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2014 DIGILAW 145 (AP)

M. A. Majeed v. Depot Manager, APSRTC

2014-01-31

DAMA SESHADRI NAIDU

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ORDER Dama Seshadri Naidu, J. 1. The petitioner, a conductor in the respondent Corporation, filed the present Writ Petition questioning the Award dated. 03.12.2007 in I.D. No. 130 of 2006, dt. 03.12.2007 of the Labour Court, which confirmed the order of removal passed by the disciplinary authority for the alleged ticketing irregularities said to have been committed by the petitioner. The facts in brief are that the petitioner was initially appointed Conductor on 01.05.1995 in Medchal Depot., and later was transferred to Miyapur Depot. When he was working in Miyapur depot, on 05.09.2002 (sic. 2001), the respondent officials conducted a check at Stage No. 2 of Abids and noticed certain cash and ticket irregularities. On the same day, the authorities have issued a Charge Memo to the petitioner, in response to which the petitioner submitted his explanation on 16.01.2002. Not satisfied with the explanation submitted by the petitioner, the respondent Corporation went ahead with the departmental enquiry and eventually removed the petitioner from service through an Order dated 31.12.2002. The intra-departmental appeal and revision filed by the petitioner were dismissed on 14.02.2003 and 12.07.03 respectively. Aggrieved thereby, the petitioner approached the Labour Court, by raising an industrial dispute in I.D. No. 130 of 2006. The Labour Court, however, returned a Nil Award on 22.08.2007. Further aggrieved, the petitioner approached this Court by filing the present Writ Petition. 2. Based on the above factual backdrop, the petitioner, appearing-in-person, has submitted that though he was charged with the misconduct of reissuing a ticket of `6/- denomination, the authorities have not checked or verified the cash and cash bag to see whether it was an instance of re-issuing of ticket after receiving the requisite fare. The petitioner has also stated that the passenger to whom, it is alleged, the petitioner issued a used ticket, was not examined by the checking officials, but instead, a co-passenger's statement was recorded. Thus, it vitiated the very process of gathering primary evidence with regard to the alleged misconduct. It is the specific contention of the petitioner that though it is not the case of any deficiency in cash or non-issuing of ticket at all, despite his cogent explanation in this regard, the authorities have rejected his explanation in a mechanical manner and proceeded with imposing a pre-determined punishment, which is even otherwise shockingly disproportionate to the alleged misconduct the petitioner has been charged with. 3. 3. The petitioner has taken a specific plea to the effect that a grave punishment was imposed on him based on the solitary statement of a co-passenger, but not the very person, who is said to have been given a used ticket. In any event, neither the passenger, to whom the alleged ticket was given, nor the co-passenger, who gave the statement, was examined during the course of enquiry. Thus, merely based on the self-serving statement of the decking Officials, the Disciplinary Authority, it is contended, imposed the gravest punishment possible by way of removal from service. The petitioner has further contended that even the Labour Court, despite its expansive power under Section 11A of the Industrial Disputes Act ("the Act" for brevity), did not choose to examine the issue in detail, but in a mechanical manner, confirmed the order passed by the Disciplinary Authority. The petitioner appearing-in-person has thus urged this Court to set aside the Award passed by the Labour Court and give a direction to the respondent Corporation to reinstate him with continuity of service and with all other attendant benefits, as well as backwages. 4. Per contra, the learned Standing Counsel for the respondent Corporation has strenuously opposed the claims and contentions of the petitioner. He has stated that since the departmental enquiry cannot be equated with the trial of a civil court, the petitioner cannot insist that the passenger who has given the statement ought to have been examined, and that in the absence of such examination, the whole enquiry stands vitiated. The learned Standing Counsel has also further submitted that the petitioner has been given every opportunity during the course of departmental enquiry to defend himself, but he has failed to countervail the statement of the passenger. The learned Standing Counsel has denied the specific contention of the petitioner that the statement was taken from a co-passenger, but not the passenger to whom the petitioner had reissued the ticket. The learned Standing Counsel has produced the original record and showed the statement of the said passenger. 