Judgment : 1. The present writ petition is filed assailing the Award dated 09.11.2005 in I.D.No.16 of 2005 passed by the first respondent-Industrial Tribunal-II, which confirmed the modified punishment earlier imposed by the revisional authority i.e., 3rd respondent. 2. The facts, in brief, are that the petitioner was initially appointed conductor on 25.06.1990 in the respondent Corporation, there afterwards on 15.02.1992 his services were regularized. While he was conducting the bus of the respondent Corporation, on 10.02.1999 a check was exercised by the officials of the Corporation at Stage No.12/11 en route No.3K/17 - from Kushaiguda to Manikeshwar Nagar. Based on what are said to be the irregularities committed by the petitioner-Conductor, on 24.02.1999 a charge memo was issued to him with five charges, apart from placing him under suspension. 3. Later, dissatisfied with the explanation submitted by the petitioner, the respondent Corporation went ahead with the departmental enquiry and eventually the Disciplinary Authority inflicted the punishment of removal from service on the petitioner through an Order dated 16.08.1999, which was taken in intra-departmental appeal by the petitioner. When the said appeal was dismissed through an order dated 17.12.1999, the petitioner further carried the matter in revision before the 3rd respondent. 4. The Revisional Authority of the respondent Corporation, having confirmed the order of removal, taking a sympathetic view, directed the appointment of the petitioner afresh through an Order dated 17.04.2000. Aggrieved by the said Order of the Revisional Authority, the petitioner had the matter referred to the first respondent/Labour Court under Section 10 (1) (c) of the Industrial Disputes Act, 1947 (“the Act for brevity”). Eventually, the first respondent/Labour Court, on appreciation of the entire material, refused to interfere with the order of the Revisional Authority and thus passed a ‘NIL’ Award on 09.11.2005. Questioning the said Award, the petitioner approached this Court by filing the present Writ Petition. 5. In the above factual backdrop, Sri V. Narasimha Goud, learned counsel for the petitioner, has made his submissions primarily on two aspects: the respondent Corporation did not establish the charges during the course of enquiry; and the authorities have mechanically rendered the major punishment of removal from service without any application of mind. The learned counsel, as a matter of an alternative submission, contended that the revisional authority has no power to impose any punishment, which is not specified under regulations. The learned counsel, as a matter of an alternative submission, contended that the revisional authority has no power to impose any punishment, which is not specified under regulations. According to the learned counsel ‘fresh appointment’ is not within the purview of the said authority. Elaborating further, the learned counsel has submitted that, having found that summary removal is unjustified or disproportionate, the revisional authority ought to have reinstated the petitioner. The learned counsel has thus urged that the order under challenge has been vitiated on both counts. 6. The learned counsel, while submitting his arguments about the merits of the matter, has taken this Court through the charges framed against the petitioner, and also certain observations made in the Award concerning the findings that have been arrived at during the course of enquiry. The learned counsel has laid much stress on the aspect that even the very Disciplinary Authority has held that Charge No.3 was not be proved. With regard to other charges, it is submitted that the driver of the bus, who attested the Spot Statements at the time of check, was examined during the course of enquiry. When he did not support the version of the Management, the Corporation has simply abandoned the said witness without subjecting him to cross examination, having called him as a witness on its own. Placing reliance on a judgment in M.V. BIJLANI V. UNION OF INDIA AND OTHERS ( (2006) 5 SCC 88 ), the learned Counsel has contended that without cross examining any particular witness, when he was called to depose on its behalf, the Corporation cannot jettison the witness simply on the premise that the evidence of that particular witness would go against it. 7. The learned counsel has also further submitted that there is no truth in the allegation that the petitioner did not cooperate with the Checking Officials at the time of the check and refused to sign on the spot statements. As it is evident from the explanation submitted by the petitioner at the earliest point of time, contended the learned counsel, the petitioner only requested the authorities to provide the substance of the statement of one of the passengers, who gave his statement in Hindi, the language the petitioner has not been familiar with. As it is evident from the explanation submitted by the petitioner at the earliest point of time, contended the learned counsel, the petitioner only requested the authorities to provide the substance of the statement of one of the passengers, who gave his statement in Hindi, the language the petitioner has not been familiar with. Taking that as a refusal to comply with the direction of the lawful authority, in the words of the learned counsel, cannot be sustained. 