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2013 DIGILAW 841 (AP)

Depot Manager, A. P. S. R. T. C. v. M. Narasaiah

2013-09-30

ASHUTOSH MOHUNTA, DAMA SESHADRI NAIDU

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Judgment Dama Seshadri Naidu, J. Aggrieved by the order dated 16.11.2010 in W.P.No.4024 of 2008 passed by the learned single Judge, the appellant herein, being the respondent in the writ petition, filed the writ appeal impugning the order in question. 2. Initially the respondent-workman, who is a conductor working in the appellant-Corporation, raised an industrial dispute in I.D.No.86 of 2006 before the Labour Court-III, A.P., Hyderabad, questioning his removal by the order dated 05.06.2006, and seeking a consequential relief of reinstatement as well. The said industrial dispute came to be dismissed on 20.09.2007. 3. Aggrieved by the dismissal of I.D.No.86 of 2006, the respondent-workman filed W.P.No.4024 of 2008 which was allowed by the learned single Judge through order dated 16.11.2010. Assailing the reversal of the order of the Industrial Tribunal by the learned single Judge, the appellant-Corporation filed the present appeal. 4. Before the primary adjudicatory authority, i.e., the Labour Court-III, A.P., Hyderabad, the respondent-workman has averred that ever since his appointment as conductor in the appellant-Corporation, he had been discharging his duties faithfully, that on 30.11.2005 when he was assigned to conduct bus No. AP 10Z 549 on Gujja to Hyderabad route, the Corporation officials exercised a check on the bus and charge sheeted him on 14.12.2005. The charges are as follows: "1. For having collected Rs.3.00 at the place of boarding point itself and issued used ticket bearing No.620/920064 of Rs.6/-deno., (which was already sold and accounted at stage No.13 in STAR No.020/06256) to a passenger who boarded the bus at Malkapuram and alighting at Toopranpet ex-stages 10 to 9, which constitutes misconduct under Reg.28(xxiii) of APSRTC Employees (Conduct) Regulations, 1963. 2. For having issued the tickets bearing No.493/920660 to 666 of Rs.3/- deno., to 7 passengers on sighting the TTIs even after collecting the requisite fare at the place of boarding itself, who boarded the bus at Malkapuram and alighting at Toopranpet ex-stages 10 to 9, which constitutes misconduct under Reg.28(xxii) of APSRTC Employees (Conduct) Regulations, 1963." 5. The respondent-workman has pleaded that though he gave a detailed explanation, after conducting a departmental enquiry, he was removed from service through order dated 05.06.2006. His departmental appeal as well as review petition were dismissed through orders dated 22.07.2006 and 07.11.2006 respectively. 6. The respondent-workman has pleaded that though he gave a detailed explanation, after conducting a departmental enquiry, he was removed from service through order dated 05.06.2006. His departmental appeal as well as review petition were dismissed through orders dated 22.07.2006 and 07.11.2006 respectively. 6. It is the specific case of the respondent-workman that though he issued proper tickets to the passengers, one particular passenger who did not buy the ticket, falsely told the officials at the time of check that he paid the fare of Rs.3/-and purchased the ticket, which he, in fact, picked up from the floor of the bus. He later deposed in enquiry that he did not buy the ticket, but fearing repercussions, he stated thus. Another passenger, who was examined in enquiry, has also deposed that the respondent has issued tickets to all the passengers. Despite the very cogent evidence in support of the respondent-conductor, the authorities have removed him from service. 7. It is the case of the appellant-Corporation that the respondent-conductor reissued a used ticket to one of the passengers and caused pecuniary loss to the Corporation, that he did not issue tickets at the place of boarding, but issued them only when the officials approached the bus for checking, and that as the misconduct is grave, the punishment of removal is justified. 8. On appreciation of the rival contentions, and the material on record, the Labour Court-III, A.P., Hyderabad, confirmed the order of removal through its order dated 20.09.2007. The Tribunal has held that the respondent-conductor did not follow the Corporation norms while conducting the bus, that he issued a reissued ticket to one of the passengers, that the change of the version of the passengers during the course of enquiry would not improve the situation, that the entire version of the respondent was rightly disbelieved by the Corporation in the domestic enquiry, and that, as such, it is not proper to interfere with the punishment awarded by the appellant-Corporation to the respondent-conductor. 