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2013 DIGILAW 945 (AP)

Arava Masthanamma v. Depot Manager, APSRTC

2013-10-31

DAMA SESHADRI NAIDU

body2013
ORDER Dama Seshadri Naidu, J. 1. Heard the learned counsel for the petitioner and the learned Standing counsel for the respondent-Corporation, apart from perusing the record. The present writ petition is filed questioning the award in I.D. No. 103 of 1999 dated 08.05.2002, whereby a direction was given to the respondent corporation to appoint the petitioner as a fresh employee by reducing salary by four annual increments with cumulative effect, apart from directing the petitioner to pay a penalty of ` 2,000/- before the fresh appointment coming into effect. Resultantly, the petitioner was denied continuity of service as well as back wages. It was sought to be declared illegal and arbitrary. 2. The facts, in brief, are that the petitioner, having a small child, went on 01.03.1998 to Rajampet bus depot to apply for leave, but was forced to attend duty in view of shortage of manpower. As she was in a highly disturbed state of mind, while on duty, the petitioner seemed to have committed some clerical errors in noting down the correct ticket position in her S.R. Later the Chief Inspector, after verifying the S.R. at the time of remittance, pointed out that the petitioner had committed certain irregularities in issuing tickets. Based on it, the following charges were framed: 1. For having reissued E. 10 tickets of ` 2.50 denm. Bearing Nos. 509/909670 to 679 in 17.30 hrs., Rajampet-Kothapalli trip in which 1 ticket bearing No. 509/909670 issued at stage No. 1 in 11.40 hrs., Rajampet-Kothapalli trip, 2 tickets bearing Nos. 509/909671 and 672 issued at Stage No. 3 in 12.45 hrs., Kothapalli-Rajampet trip, 1 ticket bearing No. 509/909673 issued at Stage No. 1 in 13.30 hrs., Rajampet-Kothapalli trip, 2 tickets bearing Nos. 508/509674 and 675 issued at Stage No. 1 in 15.30 hrs., Rajampet-Kothapalli trip and 4 tickets bearing Nos. 509/909676, 677, 678 and 679 issued at Stage No. 3 in 16.30 hrs., Kothapalli-Rajampet trip while performing 6.00 hrs., Kothapalli(F) service on 01.03.1998 which constitutes misconduct as per Reg. 28(xxiii) of APSRTC (Conduct) Regulations, 1963. 2. For having defrauded an amount of ` 25,00 (10 tickets) of ` 2.50 denm., reissuing the same which were already sold out in previous trips by showing the wrong issued wrong closing and wrong accounting in the SR A4/7565757 dt. 01.03.1998 which constitutes misconduct as per Reg. 28(x) of APSRTC Employees (Conduct) Reg. 1963. 3. 2. For having defrauded an amount of ` 25,00 (10 tickets) of ` 2.50 denm., reissuing the same which were already sold out in previous trips by showing the wrong issued wrong closing and wrong accounting in the SR A4/7565757 dt. 01.03.1998 which constitutes misconduct as per Reg. 28(x) of APSRTC Employees (Conduct) Reg. 1963. 3. From the record, it is evident that though the petitioner submitted her explanation and later participated in inquiry, eventually the departmental proceedings resulted in the removal of the petitioner from service through order dated 05.08.1998. Aggrieved by the order of the respondent-Corporation dated 05.08.1998, the petitioner raised an industrial dispute before the Industrial Tribunal-cum-Labour Court, Anantapur in I.D. No. 103 of 1999. After appreciating the entire evidence, the Tribunal has felt that it serves the interests of justice, if a lenient view is taken on the petitioner, in the facts and circumstances as have been narrated in the said order. Accordingly, an award was passed setting aside the termination order. However, as a matter of modified punishment, the Labour Court has directed the respondent-Corporation to issue a fresh appointment to the petitioner after reducing her salary by four annual increments with cumulative effect. It is in addition to imposing a penalty of ` 2,000/- on the petitioner to be paid before she joined the service as a fresh candidate. 4. Aggrieved by the award of the Labour Court, the petitioner is before this Court, assailing the same on the grounds inter alia that it is an order passed without proper application of mind. Whatever the benefits that have been given have been nullified by imposing carrier defeating conditions in the name of reduction of four annual increments with cumulative effect and also imposition of penalty. 5. The learned counsel appearing for the petitioner has strenuously contended that both the respondent-Corporation and the Industrial Tribunal have not appreciated the facts in their true perspective, and it has led to perverse finding. He has laid specific emphasis that there has not been much cogent evidence on the part of the respondent-Corporation to establish that the petitioner has deliberately indulged in malpractice causing loss to the Corporation. He has laid specific emphasis that there has not been much cogent evidence on the part of the respondent-Corporation to establish that the petitioner has deliberately indulged in malpractice causing loss to the Corporation. It is contended that the disciplinary authority and the Labour Court ought to have taken into account the explanation submitted by the petitioner as to her confused state of mind, and the trying circumstances, under which the petitioner had been forced to work. That apart, the Labour Court ought not to have placed reverse burden on the petitioner to establish her innocence. On the contrary, the respondent-Corporation, it is contended, has miserably failed to bring home any dereliction of duty on the part of the petitioner resulting in misappropriation of funds. 6. It is the specific contention of the learned counsel for the petitioner that the Labour Court, having accepted that the petitioner's case could be viewed leniently, ostensibly exercising its powers under Section 11A of the Industrial Disputes Act, 1947 ('the Act' for brevity), should have taken the said finding to its logical end. In other words, the Labour Court ought not to have gone beyond its own observations and impose such an onerous punishment, thus deviating from and contradicting its own observation that it is a fit case warranting a very lenient view. 7. Per contra, the learned Standing counsel for the respondent-Corporation has contended that the award passed by the Labour Court does not warrant any interference. The dereliction of duty and financial irregularity committed by the petitioner by issuing reused tickets are apparent on the face of the record. The learned Standing counsel has further contended that the Corporation has given every opportunity to the petitioner by issuing initial show-cause notice and subsequently letting her participate in the departmental proceedings, where she has got every opportunity to lead evidence and dispute the charges levelled against her. It is the case of the learned Standing counsel that despite the opportunity given, she has not placed any evidence nor has she examined any witness to explain the circumstances under which she has committed irregularities as were reflected in the charge sheet. 