THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.22310 OF 2002 O R D E R Heard both the counsel. 2. Aggrieved by the award dated 18.1.2002 passed by the Industrial Tribunal – cum – Labour Court, Anantapur in I.D.No.23/1999 in conﬁrming the order of removal dated 1.12.1998 passed by the Depot Manager, Hindupur Depot, Andhra Pradesh State Road Transport Corporation, the petitioner who was working as Conductor in the Corporation prior to his removal, ﬁled the present writ petition. 3. The petitioner was working as conductor in the respondent – Corporation. On 10.3.1997 when the petitioner was conducting on the route Hevathi to Rolla, the Regional Enforcement Squad exercised a sudden check and found cash and ticket irregularities and after recording the statement of the passengers and the petitioner on the spot, issued charge memo. Based on their report, the Corporation issued the charge sheet with the following charges: 1. For having failed to observe the rule ‘issue and start’ which constitutes misconduct under Reg.28(xxxi) of A.P.S.R.T.C. Employees (Conduct) Regulations, 1963. 2. For having collected Rs.2/- each from 4 (four) passengers and failed to issue tickets who boarded the bus at Morabagal and bound for Maddanakunta ex-stages 2 to 2/3. T he actual fare is Rs.4/- each but you have collected Rs.2/- each from the four passengers and allowed to travel free up to Maddanakunta which is unauthorized stage as the said stage is not shown in the MD-141 Card, which constitutes misconduct under Reg.22(vi)(a) & (x) of A.P.S.R.T .C. Employees (Conduct) Regulations, 1963. 3. For having violated the rule and failed to observe and follow 141 Care Card, while you were performing duty on the said date, which constitutes misconduct under Reg.28(xxxii) of A.P.S.R.T.C. Employees (Conduct) Regulations, 1963. 4. For having failed to collect the fare of Rs.10/- each and issue tickets to three (3) passengers (individual) who boarded the bus at Morabagal and bound for Rolla ex-stages 2 to 6, which constitutes misconduct under Reg.28(vi)(a) of A.P.S.R.T.C. Employees (Conduct) Regulations, 1963. 5. For having closed the tray numbers of all denominations upto stage no.2 without completing the above ticket issues, which constitutes misconduct under 28(vi)(a) of A.P.S.R.T.C. Employees (Conduct) Regulations, 1963. 6. For having issued the ticket no.570/771574 to 592(E-19 of Rs.10/- denm., and also the ticket nos.321/285936 to 939 (E4) of Rs.4/- denm., without punching the said tickets to passengers in the bus though the same tickets were shown to have been sold out and accounted against stage no.1 vide S.R.No.0351540, which constitutes misconduct under Reg.28(vi)(a) of A.P.S.R.T.C. Employees (Conduct) Regulations, 1963. 7. For having opened the Rs.10/- denm., tickets no.570/771500 and also closed against the stage no.1 in the S.R.No.0351540 and not shown the said ticket block from stage nos.6 to 2 in the said S.R. and also the S.R. No.0351539 which constitutes misconduct under Reg.28(xxxii) of A.P.S.R.T.C. Employees (Conduct) Regulations, 1963. 4. The petitioner did not ﬁle any explanation to the charge sheet. A domestic enquiry was conducted in this regard. During the enquiry, on behalf of the corporation, S.Kullayappa, TTI and B.Seetharam, STI were examined and the petitioner cross-examined them and he did not adduce any evidence. Based on the material on record, the enquiry oﬃcer submitted report holding the petitioner guilty of the charges leveled against him. The respondent considering the report of the enquiry oﬃcer, passed the orders of termination on 1.12.1998 and without exhausting the remedies of appeal and review, the petitioner raised industrial dispute and the Tribunal by the impugned award, conﬁrming the order of removal and rejected the I.D. Challenging the same, the present writ petition is filed. 5. The case of the petitioner as stated in the aﬃdavit ﬁled in support of the writ petition and also as contended by the counsel for the petitioner is that the enquiry oﬃcer did not conduct the enquiry by adhering to the principles of natural justice and submitted report holding the petitioner guilty without considering the evidence and material on record. With regard to charge no.2 it is stated that the petitioner was insisting the two passengers to pay the balance fare of Rs.4/- each as the amount of Rs.2/- paid by them was not suﬃcient and that he made them to get down and during that process, checking oﬃcials entered into the bus and made the passengers to state as per their dictation and to prove the said charge, the management did not choose to examine the passengers and that except the statement of one of the checking oﬃcial, there is no independent evidence on record. With regard to other charges it is stated that it is a case of not issuing tickets and not collecting the amount and there is no misappropriation and dishonest intention and hence it has to be treated as minor lapse. It is stated that the ﬁnancial involvement is only Rs.8-00 and Rs.10-00 and for the minor lapse, when there is no dishonest intention, imposing the punishment of removal from service is disproportionate. In support of this contention, the learned counsel for the petitioner relied on the judgment of the learned single Judge of this court in W.P.No.17118/2008 dated 7.8.2008. He submitted that the Labour Court failed to exercise the jurisdiction under Section 11-A of the Industrial Disputes Act, 1947 and hence this court under Article 226 of the Constitution of India, can exercise the jurisdiction and order reinstatement of the petitioner with consequential beneﬁts. In support of this contention, the learned counsel for the petitioner relied on the judgment of the learned single Judge of the High Court of Madras in ANNA TRANSPORT CORPN. LTD. v. P.O., LABOUR COURT [1]. With these averments, the award of the Labour court was sought to be set aside. 