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2014 DIGILAW 448 (AP)

P. G. Shiva Shanker v. APSRTC

2014-03-21

DAMA SESHADRI NAIDU

body2014
Judgment : The petitioner, a conductor in A.P. State Road Transport Corporation (‘the Corporation’ for brevity) filed the present Writ Petition assailing the Award dt. 21.07.2004 in I.D.No.66 of 2002 on the ground that once the Labour Court has found, on appreciation of the material on record, that the petitioner is not guilty of any major misconduct, it ought to have restored every benefit, attendant and consequential to the petitioner in addition to his reinstatement. The facts in brief are that the petitioner was appointed a conductor in the respondent Corporation in 1990 and that later, on 22.06.92, when he was conducting the Corporation bus en route from Pullikal to Rajapur, a check was exercised at stage No.9. Having detected certain cash and ticket irregularities, the authorities suspended the petitioner and issued to him a charge memo. Eventually, not satisfied with the explanation submitted by the petitioner, the respondent Corporation went ahead with domestic inquiry. Based on the inquiry report holding that the charges were proved, the Disciplinary Authority terminated the petitioner from service through Proceedings dated 13.05.1993. When an Industrial Dispute was raised under Section 2-A of the Industrial Disputes Act, 1947 (‘the Act’ for brevity), of the four charges framed against the petitioner, the Labour Court has held proved only Charges No.1 and 4, which constitute minor misconduct, proved. Accordingly it set aside the order of the Disciplinary Authority and directed the reinstatement of the petitioner as a fresh conductor on daily wages. Aggrieved thereby, the petitioner has approached this Court filing the present Writ Petition. Sri V. Narasimha Goud, the learned counsel for the petitioner, has contended that the bus conducted by the petitioner was overloaded with 120 passengers, that about 30 to 40 passengers were also travelling on the top of the bus and that, when the check was conducted, the petitioner was still issuing tickets. Having found the statement to be true, the Labour Court has held that the charges concerning major misconduct were not proved. Despite holding that only minor charges were proved, the Labour Court, strenuously contended the learned counsel, has imposed a punishment of reinstatement without any attendant benefits, much less continuity of service. According to the learned counsel for the petitioner, it is nothing but a major punishment for the alleged minor misconduct. Despite holding that only minor charges were proved, the Labour Court, strenuously contended the learned counsel, has imposed a punishment of reinstatement without any attendant benefits, much less continuity of service. According to the learned counsel for the petitioner, it is nothing but a major punishment for the alleged minor misconduct. The learned counsel has contended that in view of mere reinstatement without continuity of service, the petitioner was relegated to the position of a daily wage employee, though other conductors, who joined along with the petitioner in the 2nd respondent depot had their services regularised in June, 1992. The learned counsel for the petitioner has reiterated that since the alleged misconduct was held to be a minor one, the Labour Court ought to have restored every benefit back to the petitioner, including back wages, at least proportionately. The learned counsel has also submitted that though the petitioner approached the Labour Court with certain delay, once the Labour Court has found it to be a fit matter to be entertained and that the order passed by the Disciplinary Authority grossly disproportionate, it ought not have again fallen back on the issue of delay to deny substantial benefits to the petitioner. In other words, the learned counsel has contended that once the delay is condoned, it shall not have any impact on further proceedings before the Tribunal. Finally, the learned counsel has contended that paying daily wages to the petitioner when the other similarly placed persons had their services regularised would be in violation of Articles 14, 16 and 21 of the Constitution of India. Accordingly, the learned counsel has urged this Court to further modify the Award dated 21.07.2004 of the Labour Court and restore all service benefits, including back wages to the petitioner. The learned counsel for the petitioner in support of his submissions has placed reliance on SHAHAJI V. EXECUTIVE ENGINEER, PWD (2006 SCC ( L&S) 644), GURMAIL SINGH V. PRINCIPAL GOVT. COLLEGE OF EDUCATION AND OTHERS (2001 SCC ( L&S) 105), P. RAJANNA V. LABOUR COURT, GODAVARIKHANI AND ANOTHER ( 2002 (1) ALD 64 (DB), JAI BHAGWAN V. MANAGEMENT OF THE AMBALA CENTRAL COOPERATIVE BANK LIMITED AND ANOTHER ( AIR 1984 SC 286 ), and MOHD. GHOUSUDDIN VS. THE LABOUR COURT, GODAVARIKHANI in W.P.NO.11493 OF 1992, an unreported judgment of this Court, as well as another un-reported judgment of this Court in N.KRISHNAIAH V. A.P.S.R.T.C, rep. GHOUSUDDIN VS. THE LABOUR COURT, GODAVARIKHANI in W.P.NO.11493 