8. The learned counsel has further stated that even the driver has initially refused to sign the statements, but later signed under the threat of disciplinary proceedings. When the driver as a witness before the enquiry officer truthfully reiterated the same, the authorities have chosen to jettison him, thus not letting him to be cross examined. With regard to charge No.2, which contains allegations to the effect that the petitioner collected the requisite fare from two of the passengers, but did not issue the tickets, the learned counsel has contended that those passengers have not been examined, and that in the absence of any convincing material on record, a mere allegation may not sustain itself to establish the misconduct of the petitioner. The learned counsel has further placed reliance on an unreported judgment, dt.22.11.2011 of this Court in W.P.No.22365 of 2011, and also a judgment of the Supreme Court in VIJAY SINGH V. STATE OF UTTAR PRADESH AND OTHERS ( (2012) 5 SCC 242 ). With the aid of those decisions, the learned counsel has submitted that the disciplinary authority does not have the power to impose the punishment, which has not been enumerated in the regulations. The effect of those precedents would be considered by and by. 9. Per contra, the learned standing counsel for the respondent has strenuously opposed the claims and contentions of the petitioner and has stoutly supported the award of the first respondent-Labour Court. The learned counsel has submitted that the petitioner has been held guilty of not issuing the tickets after collecting the money, which is nothing but misappropriation of public money. The petitioner has also, contended the learned Standing Counsel, been guilty of insubordination, to wit, not cooperating with the officers on duty at the time of the check. 10. The learned counsel has submitted that the petitioner has been held guilty of not issuing the tickets after collecting the money, which is nothing but misappropriation of public money. The petitioner has also, contended the learned Standing Counsel, been guilty of insubordination, to wit, not cooperating with the officers on duty at the time of the check. 10. The learned Standing Counsel, having taken the Court through the Award passed by the first respondent, has submitted that the Award does not suffer from any legal infirmity, such as perversity or any error apparent on the face of the record. They being the essential parameters of judicial review, the learned Standing Counsel has submitted that the Award in question cannot be disturbed, more particularly, when it has simply reaffirmed the orders of the revisional authority. As his final submission, the learned Standing Counsel has stated that the revisional authority has taken a lenient view in accommodating the petitioner by way of fresh appointment, despite the said authority holding that the charges were proved and no interference was called for. 11. The learned Standing Counsel has further submitted that the disciplinary authority has the necessary leeway in the matter of discipline. Merely on the premise that there could be a possibility of imposing an alternative punishment based on the same set of facts, this Court, while exercising the power of judicial review, would not upset what are otherwise well established and well considered findings of the disciplinary authority. Summing up his submissions, the learned Standing Counsel has submitted that the award does not call for any interference of this Court. 12. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Corporation, apart from perusing the record. 13. To appreciate the rival contentions, it is essential to extract the charges that have been framed against the petitioner through Charge sheet dated 24.02.1999. The said Charges are as follows: “1. For having failed to observe the TIC point at SP Nagar stage No.12. 2. For having failed to issue tickets to a batch of Two passengers found alighting without tickets at Moulali, stage No.12/11 having boarded your bus at Kamalanagar stage No.13/12, even though you have collected Rs.2/- each at boarding point itself as against the actual fare of Rs.2.25 ps. each. 3. 2. For having failed to issue tickets to a batch of Two passengers found alighting without tickets at Moulali, stage No.12/11 having boarded your bus at Kamalanagar stage No.13/12, even though you have collected Rs.2/- each at boarding point itself as against the actual fare of Rs.2.25 ps. each. 3. For having failed to close the tray No. of Rs.2.00, Rs.2.25, Rs.2.50, Rs.2.75, Rs.3.00 denomination from stage No.12 to 11 in the SR. 4. For having refused to attest the passengers statement obtained by the TTIs from the passengers and 43R, 353 issued by the TTIs”. 5. For having failed to cooperative with TTIs and created nuisance and caused much delay to the travelling passengers. 