6. No counter affidavit is filed. 7. The learned counsel appearing for the respondent – Corporation contended that the charges leveled against the petitioner are proved in the domestic enquiry and the Labour Court by re-appreciating the entire evidence, conﬁrmed the order of the disciplinary authority and in these circumstances, this court under Article 226 of the Constitution of India, cannot interfere with the ﬁndings of fact and as the petitioner indulged in the cash and ticket irregularities and as they were proved beyond reasonable doubt, he was removed from service. With these averments, she sought to dismiss the writ petition. 8. In the present case, though the petitioner did not choose to submit his explanation to the charge sheet, participated in the enquiry. Therefore, the ground that the enquiry was conducted in violation of the principles of natural justice, cannot be countenanced. 9. From the charges extracted above, except the charge no.2 the other charges are with regard to violation of the rules and no mis-appropriation of the amount is alleged and it amounts to not collecting the fare and not issuing the tickets. With regard to charge no.2, the petitioner is charged for having collected Rs.2- 00 each from four passengers and failed to issue tickets who boarded the bus at Morubagal and bound for Maddanakunta ex-stages 2 to 2/3, though the actual fare is Rs.4/- each and thus allowed to travel them free up to Maddanakunta which is an unauthorized stage. The checking oﬃcial who participated in the check deposed before the enquiry oﬃcer that he checked the bus at stage no.2/3 i.e., Thimmalapuram and found four passengers without tickets even though they paid Rs.2- 00 each to the conductor at the boarding point i.e., Morubagal and traveling up to Madannakunta ex-stages 2 to 2/3; that the conductor collected Rs.2-00 instead of Rs.4-00 each from the four passengers but failed to issue them tickets; that even though there was no stage at Muddanakunta as per MTD 141, the conductor allowed the passengers to travel in the bus without tickets; that the service happened to be special service and the minimum charge in the service would be Rs.4-00 and as the passengers were not having money with them, the TTIs have taken TPT for Rs.8-00 which was paid to the conductor. Therefore, from the evidence of the checking oﬃcial, the petitioner has permitted to travel four passengers by collecting Rs.2-00 each without issuing tickets, when the minimum fare was Rs.4-00. However, as the passengers were not having money with them, the TTIs have taken TPT for Rs.8-00. The petitioner who was also examined before the enquiry oﬃcer though deposed that he asked the passengers to get down the bus as there is no stage at Maddanakunta, the passengers forcibly gave Rs.8-00 stating that the health of their boy was not good. Further in the spot statement, which was written by the petitioner, stated that they gave Rs.2-00 each at the boarding point itself and were traveling upto stage no.2/3. Therefore, the evidence on record proved charge no.2 against the petitioner. 10. The charge no.3 is with regard to violation of MTD 141 fare card, is not proved by the management. The other charges i.e., charge nos.1, 4, 5, 6 and 7 are concerned, they are the violation of the rule ‘ issue and start’ and not collecting the amount and not issuing the tickets. However, they are proved in the enquiry beyond reasonable doubt and this court cannot interfere with the said ﬁndings, which are based on evidence. But at the same time it is to be noticed that there is no un- lawful gain by the petitioner and there is no dishonest intention, and they can be treated as minor lapse, since there is no loss to the Corporation and the charges were result of violation of the rule ‘issue and start’ and irregularities in closing the S.R.. As noted above, no doubt they are proved in the enquiry, but the aspect that is to be considered is with regard to the proportionality of the punishment. 11. It is further noticed that the Tribunal before conﬁrming the order of removal passed by the respondent – Corporation, has taken into consideration the previous conduct of the petitioner for exercising the jurisdiction under Section 11-A of the Industrial Disputes Act, by noting that the previous conduct of the petitioner is far from satisfactory. He was censured on ﬁve occasions; his annual increments were deferred on six occasions; in all he was involved in 11 to 12 cases; that taking a lenient view of this type of worker is nothing but giving premium to the various misconducts. It is to be noticed that there is no charge with regard to the previous conduct and hence there was no opportunity to the petitioner to advert to this charge. The Apex court in the decision reported in in STATE OF MYSORE v. MANCHE GOWDA[2] held as under: “It is suggested that the past record of a Government servant, if it is intended to be relied upon for imposing a punishment, should be made a speciﬁc charge in the ﬁrst stage of the enquiry itself and if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a Government is a continuous process, though for convenience it is done in two stages. T he report submitted by the Enquiry Oﬃcer is only recommendatory in nature and the ﬁnal authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject-matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the sub-matter of charge at the ﬁrst stage of the enquiry. But nothing in law prevents the punishment authority from taking the fact into consideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt. But what is essential is that the Government Servant shall be given a reasonable opportunity to know that fact and meet the same.” 12. From the above judgment of the Apex Court it is clear that if the past record of a Government servant is intended to be relied upon in imposing the punishment, a speciﬁc charge in this regard in the ﬁrst stage of the enquiry shall be made and if it is not done, it cannot be relied upon after the enquiry is closed. It is further held that whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject-matter of the enquiry. The Apex Court eventually held that nothing prevents the punishing authority from taking the fact of past conduct into consideration, sine it essentially relates more to the domain of punishment rather that of a guilt, but the essential factor is that such a Government Servant shall be given a reasonable opportunity to know the fact and meet the same. Therefore, from the judgment of the Apex Court, it is clear that before taking the past conduct into consideration, the delinquent shall be given notice, enabling him a reasonable opportunity to know the charge and meet the same. 13. A Division Bench of this court in the decision reported in K.NATARAJAN v. STATION COMMANDER, AIR FORCE STATION, HYD [3]. considering the above judgment of the Apex Court (2 supra) and noting the above extracted portion, held as under: “18. T he ratio of the above quoted observation is that if the past adverse record of an employee is sought to be used by the employer for imposing any particular penalty, then he must be informed about this and give an opportunity to explain his position. To put it diﬀerently, the delinquent must be foretold that his past adverse record or punishments are likely to be taken into consideration for determining the gravity of misconduct and the quantum of punishment. T he most convenient method of doing so is to give an indication of the same in the memo of charges. . . .” 14. From the above judgments it is clear that for taking the past conduct of the delinquent into consideration, for imposing a particular penalty, a charge in this regard shall be framed and the delinquent shall be given an opportunity to explain the circumstances. 15. In the present case as noted above, no charge with regard to previous conduct was framed and no notice was also given to the petitioner with regard to consideration of the said conduct while imposing the punishment. In such circumstances, the Tribunal is not justiﬁed in taking the said conduct into consideration while conﬁrming the punishment of removal inﬂicted by the Corporation on the petitioner. 16. Further as noted above, the charge no.2 involves the ﬁnancial loss to the corporation of about Rs.8-00 and the other charges are also proved beyond reasonable doubt. No doubt it is well settled that the amount involved cannot be criteria, for showing any indulgence, but it is the trust, which the conductor carries on behalf of the Corporation. But at the same time, the minor lapse, shall not result in total deprivation of the livelihood of the employee and his dependants. A learned single Judge of this court in W.P.No.17118/2008 dated 7.8.2008 while examining the proportionality of the punishment of removal imposed on a delinquent conductor, observed as under: “T he duties assigned to the conductor carry with them, an amount of trust, on behalf of the Corporation. Irrespective of the amount involved, the intention of a person employed as a conduct, while dealing with the tickets and csh, assumes importance. T he judgment of the Supreme Court relied upon by the Labour court is clear on this aspecft. At the same time, it must not be forgottin that, as part of the duty, the Conductor has to issue tickets to hundreds of persons everyday, and a small lapse, which does not releﬂect misuse of faith, cannot lead to deprivation of livelihood. An element of human right also exists, in the matter of this nature. It is not only the livelihood of the employee, but also that of his family members and dependants. While there cannot be any compromise with the requirement as to honesty in discharge of duties, minor lapses should not lead to deprivation of livelihood to an employee and his family. Before the service of an employee, running into few decades, is put an end to, a careful analysis of the matter is needed.” 17. As noted above, the Tribunal while conﬁrming the order of removal, has taken into consideration the previous conduct for which no charge is framed and no opportunity was also given to the petitioner to explain the circumstances and the same is found to be improper as per the judgments of the Apex court and this court. 18. Therefore, for the foregoing reasons, I am of the view that in exercise of the jurisdiction under Section 11-A of the Industrial Disputes Act, 1947, the punishment imposed on the petitioner requires to be modified. Accordingly the writ petition is disposed of as under: “The punishment imposed by the respondent – Corporation and as conﬁrmed by the Tribunal are modiﬁed to that of reinstatement into service afresh without back wages and without continuity of service.” 19. In the circumstances of the case, there shall be no order as to costs. AVS ---------------------------------- - 15 --11--2008 [1] 2000-II-LLJ-70. [2] AIR 1964 SC 506 [3] 2007(6) ALD 122 (DB)