OF 1992, an unreported judgment of this Court, as well as another un-reported judgment of this Court in N.KRISHNAIAH V. A.P.S.R.T.C, rep. by its D.M, Medak Division and other in W.P.No.22428 of 2007. Per contra, the learned Standing Counsel for the respondent Corporation has strenuously contested the claims of the petitioner and has submitted that the Labour Court itself ought to have thrown out the industrial dispute raised by the petitioner on the sole ground of laches inasmuch as the petitioner approached it after a lapse of 9 years. It is contended that the petitioner has not explained the delay before the Labour Court by providing sufficient reasons. Though the matter suffered from severe latches, the Labour Court took a lenient view and entertained the matter by exercising its power under Section 11-A of the Industrial Disputes Act, 1947 (‘the Act’ for brevity). The Labour Court ordered only reinstatement of the petitioner as a fresh conductor on daily wage basis, which position the petitioner, in fact, occupied prior to his termination from service. The learned counsel has contended that though the Labour Court has held that Charge Nos.2 and 3 have not been proved, it has however conclusively held Charge Nos.1 and 4, which are significant in scope, have been proved. The learned Standing Counsel has strenuously contended that, having slept over his alleged rights for nine long years, the petitioner has no justification to raise a claim belatedly. Still, despite an equitable Award of the Labour Court, the petitioner further agitating the issue on technicalities cannot be sustained. Adverting the scope of judicial review under Article 226 of the Constitution of India, the learned Standing Counsel has stated that in the first place the order of the Labour Court has been inequitable insofar as the respondent Corporation is concerned. In any event, this Court, contended the learned Standing Counsel, would not be inclined to interfere with the findings of fact and law as had been arrived at by the Labour Court, especially in the absence of any plea of perversity or jurisdictional error raised by the petitioner. Accordingly, the learned Standing Counsel has urged this Court to dismiss the petition. Indeed, the factual matrix is not in dispute. Accordingly, the learned Standing Counsel has urged this Court to dismiss the petition. Indeed, the factual matrix is not in dispute. Consequent upon the check exercised on 22.06.1992 between stages No.8 and 9, while the bus was proceeding from Pullikal to Rajapur, having observed certain cash and ticket irregularities, the respondent Corporation issued a charge sheet with the following charges: i) For having violated the rule issue and start which constitutes misconduct under Reg.28(xxxii) of APSRTC Employees (Conduct) Reg. 1963. ii) For having failed to issue tickets to four passengers, evenafter collecting the requisite fare of Rs.1.50 Ps, each at the boarding point itself i.e., Ieej and were found alighting without tickets at Thuppathrala, ex-stages 8 to 9 which constitutes misconduct under Reg.28(vi) (a) of APSRTC Employees (Conduct) Reg. 1963. iii) For having failed to collect the fare and issue tickets to three passengers, who were found travelling without tickets, having boarded the bus at Jeej and bound for Rajapur, ex-stages 8 to 12 which constitutes misconduct under Reg.28(vi) (a) of APSRTC Employees (Conduct) Reg. 1963. iv) For having failed to close the tray Nos. of all denominations upto stage No.9 i.e., Thuppathrala, which constitutes misconduct under Reg.28 (xxxii) of APSRTC Employees (Conduct) Reg. 1963. Not satisfied with the explanation submitted by the petitioner, the respondent Corporation proceeded with departmental enquiry, which culminated in the Order dated 13.05.193 of the Disciplinary Authority. In fact, holding that all the charges have been proved against the petitioner, the Disciplinary Authority imposed a major punishment of termination from service on the petitioner through Orders dated 13.05.1993. Despite an express provision in the regulations of the Corporation providing for an intra-departmental appeal and also revision, the petitioner did not avail himself of the said remedies. Instead, his conduct was marked by gross inaction from 13.05.1993, when he was terminated, till 2002, after a lapse of 9 years, the petitioner approached the Labour Court. In any event, the Labour Court exercising its statutory powers has condoned the delay and heard the matter on merits, in terms of its power under Section 11-A of the Act. After appreciating the entire material on record, the Labour Court has also found that Charge Nos.2 and 3, which are major in nature, have not been proved. In any event, the Labour Court exercising its statutory powers has condoned the delay and heard the matter on merits, in terms of its power under Section 11-A of the Act. After appreciating the entire material on record, the Labour Court has also found that Charge Nos.2 and 3, which are major in nature, have not been proved. On the other hand, the Charge Nos.1 and 3 which concern the issue and start and also