9. In W.P.No.4024 of 2008, which was filed by the respondent-conductor, questioning the order dated 20.09.2007 of the Labour Court-III, A.P., Hyderabad, the learned single Judge has discussed all the issues threadbare and allowed the writ petition holding that it was a classic case of perverse findings, completely opposed to the material on record and that the Labour Court did not examine the matter in correct perspective. The learned single Judge while reversing the impugned award, placed reliance on: 1) Usha Breco Mazdoor Sangh vs Management of Usha Breco Limited ( 2008 (5) SCC 554 ) 2) Union of India vs. Gyan Chand Chattar (2010 (1) SCC (L & S) 129. 3) Depot Manager, Andhra Pradesh State Road Transport Corporation vs. Mohd. Ismail ( 1996 (4) ALD 749 ). 4) David Wilson K vs. Secretary to Government ( 2001 (5) ALD 406 ). 5) M.V. Bijlani v. Union of India ( 2006 (5) SCC 88 ). 6) J.K. Synthetics Limited v. K.P.A. Agrawal ( 2007 (2) SCC 433 ). 10. Assailing the order, dt.16.11.2010, of the learned single Judge, the learned Standing Counsel for the appellant-Corporation, has contended that the respondent is guilty of gross misconduct, that it has been duly proved in the domestic enquiry and that the punishment meted out in the form of removal from service is proportionate to the gravity of the offence, the respondent has committed. He has contended that at the time of spot inspection the respondent workman has attested the statements of the passenger. The learned standing counsel has further submitted that, exercising the powers of judicial review under Article 226 of the Constitution of India, the leaned single Judge ought not to have disturbed the findings of fact arrived at by the Labour Court-III, A.P., Hyderabad. He has contended that there is no perversity of findings, much less any error apparent on the face of the record. He has accordingly urged this Court to reverse the order of the learned single Judge and restore that of the Labour Court-III, A.P., Hyderabad. 11. The learned counsel for the respondent-conductor has defended the order of the learned single Judge dated 16.11.2010, submitting that the domestic enquiry conducted by the respondent-Corporation is only ritualistic and that the enquiry officer has ignored vital facts and has arrived at a wrong conclusion. In any event, the punishment of removal from service is grossly disproportionate to the offence the respondent conductor has been charged with. Even the Labour Court-III, A.P., Hyderabad, has not properly applied its mind in examining the issue, but has simply affirmed the findings of the enquiry officer in a mechanical manner. As the Labour Court has not exercised the adjudicatory power vested in it, it has resulted in failure of justice. Even the Labour Court-III, A.P., Hyderabad, has not properly applied its mind in examining the issue, but has simply affirmed the findings of the enquiry officer in a mechanical manner. As the Labour Court has not exercised the adjudicatory power vested in it, it has resulted in failure of justice. As has rightly been held by the learned single Judge, it is not only a case of non-application of the mind, but also case of perverse findings resulting in failure of justice. 12. Heard the respective counsel for the appellant and the respondent, apart from perusing the record. 13. A perusal of the record shows that before the Labour Court, Hyderabad, neither of the parties has led oral evidence, nor have they marked any documents during the course of trial. Essentially, the matter was adjudicated based on the record of enquiry proceedings with the Corporation. Touching upon the powers of the Labour Court under the Industrial Disputes Act, 1947 (the Act of 1947), it is apt to quote Section 11-A: [11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.-Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.] 14. The above provision expressly empowers the Tribunal to set aside the order of discharge to dismissal and direct reinstatement of the workman on such terms and conditions as it thinks fit, once the Tribunal is satisfied the order of discharge or dismissal was not justified from the material on record. The above provision expressly empowers the Tribunal to set aside the order of discharge to dismissal and direct reinstatement of the workman on such terms and conditions as it thinks fit, once the Tribunal is satisfied the order of discharge or dismissal was not justified from the material on record. Now it is to be examined whether the Tribunal has exercised power to the extent permissible under Section 11-A of the Act. 15. It needs no restatement that dismissal or discharge of a workman is fraught with grave consequences, apart from being stigmatic, to say the least. Graver the consequences, the more stringent proof does it call for. There is no inflexible or invariable legal principle that the Labour Court, which is a Tribunal of fact and law, cannot interfere with departmental findings by re-appreciation of the evidence of whatever nature. It is equivalent true that the Tribunal may not interfere with departmental findings only on a simple premise that another view is equally tenable. 