14. Admittedly, charge No.3 has been held not proved. Initially the Disciplinary Authority, through its Order dated 16.08.1999, inflicted the major punishment of removal of the petitioner from service; later the Appellate Authority refused to interfere with it, and accordingly dismissed the appeal through Order dated 17.12.1999. Eventually when the matter was taken in revision, the third respondent passed orders on 17.04.2000 directing the Corporation to appoint the petitioner as a fresh conductor. Having not been satisfied with the revisional order, the petitioner raised an industrial dispute by way of reference under Section 10 (1) (c) of the Act. 15. This Court is conscious of the fact that once the disciplinary authority has rendered certain findings and subsequently they have come to be modified or interfered with in the intra-departmental proceedings, it may not be desirable for this Court to re-appreciate the findings. Having said that, still this Court is required to address a couple of issues, which essentially involve the gravity of the punishment i.e., proportionality of the punishment inflicted by the respondent authorities. In other words, whether, while imposing the punishment even in the modified form, the authorities have omitted to take into account any material on record, or considered any material which was not on record or, still, omitted to consider the impact of any material aspect of the case, would be the question this Court in judicial review poses unto itself. 16. As has rightly been contended by the learned counsel for the petitioner, the singular evidentiary aspect that weighed with the authorities is the statement of the driver, who was examined as a witness at the behest of the Management. 16. As has rightly been contended by the learned counsel for the petitioner, the singular evidentiary aspect that weighed with the authorities is the statement of the driver, who was examined as a witness at the behest of the Management. Without any fear of contradiction, it can be stated that the said witness did not support the case of the Management, and on the other hand, he has stated that he was constrained under the threat of disciplinary proceedings to sign on the spot statements obtained during the course of check. Once he has not supported the case of the Management, he ought to have been declared hostile and ought to have been subjected to cross examination even by the very Corporation. But, the said witness was simply given up by the Management. This course ought to have taken recourse to, if not under the provision of the Evidence Act, which has no application, at least as a matter of equity. 17. In support of the above plea, the learned counsel for the petitioner has placed reliance on M.V.Bijlani’s case (1 supra), wherein his Lordship has held in para No.21 as follows: “While making the enquiry as against the appellant, the enquiry officer made adverse comments about the correctness or otherwise of the statements made by the witnesses examined on behalf of the department without assigning any reason therefore. They were examined by the department. If they deposed falsely, they should have been cross examined. Only because their evidence was totally against the department, the same per se would not mean that they deposed falsely”. 18. With regard to Charge No.2, though the passengers during the course of spot statements deposed that they paid the fare, but were not given the tickets, their evidence remained uncorroborated during the course of the departmental enquiry. During the course of his explanation, the petitioner has stated that though he gave the tickets to them after collecting the fare, and at the time of their alighting, they did not produce the tickets for checking, but pleaded that they lost the tickets. He has further stated that threatening them with penalty, the checking officials obtained signed statements from the said passengers to the dictation of the very officials. 19. If it is a case of not issuing the ticket after collecting the fare, there ought to have been difference in the SR. He has further stated that threatening them with penalty, the checking officials obtained signed statements from the said passengers to the dictation of the very officials. 19. If it is a case of not issuing the ticket after collecting the fare, there ought to have been difference in the SR. In other words, fewer tickets ought to have been issued by the petitioner than the actual number of passengers. From the explanation of the petitioner, which does not seem to have been contradicted, the checking officials did not check the SR, rather refused to check it. Without further ado, it can be said that it is not a case of ticketing irregularity; it is a case of the passengers not producing the tickets on demand, for the authorities have not found any discrepancy in the ticketing position as reflected in SR. 20. Concerning the charge of the petitioner’s refusing to sign the spot statement of the passengers, there was a semblance of justification on the part of the petitioner, who stated that since the statements were given in Hindi, which is unknown to him, he only requested the authorities for the substance of the statement to be given in Telugu before he could sign it. 21. Now, the above issues having been answered thus, it leaves us with only one aspect, i.e., to examine whether the punishment imposed on the petitioner would be sustained. In this regard, what is required to be examined is, apart from the disproportionality, as has been contended by the learned counsel for the petitioner, whether the authorities have power to impose punishment which has not been enumerated in the regulations. In the first place, one has to ascertain whether such a punishment has, in fact, been imposed. A perusal of the order would amply indicate that in the first place the revisional authority has confirmed the punishment imposed by the disciplinary authority, in line with the appellate authority. Despite that, the revisional authority has taken a lenient view, given the past conduct of the petitioner, whose services are said to have been without blemish, and has accordingly directed the authorities to appoint the petitioner afresh. 