non-closure of S.R have been held to have been proved. Admittedly, those two charges are less grave in nature. In that context, the Labour Court has thought it fit to set aside the order of termination dated 31.05.1993 passed by the Disciplinary Authority and in furtherance thereof, directed the respondent Corporation to reinstate the petitioner as a fresh conductor. To appreciate the contention of the petitioner that the charges said to have been proved against the petitioner are minor in nature and that the reinstatement as a fresh conductor without any attendant benefits is still a major punishment, we may have to briefly examine the factual scenario obtaining from the record. Indisputably, the bus being conducted by the petitioner was packed with 120 passengers, with 30 to 40 passengers sitting on top of the bus. In normal circumstances, it is imperative that the petitioner conductor should start the bus only after issuing the tickets. In the present case, it has come on record that the driver had been compelled by the restive passengers in the packed bus to start the bus, lest they should suffocate. Indeed, the check was exercised when the conductor was in the process of issuing the tickets. Since certain passengers remained to be issued tickets and a couple of passengers had to be given tickets after collection of the fare, the Labour Court has rightly held that the charges concerning the said two instances of misconduct have not been proved. Be that as it may, there is no gainsaying the fact that there was a violation of issue and start in the manner stated above, apart from that of not closing the S.R before reaching stage No.9. In a sense, Charge Nos.1 and 4 are related and emerge out of the same set of facts. In other words, the issue and start regulation would come into picture when all passengers on board have not been issued tickets. In a sense, Charge Nos.1 and 4 are related and emerge out of the same set of facts. In other words, the issue and start regulation would come into picture when all passengers on board have not been issued tickets. Some passengers still remained to be issued tickets; as a natural corollary there could not have been any possibility of closing the S.R. Be that as it may, both the charges, as were found by the Labour Court, had been held proved against the petitioner. In the light of the findings rendered by the Labour Court, two issues emerge for consideration before this Court, namely: i) Whether once the Labour Court has condoned the delay - and such condonation has attained finality, can it turn back and rely on the same delay in considering the gravity of the punishment to be imposed on delinquent workman? ii) Whether the punishment in its modified form as imposed by the Labour Court is shockingly disproportionate to the minor misconduct held to have been proved against the petitioner? Before addressing those issues, there is one minor issue to be dealt with as it was passingly adverted to by the learned Standing Counsel for the respondent Corporation. At the threshold of his submissions, the learned Standing Counsel has contended that the petitioner approached the Labour Court, belatedly though, without exhausting the remedy of appeal and revision provided departmentally. The issue being no longer res integra, the ratio laid down by a three-Judge of the Hon’ble Supreme Court in JAI BHAGWAN (4 supra) may be considered. Examining the provisions of the same enactment i.e., Industrial Disputes Act, when a workman directly approach the Labour Court raising any industrial dispute, without exhausting other remedies provided for in that regard, their Lordships have held as follows: “Raising an industrial dispute is a well recognised and legitimate mode of redress available to a workman, which has achieved statutory recognition under the Industrial Disputes Act and we fail to see why the statue-recognised mode of redress should be denied to a workman because of the existence or availability of another remedy. Nor are we able to understand how an Industrial Tribunal to whom a dispute has been referred for adjudication can refuse to adjudicate upon it and surrender jurisdiction which it undoubtedly has to some other authority. Nor are we able to understand how an Industrial Tribunal to whom a dispute has been referred for adjudication can refuse to adjudicate upon it and surrender jurisdiction which it undoubtedly has to some other authority. While the Government may exercise their discretion in deciding whether to refer or not to refer a dispute for adjudication, the Tribunal to whom the dispute has been referred has no discretion to decide whether to adjudicate or not. Once a reference has been properly made to an Industrial Tribunal, the dispute has to be duly resolved by the Industrial Tribunal. Resolution of the dispute cannot be avoided by the Tribunal on the ground that the workman had failed to pursue some other remedy”. In the light of the above definite pronouncement of the Hon’ble Supreme Court, the said issue need not detain us any longer. The Labour Court exercising its statutory discretion has thought it fit