5. Elaborating on his submissions, the learned Standing Counsel has also stated that the conduct of the petitioner cannot be supported, especially on the ground when the Checking Officials wanted to serve the charge sheet during the spot inspection, he refused to take the same without any justification. 5. Elaborating on his submissions, the learned Standing Counsel has also stated that the conduct of the petitioner cannot be supported, especially on the ground when the Checking Officials wanted to serve the charge sheet during the spot inspection, he refused to take the same without any justification. As such, it cannot lie in the mouth of the petitioner to say that he was not given any fair opportunity during the course of enquiry. Referring to the findings of the Labour Court, the learned Standing Counsel has stated that the Labour Court has meticulously examined all the material that has been placed on record and has come to the eventual conclusion that both the charges have been proved against the petitioner and, accordingly, refused to interfere with the discretion of the disciplinary authority in imposing the punishment of removal from service which, in the opinion of the learned Standing Counsel, is not disproportionate, at least shockingly not disproportionate, to the gravity of the misconduct the petitioner had been charged with. Thus, the learned Standing Counsel has urged this Court to dismiss the Writ Petition. 6. To appreciate the dispute, it is appropriate to extract the charges, which are levelled against the petitioner: (i) For having re-issued a ticket bearing No. 050/493169 of ` 6.50 Ps, denomination to a passenger at his boarding point of KPHB and bound for Koti, ex-states 9 to 1 duly collecting the requisite fare of `6/- at boarding point itself in 21.25 hours, down journey trip, which was already sold and accounted in the sale proceeds vide Sr. No. 6258227, dt. 05.09.2002 at stage No. 7, duly punching on stage No. 4 in UP journey while proceeding from Koti to Lingampalli in 17.45 hours, trip which constitutes misconduct under clause 28 (vi-a) of APSRTC employees (conduct) Reg. 1963. (ii) For having refused to receive the charge memo No. AO/254849, dt. 05.09.2002 from the checking officials of RES/HCR on the spot of check, when detected the above serious cash and ticket irregularities on 05.09.2002 at stage No. 2 at about 23.25 hours, on route No. 225/L, while you were conducting the Bus No. 1658, which constitutes misconduct under Clause 28 (xxxii) of APSRTC Employees (conduct) Reg. 1963. 7. 05.09.2002 from the checking officials of RES/HCR on the spot of check, when detected the above serious cash and ticket irregularities on 05.09.2002 at stage No. 2 at about 23.25 hours, on route No. 225/L, while you were conducting the Bus No. 1658, which constitutes misconduct under Clause 28 (xxxii) of APSRTC Employees (conduct) Reg. 1963. 7. On a perusal of the above charges, it emerges that the first charge concerns itself with re-issuing of ticket of ` 6.50 denomination to a passenger at his boarding point of KPHP bound for Koti. The second charge is concerning the petitioner's refusal to receive the charge memo issued by the Checking Officials. 8. Referring to the first charge of reissuing a ticket, it is to be appreciated that, apart from the statement of the Checking Officials before the Enquiry Officer, the other material that could be found in favour of the Corporation is the statement said to have been issued by one particular passenger. It was contended by the petitioner that the statement was given by a co-passenger, but not by the passenger to whom the ticket was given. On a perusal of the original record produced by the learned Standing Counsel, it is evident that the passenger, who was issued the used ticket, being illiterate, the co-passenger recorded the statement to his dictation, but got it signed by the passenger himself. Thus, to the said extent, the contention of the petitioner that the Enquiry Officer has relied on the statement of a co-passenger cannot be sustained. 9. There is no quarrel as to the proposition that the departmental proceedings cannot be equated with a trial in a Civil Court. Having said that, it is further necessary to state that, once an employee is charged with a major misconduct, having the potential of removal from service, since it has fraught with grave and deleterious consequences, it is essential that the employer has to exercise its power with utmost care in awarding the punishment based on the material gathered during the course of enquiry. In the backdrop of this proposition, which is substantially settled, if one examines the departmental proceedings, what clinches the issue is perhaps the statement of the passenger. 10. It is not the case where the delinquent workman has admitted his misconduct. In the backdrop of this proposition, which is substantially settled, if one examines the departmental proceedings, what clinches the issue is perhaps the statement of the passenger. 