22. After the confirmation of the punishment imposed by the primary authority, taking a lenient view and providing employment afresh cannot be termed as imposing punishment, much less an unennumerated punishment. 22. After the confirmation of the punishment imposed by the primary authority, taking a lenient view and providing employment afresh cannot be termed as imposing punishment, much less an unennumerated punishment. I venture to add that, while the confirmation of punishment on the delinquent in revision in a quasi-judicial function, the action of the revisional authority directing the appointment of the delinquent as a fresh candidate is by way of exercise of his executive power. As such, I fail to persuade myself to accept the contention of the learned counsel for the petitioner that the Order of the Revisional Authority suffers on account of imposing punishment beyond the scope of the regulations. In fact, the decision cited by the learned counsel for the petitioner at the bar - the Order dated 22. 11.2011 in W.P.No.22365 of 2011 rendered by a learned Single Judge - does not deal with that aspect of non-enumerated punishment, though the relief granted is substantially similar in both cases. In the said case the revisional authority set aside the order of removal of the Petitioner therein and directed his reinstatement as fresh driver on regular basis but without continuity of service and back wages. In that context, his Lordship has observed: “There is no doubt that the rules and regulations of the Corporation do not provide for reinstating him into service as fresh driver.” 23. At any rate the awarding of unenumerated punishment has not fallen for consideration. Even otherwise, it is too well established to be restated that that though an issue may have incidentally fallen for consideration, once judicial cognizance has not been taken of it, the decision rendered on that aspect is said to have been rendered sub silentio. Accordingly, for whatever reason, except to see the parity in conclusion, the said decision may not be a precedent to persuade myself to take the same line. 24. We may as well examine another decision of this Court in K.C.NARAYANA V. MANAGING DIRECTOR, APSRTC, HYDERABAD AND OTHERS ( 2007(5) ALD 416 ). His Lordship Sri Justice Ramesh Ranganathan in that case has observed in para No.2 the factual aspects, which are as follows: “Petitioner a conductor in A.P.S.R.T.C., alleged to have driven the bus unauthorisedly on 13.12.1975 resulting in an accident, was removed from service. His Lordship Sri Justice Ramesh Ranganathan in that case has observed in para No.2 the factual aspects, which are as follows: “Petitioner a conductor in A.P.S.R.T.C., alleged to have driven the bus unauthorisedly on 13.12.1975 resulting in an accident, was removed from service. The appeal preferred by him was rejected by the Regional Manager and thereafter he preferred a Review Petition to the Chief Traffic Manager. The Chief Traffic Manager, in his proceedings dated 18.11.1977, appointed him as a conductor afresh. Aggrieved thereby, the petitioner filed a revision to the 1st respondent on 6-3-1981, but his revision was rejected by the 1st respondent by proceedings dated 16.10.1981. Aggrieved thereby he filed W.P. No. 24155 of 1996 and this Court by order dated 14.11.1996 held that the reasons given by the Reviewing Authority, in dismissing the Review Application, was not correct and that as a matter of fact the petitioner was dismissed from service as he was driving an A.P.S.R.T.C. Bus without any valid license. This Court directed the authority to consider the case of the petitioner on merits by looking into the entire record, within a period of two months”. In that factual back drop, his Lordship has further observed in para 6 of the judgement: “Since the question raised in this writ petition, whether a punishment not prescribed under the statutory regulations could be imposed on a delinquent employee, is a matter which would affect a large number of employees, at the request of this Court, Sri M. Panduranga Rao, learned Counsel appeared as amicus curiae. Learned Counsel would submit that the judgment of this Court in G. Sambasiva Rao's case (supra), was no longer good law in view of the later judgment of the Supreme Court in State Bank of India and Ors. v. T.J. Paul . Learned Counsel would submit that since the Regulations governing employees of the A.P.S.R.T.C., are statutory in nature, the competent authority, while exercising the quasi-judicial powers conferred on him under the statutory rules, was required to strictly adhere to the statutory rules and, since the nature of punishment to be imposed has been specifically enumerated therein, it was not open to the disciplinary/appellate/reviewing authorities to deviate therefrom or to impose a punishment not specifically provided for under the statutory regulations.”