8. It is the case of the learned Standing counsel that despite the opportunity given, she has not placed any evidence nor has she examined any witness to explain the circumstances under which she has committed irregularities as were reflected in the charge sheet. 8. The learned Standing counsel has also relied on the decision of the Hon'ble Supreme Court in P. Habeen Saheb v. The APSRTC 1995 (1) ALT 553 (D.B.) by laying stress on the fact that the petitioner herein having accepted the order of the Labour Court and joined the post as a fresh candidate, she could not turn back and re-agitate the whole issue. In other words, the contention of the learned Standing counsel is that the petitioner is estopped from raking up the issue, having accepted the benefit under the award. 9. In the said judgment, the Hon'ble Supreme Court has held: 5. The order passed by the Regional Manager consists of two parts. The first part relates to the confirmation of the order of removal. The second part relates to a direction for appointment as a fresh candidate. The Regional Manager has clearly stated that on compassionate grounds, a direction has been issued to appoint the employee as a fresh candidate. So long as the order of punishment stands, it cannot be said that the reviewing authority had either modified the order of punishment or in any other way interfered with it. So long as the order of removal stands, question of claiming the benefit of his past service because of his appointment as a fresh candidate will not arise. In those circumstances, the decisions relied on by the learned counsel have no application to the facts of this case. For the aforementioned reasons, we do not see any reason to interfere with the order passed by the learned single Judge. (Emphasis added) 10. On factual aspect it might be observed that the respondent in the case relied on by the learned counsel for the respondent corporation has faced charges for an offence under Section 302 of I.P.C. Subsequently on conviction at appellate stage, the punishment was modified to one under Section 325 I.P.C., resulting in rigorous imprisonment for one and half years. Under those factual circumstances, the Hon'ble Supreme Court has held that the respondent could not be given any leverage. Under those factual circumstances, the Hon'ble Supreme Court has held that the respondent could not be given any leverage. I am afraid that the ratio laid down by the Supreme Court has no application to the facts of the present writ petition. 11. The learned Standing counsel has also placed reliance on another recent judgment of this Court in W.P. No. 17392 of 2000, rendered by a learned single Judge through order dated 25.06.2013. In the said case, the learned single Judge, having placed reliance on the decisions of Division Bench in P. Habeen Saheb's case (1 supra) and Durgavathi Devi and others v. Union of India 2004 (2) An. W.R. 656 (A.P.) : 2004 (6) ALD 672 , has eventually held: I have carefully considered the material available on record and the submission made by the learned counsel appearing for the parties. It is not in dispute that the present writ petition assails the legality or otherwise of the order dated 16.07.1999 whereunder the petitioner was given the benefit of fresh appointment without any benefit. In view of this and also due to the circumstance that this Court in exercise of its jurisdiction under Article 226 of Constitution of India, firstly, cannot re-appreciate the evidence and come to an independent finding on the alleged misconduct of petitioner and secondly, the removal orders are not assailed in this writ petition. Therefore, for these two reasons this Court has not accepted the contentions urged by the learned counsel for petitioner that the order of removal is without any material and is liable to be set aside. (Emphasis added) 12. From the ratio laid down as extracted above, it is quite evident that the order of removal is no bar for appointing the said workman as a fresh candidate. In the present case too, the Tribunal has accepted the fact that the case on facts warrants that it has to be viewed leniently. In both cases above, the order of removal was not disturbed. Keeping the said order in tact, taking a lenient view, the charged workmen were rehabilitated, so to say, with a fresh lease of career. On the contrary, in the present instance, the order of removal passed by the disciplinary authority was in fact set aside. Consequently, the Tribunal has felt that to serve the interests of justice, the petitioner should be given fresh appointment. On the contrary, in the present instance, the order of removal passed by the disciplinary authority was in fact set aside. Consequently, the Tribunal has felt that to serve the interests of justice, the petitioner should be given fresh appointment. Going by the same reckoning, if it is a fresh appointment, wiping off the entire past career and benefits that had arisen therefrom, it should be viewed as a clean slate without having any blot. In that event, imposing a further punishment of deduction of four increments from a cadre where the petitioner is yet to be born is absolutely onerous and unsustainable. I am afraid that the ratio laid down in the decisions relied on by the learned Standing Counsel has no relevance to the facts of the present case. Even otherwise, in those cases, where fresh appointment was ordered, no further conditions were imposed affecting the fresh career to be commenced on fresh appointment. 13. In the light of the above facts and circumstances, it serves the interests of justice if the order of the Labour Court is further modified by setting aside the direction as to the deduction of four annual increments with cumulative effect, thus leaving the rest of the order in tact. 14. Accordingly, the writ petition is allowed to the extent specified above. No order as to costs. Consequently, miscellaneous petitions pending, if any, shall stand dismissed.