to condone the delay on the part of the petitioner in approaching it raising the industrial dispute. As a matter of fact, the respondent Corporation too has not laid any challenge against the said condonation. Under those circumstances, once the Labour Court examined the charges faced by the petitioner on merits, could it be allowed to resurrect the bogey of delay while its determining the quantum of punishment? Had the respondent Corporation chosen to question the discretion exercised by the Labour Court at the earliest point of time or had the delay occurred while the petitioner approached this Court invoking the public law remedy, the considerations could have been different. In this regard, a learned Single Judge of this Court in an unreported judgment dated 26th day of September, 2013 in W.P.No.22428 of 2007 considered the impact of delayed approach vis-à-vis the punishment to be awarded. Placing reliance on Gurmail Singh Vs. Principal, Government College of Education, and also Shahaji (1 and 2 supra), his Lordship has held, under those circumstances, that it would be appropriate to order not only reinstatement as ordered by the Labour Court but also the continuity of service and attendant benefits, although the delinquent workman shall not be entitled to back wages. Principal, Government College of Education, and also Shahaji (1 and 2 supra), his Lordship has held, under those circumstances, that it would be appropriate to order not only reinstatement as ordered by the Labour Court but also the continuity of service and attendant benefits, although the delinquent workman shall not be entitled to back wages. In Shahaji (1 supra), a Judgment of a learned Division Bench of the Hon’ble Supreme Court, it is held that even if there was delay in making the reference to the Labour Court, if it came to the conclusion that the termination was illegal, it could have suitably moulded the relief to be granted to the workman in view of delay. Further, in Gurmail Singh (2 supra), a cryptic judgement though, their Lordships have held that if the order of dismissal is challenged belatedly, once the dispute subsisted for adjudication, the only measure would be to deprive the back wages for the period of delay in raising such a dispute, if on merits, it was to succeed. In para No.3 of the Judgment, it is held: “Having heard learned Counsel for the parties we find that the Labour Court having held in case of the appellant whose services were terminated on 30.9.1981, that Section 25F of the Industrial Act was violated, was in error in dismissing the reference on the ground of delay as the termination was of 1981 and the dispute was raised in 1989. Similarly, the High Court in the impugned judgment committed the same error in confirming the said decision. The reason is obvious. As laid down by this Court in the case of Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and Anr., if the order of dismissal is challenged belatedly, the dispute would still continue for adjudication, the only question would be to deprive back wages for the period of delay in raising such a dispute if on merits it is to succeed. Following, the said decision, therefore, the appeal is allowed. The judgment and order of the High Court as well as the Labour Court are set aside. The termination of the appellant on 30.9.1981 is held to be bad and set aside. The appellant is ordered to be reinstated in service as Junior Lecturer Assistant with continuity of service. Following, the said decision, therefore, the appeal is allowed. The judgment and order of the High Court as well as the Labour Court are set aside. The termination of the appellant on 30.9.1981 is held to be bad and set aside. The appellant is ordered to be reinstated in service as Junior Lecturer Assistant with continuity of service. But so far as the back wages are concerned, he will not be entitled to any back wages from 30.9.1981 till 27.2.1989 as he had not raised any dispute during that time. Thereafter from 1.3.1989 till the date of reinstatement of the present appellant, on the facts and circumstances of the case, the respondents are directed to pay 50 per cent of the back wages towards full and final satisfaction of appellant's claim, regarding back wages. This amount shall be calculated and paid to the appellant by the respondents within eight weeks from today. He shall be reinstated with continuity in service also within that time. The appeal is allowed to the aforesaid extent with no order as to costs”. In Mohd. Ghousuddin’s case, the fact of the matter is that the Disciplinary Authority passed the impugned order on 02.06.1978 and the workman chose to raise an industrial dispute only on 23.08.1982. The learned Single Judge has held that indisputably there was delay on the part of the workman in raising the industrial dispute and absolutely no plausible explanation as to why and how he could not approach the Labour Court immediately was not provided. This Court, relying on Jai Bhagwan’s case, allowed the Writ Petition, directing the payment of 50% of back wages, apart from reinstatement of the petitioner. On the issue of