16. Referring to the first charge, it is to be appreciated that the very passenger, who gave a statement at the time of spot inspection that he was issued a used ticket, deposed before the enquiry officer that he had not purchased any ticket, but gave the statement during spot inspection being afraid of the consequences of not taking the ticket. Even the T.T.I., the checking official, has admitted during his examination in course of enquiry that there was a chance that an alighting passenger might have thrown the six rupee denomination ticket on the floor of the bus and that might have been picked up by the passenger. This statement may be appreciated in the circumstance that the used ticket was properly punched showing the stages covering the fare of Rs.6/-. Further, it is borne out by record that the passenger did not readily produce the ticket for inspection before the checking officials, but could produce that after a lot of frisking and searching himself for the ticket. In any event, once the passenger himself admitted that he did not buy the ticket and that he had falsely deposed before the checking officials fearing the consequences, penalising the respondent/ workman cannot be justified. In any event, once the passenger himself admitted that he did not buy the ticket and that he had falsely deposed before the checking officials fearing the consequences, penalising the respondent/ workman cannot be justified. The fact that the passenger’s statements are contradictory, and during the course of enquiry he has recanted his earlier statement, cannot detain us from placing reliance on his statement before the enquiry officer. The enquiry officer or the Tribunal ought to have evaluated the relative merits of the contradictory statements of the witnesses, giving benefit of doubt to the respondent/workman. It goes without saying that attesting of the passenger’s statement by the respondent/conductor at the time of spot inspection would not amount to any admission of the contents of the statement, but would only amount to attesting the fact of the passenger giving the statement. Even that incident cannot be taken to the prejudice of the respondent. 17. Referring to the second charge, it may have to be stated that one of the passengers, Sri Mohamed Gouse, being the signatory to the spot inspection, stated during the course of enquiry, that seven of them boarded the bus en route, about one kilometre from Malkapur. He has also stated that as they did not have a requisite ticket fare in change, they tendered a hundred rupee note and that while the respondent/workman was in the process of issuing them tickets, the check took place. Significantly, the T.T.I. too has not contradicted the statement of the said passenger. In the light of the above evidence, the findings of the Tribunal that the respondent violated the rule of issue on start cannot be sustained. In fact, the alleged violation of issue and start was not one of the charges levelled against the respondent/workman under the charge sheet dated 14.12.2005. Thus, it can safely be said that the findings of the enquiry officer of the Corporation and subsequently those of the Tribunal cannot be sustained, as has been rightly held by the learned single Judge. 18. There is no gainsaying the fact that the respondent/ workman has not averred before the Labour Court that he was not gainfully employed during the period that he remained out of service of the Corporation. 18. There is no gainsaying the fact that the respondent/ workman has not averred before the Labour Court that he was not gainfully employed during the period that he remained out of service of the Corporation. In the absence of such an averment, which is a pre-requisite for awarding the benefit of back wages, the learned single Judge has rightly come to a conclusion that though the respondent was entitled to reinstatement with continuity of service and attendant benefits, he could not have the benefit of back wages under the monetary benefits till the date of his reinstatement. 19. In the above facts and circumstances, the well reasoned order of the learned single Judge dated 16.11.2010 in W.P.No.4024 of 2008 does not call for any interference. 20. Accordingly, the appeal is dismissed. No costs. As a sequel to it, miscellaneous petitions, if any pending in this appeal, shall stand closed.