10. It is not the case where the delinquent workman has admitted his misconduct. The issue being that of reissuing of a ticket, it is inexplicable as to what prevented the Checking Officials from examining the cash balance to ascertain whether it was a case of deliberate issuance of used ticket after receiving the requisite fair (sic. fare)? Such an obligatory course of action not taken recourse to by the Checking Officials remains unexplained. 11. Once it comes to re-issuing of a ticket, the conductor has to take recourse to either collecting back the ticket from a passenger while he was alighting in the previous trip, or gathering tickets from the floor of the bus prior to reissue. It could have, though not with universal acceptance, made sense had it been in the rural service, where frequency is less. The bus was plying between Kukatpalli Housing Board and Abids. With the level of education and awareness of the commuters, it is difficult to visualise the conductor going on a spree of collecting back the tickets from the passengers alighting. Any amount of suspicion would not equal to an ounce of proof in the sense of common law principle, if not in statutory terms, for the strict application of the Evidence Act has no place in departmental proceedings. 12. At least there should be a satisfaction of the disciplinary authority in terms of preponderance of a probability indicating the misconduct on the part of the delinquent. Leaving aside the statement of the Checking Officials, the solitary statement that has weighed against the petitioner is that of the passenger. With the checking officials and the petitioner-conductor sticking to their stands, the statement of the passenger assumes importance. Needless to say that it is the statement obtained from the passenger at the spot of inspection, and it is in the nature of preliminary material. It is axiomatic that such evidence cannot be relied on unless the maker of the statement is subjected to cross-examination or any other independent evidence being available in corroboration thereof. In some cases, the very statements of the delinquent made at various stages are irreconcilable. It is axiomatic that such evidence cannot be relied on unless the maker of the statement is subjected to cross-examination or any other independent evidence being available in corroboration thereof. In some cases, the very statements of the delinquent made at various stages are irreconcilable. In some other cases, the records, such as SR (statistical report) maintained by the conductor may betray the falsity of the stand taken by the conductor. Under those circumstances, illustrative as they are without being exhaustive, it may not be prudent to insist on examining the passenger, who gave the statement, since his availability is hard to come by. 13. The upshot of the above discussion is that in urban commutation, the frequency of the same passenger travelling by the same bus is more probable. The trickery of reissue could have been taken recourse to either by the conductor, or that of reuse by the passenger, who would as well do everything to save his skin, including giving a statement thus pushing the blame away from him. As such, it is imperative, under those circumstances, that the disciplinary authority have more clinching material at his disposal to hold the conductor guilty. 14. In the absence of any process of the above nature having been taken recourse to, it is difficult to sustain the first charge against the petitioner. Thus, I am inclined to hold that the disciplinary authority has committed error in concluding that the charge was proved. 15. Conscious of the limitation this Court has imposed upon itself while exercising powers under Article 226 of the Constitution, I am of the opinion that if there is any element of perversity on the part of the adjudicating authority/especially the Labour Court, this Court will not shy away from its obligation to rectify the said legal infirmity. On that count, I am of the opinion that the Labour Court has not specifically addressed this issue, of lack of minimum evidence against the petitioner. 16. Concerning the second charge that he has refused to receive the charge Memo dated 5.09.2002, the petitioner could not assign any cogent reason for his action, which in my considered view is an instance of misconduct. 16. Concerning the second charge that he has refused to receive the charge Memo dated 5.09.2002, the petitioner could not assign any cogent reason for his action, which in my considered view is an instance of misconduct. Thus, going by the principles of proportionality, in the face of the first charge having not been proved, imposing the punishment of removal from service for the misconduct of refusing to receive the charge memo is indeed shockingly disproportionate. Thus, this Court proposes to modify the Award of the Labour Court in the following manner: 17. The petitioner shall be reinstated in service with continuity of service, and attendant benefits, but without back wages. With the above direction, the Writ Petition is disposed of. No order as to costs. The miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.