proportionality of the punishment, the petitioner placed reliance on P. Rajanna (3 supra), a Judgment rendered by a learned Division Bench of this Court. Per the judgment, their Lordships have held that undoubtedly the Labour Court has discretionary power under Section 11-A of the Act to alter or modify the penalty imposed by the Disciplinary Authority, if it is of the opinion that the penalty imposed by the Disciplinary Authority, in the facts and circumstances of the case, is disproportionate to the gravity of the misconduct. It is also a well settled position that this Court, while reviewing the Industrial Award under Article 226 of the Constitution of India, in appropriate cases can exercise the same power, which is available to the Labour Court under Section 11-A of the Act. Thus, the learned counsel for the petitioner, placing reliance on the above observations, has contended that the submission of the learned Standing Counsel that the punishment as was imposed by the Labour Court need not be interfered with cannot be countenanced. Elaborating further, the learned counsel has stated that mere reinstatement as a fresh conductor without any attendant benefits, as well as of continuity of service, apart from denial of back wages, is nothing but a major punishment, which is shockingly disproportionate to the minor misconduct alleged to have been proved against the petitioner. The submission of the learned counsel for the petitioner commends itself to be appreciated by this Court. Adverting to the factual scenario, it has to be seen that the bus was packed with 120 passengers, twice the permissible load of passengers. The petitioner-conductor did not rely on the rule book to pull aside the bus, issue all tickets, account for all the passengers, close the SR and then issue ‘start’ signal. Neither did the petitioner refuse to conduct the bus, since certain passengers were also sitting on the roof top of the bus. One could easily visualize the clustro phobic suffocation about 100 passengers would experience when they were confined to a tin sheet cubic container called a bus in the sweltering summer of June. Accordingly, it is understandable that the passengers compelled the driver to move the bus before the ticketing process could be completed. As a natural corollary, it was impossible for the petitioner to complete the ticketing process, yet he had to signal the bus to move. Under those circumstances, Charge Nos. 1 and 4 were held proved. The petitioner joined the service of the respondent Corporation in 1990 and stood removed from its rolls in 1993. The contention of the learned counsel for the petitioner is that when similarly placed employees had their services regularized, the petitioner has still been struggling as daily wage earner, and that it would offend the fundamental right guaranteed to the petitioner under Articles 14,16 and 21 of the Constitution of India. This contention cannot but be rejected. The contention of the learned counsel for the petitioner is that when similarly placed employees had their services regularized, the petitioner has still been struggling as daily wage earner, and that it would offend the fundamental right guaranteed to the petitioner under Articles 14,16 and 21 of the Constitution of India. This contention cannot but be rejected. Any deprivation effected by due process of law, save to the extent of Article 21 of the Constitution of India, cannot be found fault with. Moving away from the widely believed anti-canon judgement of ADM Jablapur ( AIR 1976 SC 1207 ), the Courts have held repeatedly that if the law is reasonable and has not offended the basic structure, the questions of its violation through a statutory scheme, for example through departmental inquiry, cannot be raised. In any event, as the minor misconduct qua the Charges Nos.1 and 4 was occasioned due to circumstances beyond the control of the petitioner, whose conduct has not been sullied with any mala fidies, the Labour Court ought to have taken a lenient view. Thus, in terms of the ratio laid down by Division Bench of this Court in P. Rajanna (3 supra), this Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution, could as well take recourse to provisions in nature of Section 11-A of the Act or akin thereto. Especially in the light of the ratio laid down by the Hon’ble Supreme Court in Shahajiand Gurmail Singh (1 and 2 supra) as well as this Court in N. Krishnaiah, to subserve the interest of justice, the Award of the Labour Court is further required to be modified. Accordingly, the Petitioner is entitled to 50% of the back wages from 20th June, 1992 i.e., when the petitioner was placed under suspension till 13.05.1993, when the termination occurred on the culmination of disciplinary proceedings. In the light of the ratio laid down in Gurmail Singh (2 supra), the petitioner shall be entitled to benefit of continuity of service without any monetary benefit. Keeping the rest of the Award undisturbed, this Court disposes of the Writ Petition accordingly. No order as to costs. The Miscellaneous Petition, if any, pending in this Writ Petition shall stand Closed.