. In the light of the above finding, his Lordship directed the reinstatement of the petitioner therein. 25. In the light of the above finding, his Lordship directed the reinstatement of the petitioner therein. 25. Essentially a mere perusal of the above decision would indicate that in the said case, the order of punishment was set aside. In the name of modification of the punishment, instead of reinstatement, fresh appointment was ordered. Reinstatement and fresh appointment being two different modes of bringing the delinquent back in to the fold of service, the latter is more disadvantageous and thus can be termed as a punishment, being a lesser benefit. Under those circumstances it is held that such an unenumerated punishment has not been contemplated in the regulations. Even in the matter of Vijay Singh’s case, their Lordship have observed in para No.11, which is as follows: “Admittedly, the punishment imposed upon the appellant is not provided for under Rule 4 of the 1991 Rules. Integrity of a person can be withheld for sufficient reasons at the time of filing up the annual confidential report. However, if the statutory rules so prescribe, it can also be withheld as a punishment. The order passed by the disciplinary authority withholding the integrity certificate as a punishment for delinquency is without jurisdiction, not being provided under the 1991 Rules, since the same could not be termed as punishment under the Rules. The Rules do not empower the disciplinary authority to impose “any other” major or minor punishment. It is a settled proposition of law that punishment not prescribed under the Rules as a result of disciplinary proceedings cannot be awarded”. In the said case as well, a punishment was imposed which was not enumerated. As the authority was not vested with the power to go beyond the enumerated categories of punishment, the action of the authorities was held to be bad. In any event, insofar as the present factual scenario is concerned, the punishment that has been imposed by the primary authority was not disturbed by revisional authority. But, going beyond the punishment, the authority has taken a lenient view, given the past record of the delinquent workman, and accordingly ordered a fresh appointment, which cannot be found fault with. To that extent, it is held that the respondent authorities do have such power as to provide fresh appointment, despite the punishment attaining finality. 26. But, going beyond the punishment, the authority has taken a lenient view, given the past record of the delinquent workman, and accordingly ordered a fresh appointment, which cannot be found fault with. To that extent, it is held that the respondent authorities do have such power as to provide fresh appointment, despite the punishment attaining finality. 26. The subsequent fresh appointment being of no consequence, the question that still remains to be answered is the proportionality of punishment of removal. It is a truism to state that doctrine of proportionality has come to be well established as one of the composite principles of natural justice, apart from being a facet of the all-pervading Article 14 of the Constitution of India, a la arbitrariness. In the present case neither of the substantive charges can be said to have been proved; in fact, much is left to be desired to bring home the misconduct of the petitioner. Accordingly, it is deemed desirable that the order requires to be modified to that extent. 27. On the count of disobeying the orders of the lawful authority, the petitioner cannot be said to be entirely blameless. Even if the statements of the passengers were in Hindi, the petitioner could have attested them under protest. Further, the explanation submitted by the petitioner for non-closure of SR is not eminently excusable. On these two counts, the petitioner may have to be punished. 28. Therefore, the Award of the Labour Court, the Order, dt.17.04.2000 of the Revisional Authority having merged in it, is modified to the following effect: The order of removal from service, dt.16.08.1999, as confirmed by the subsequent authorities and the Labour Court, is set aside. The respondent Corporation is hereby directed to reinstate the petitioner with continuity of service, the reinstatement taking effect from the date of removal from service. It is, however, made clear that, on the Corporation’s treating the removal period as not spent on duty, the petitioner shall not be entitled to any monetary or other benefits prior to his reinstatement. It is further made clear that since the continuity of service has been granted, the petitioner is entitled to whatever statutory benefits he is otherwise entitled to. With the above direction, the Writ Petition is disposed of. There shall be no order as to costs. Miscellaneous Petitions, if any, pending in this writ petition, shall stand closed.