is one of the penalties which could be imposed upon an employee for good and sufficient reasons as provided in Regulation 8 of the aforesaid Regulations. Sub-regulation (2) of Regulation 9 provides for the circumstances under which penalties of removal from service may be imposed as narrated in Clauses (a) to (h). Since misconduct is stated to be one of the grounds on which an employee could be removed from service, the petitioner's removal from service cannot be denied to be falling within the purview of the rules and regulations of the respondent-Corporation. However, the two factors have to be kept in view viz., (1) Non-verification of cash, and (2) improbability of the act of reissuing the tickets to the same passengers who had allegedly travelled in the same bus in an earlier trip. These in my opinion are the two mitigating factors which warrant the necessity of recording a finding that the punishment in the instant case was disproportionate to the misconduct proved; taking a clue from the three rulings of this High Court cited above. 24. Based on the above, if at all this Court, the learned counsel for the petitioner has contended, comes to a conclusion that the findings of misconduct cannot be interfered with, the punishment awarded in the form of removal from service is grossly disproportionate and it requires reconsideration in the light of S. Pulla Reddy (5th supra). 25. In Jagadish Chandra (6th supra), relied on by the learned Standing Counsel, their Lordships have held that the Tribunal-Labour Court cannot interfere with the quantum of punishment based on irrational or extraneous factors and certainly not on what it considers a compassionate ground. It is further held that the jurisdiction vested with the Labour Court to interfere with the punishment is not to be exercised capriciously or arbitrarily, and that in case Labour Court finds the charge proved, only on a conclusion to be arrived at that the punishment was shockingly disproportionate to the nature of the charge found proved, can it proceed to reduce the punishment. The learned Standing Counsel has further asserted that even while exercising the power under Article226 of the Constitution of India, it can be only on the well-entrenched principles of judicial review, including the one of proportionality. According to the learned Standing Counsel, none of them is present. 26. The learned Standing Counsel has also placed reliance on Dulhanbidi Aqual Aminasaheb Patil (7th supra), wherein the Hon'ble Supreme Court has held that the question of proof is a question of procedure and is capable of being waived and therefore evidence taken in a previous judicial proceeding can be made admissible in a subsequent proceeding by consent of parties. This applies to proceedings of a civil nature. While what is not relevant under the Evidence Act cannot in proceedings to which Evidence Act applies, be made relevant by consent of parties, relevant evidence can be brought on the record for consideration of the court or the Tribunal without following the regular mode, if parties agree. The reason behind this rule is that it would be unfair to ask any party to prove a particular fact when the other party has already admitted that the way it has been brought before the court has sufficiently proved it. 27. Evidently, the learned Standing Counsel would like to stress the aspect that since the petitioner has filed a Memo, which is referred to above, admitting that the Departmental Enquiry was conducted in accordance with law and since the statement of the passenger taken at the time of spot inspection was placed on record prior to filing of the memo, perhaps the learned Standing Counsel has meant that now the petitioner is estopped from questioning the same. In the first place, filing of memo before the Labour Court would not preclude the delinquent from assailing any substantive short-coming in the departmental enquiry falling foul of the principles of natural justice, for there could not have been any waiving off a fundamental right a la the principles of natural justice causing prejudice. In any event, in the light of the observations made herein that even ignoring the statement of the passenger, there is further material placed on record by the Corporation before Disciplinary Authority/Enquiry Officer and also before the Labour Court, it may not be necessary to examine this proposition of law. 28. In any event, in the light of the observations made herein that even ignoring the statement of the passenger, there is further material placed on record by the Corporation before Disciplinary Authority/Enquiry Officer and also before the Labour Court, it may not be necessary to examine this proposition of law. 28. On appreciation of the authorities placed reliance on by both the counsel for the petitioner as well as learned Standing Counsel for the Corporation, in my considered opinion, the facts as obtained in S. Pulla Reddy (5th supra) are substantially similar to those in the present case. 29. In fact, the learned Single judge, having elaborately appreciated the facts as well as the law obtained on the said issue, has eventually concluded that the order of removal is disproportionate and requires modification to meet the ends of justice. 30. I am in respectful agreement with his Lordship that in the present case too the respondent Corporation could not establish conclusively that there is any reissuing of tickets on the part of the petitioner. Given the length of service and his past track record, it behaves that substantial ends of justice would be well served if the Order of removal is modified. This Writ Petition is therefore partly allowed inasmuch as the Order of removal from service dated 07.04.2001, as confirmed by the 3rd respondent-Labour Court in its Award dated 21.02.2007 is quashed and set-aside. The respondent Corporation is directed to reinstate the petitioner in service, but without back wages and without any continuity in service. The petitioner shall be reinstated in service not later than 6 weeks from the date of receipt of copy of this Order. No order as to costs. The miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.