THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.A.No.67 of 2011 ORDER: (Per Sri G.M,J) 1 This appeal is directed against the order dated 26.10.2010 passed in W.P.No.17972 of 2000 passed by a learned single Judge of this Court, whereby the award dated 15.09.2009 passed in I.D.No.49 of 2009 by the first respondent herein and the order dated 29.08.2006 passed by the appellant herein were set aside and consequently directed the appellant herein to reinstate the second respondent herein into service with continuity of service and attendant benefits, but without back wages. 2 The facts, in brief, are that the second respondent is employed as Conductor in the Rajendranagar depot of Andhra Pradesh State Road Transport Corporation. While he was conducting an urban service on 23.11.2005 on route No.95P, check was effected. Alleging that the second respondent collected fare of Rs.16/- from a batch of four passengers and did not issue tickets till they alighted the bus, a charge sheet was issued. The second respondent submitted his explanation. Not satisfied with that, the appellant appointed an inquiry officer, who filed a report dated 24.05.2006, holding that the charges framed against the second respondent were proved. A second show cause notice dated 26.07.2006 was issued to the second respondent and after receiving the explanation dated 14.08.2006 submitted by him, the appellant passed an order dated 29.08.2006 directing removal of the second respondent from service. The second respondent availed the departmental remedies of appeal and revision, but has not been successful. Thereafter, he filed I.D.No.49 of 2009 before the Additional Labour Court, Hyderabad i.e. first respondent herein. Through an award dated 15.09.2009, the first respondent dismissed the said I.D. Aggrieved thereby the second respondent preferred the Writ Petition. 3 Before the learned single Judge, the second respondent appeared as party-in-person and contended that the charges framed against him are totally baseless and even after holding that the domestic enquiry was defective, the Labour Court did not grant any relief. He further contended that in connection with the check, none were examined before the Labour Court and despite the same, the charge was held proved. 4 Out of the five charges framed against the second respondent, the first one is grave and rest of them are either not serious or are trivial. The first charge reads as under: “1. For having failed to issue tickets despite having collected requisite fare of Rs.16/- from a batch of four (4) passengers who were found alighting from your bus without tickets at Puranapool who had boarded your bus at Bhavaninagar colony ex-stages 3/4 to 6/7 while you were conducting the bus No.AP 9z-7898 on route No.95-P dated 23-11-2005 which constitutes mis-conduct under Reg.28 (vi) (a) of APSRTC Employees (conduct) Regulations’ 1963.” 5 During the enquiry, the second respondent denied the charges and a domestic enquiry was conducted. The charges were held proved and an order of removal was passed. 6 In the I.D. filed by the second respondent, the Labour Court recorded a specific finding that the domestic enquiry is invalid and hence permitted the parties to adduce evidence. The Corporation examined M.Ws.1 and 2 and filed Exs.M.1 to M.21. No evidence whatsoever was adduced by the second respondent. 7 After hearing the learned counsel for the second respondent and also the learned standing counsel appearing for the appellant, the learned single Judge observed that in the disciplinary proceedings, basically it is for the employer or the management to prove the charges framed against an employee. The mere fact that the employee did not adduce any evidence does not become material. Further it would be mostly in the form of rebuttal evidence. Therefore, much would depend upon the strength of the evidence, which the employer maintained. In the instant case, the allegation against the second respondent is that he collected fare from a batch of four passengers and did not issue tickets. The best persons to speak about this would have been the passengers themselves. Recognising the difficulty in securing the presence of the passengers in departmental proceedings, courts virtually exempted the Corporation from that necessity. The other relevant evidence would be that of the checking officials themselves, notwithstanding the fact that they may be prone to stick to their version. In the case on hand, the Corporation did not choose to examine the checking officials. M.W.1 is the Controller and M.W.2 is the Typist. None of them are members of the checking team. The learned Judge, having observed so, allowed the Writ Petition filed by the second respondent holding that the Award passed by the Labour Court cannot be sustained in law and accordingly set aside the order of removal passed against the second respondent by the appellant and directed the appellant to reinstate the second respondent with continuity of service and attendant benefits but without back wages. As stated supra, aggrieved thereby, the Corporation preferred this appeal. 8 In the instant case, it is to be seen that though it could not be possible for the Corporation to examine the passengers from whom the second respondent collected fare without issuing tickets, the appellant at least should have examined the checking officials to prove the guilt of the second respondent. But that was not done in the instant case. That is the reason why the Tribunal held the departmental enquiry to be defective, but it ordered to adduce evidence. In that view of the matter, the learned single Judge also held the disciplinary proceedings to be defective and consequently set aside the award dated 15.09.2009 passed by the Tribunal and the order dated 29.08.2006 passed by the appellant directing removal of the second respondent from service and ordered reinstatement of the second respondent into service with continuity of service and attendant benefits, but without back wages. The said order, in our view, does not call for any interference in this appeal. 9 Accordingly, this Writ Appeal is dismissed and the appellant is given four weeks time to reinstate the second respondent – employee into service with continuity of service and attendant benefits, but without back wages. No order as to costs. ---------------------------- GHULAM MOHAMMED, J Date:22.11.2011 ------------------------------------ NOOTY RAMAMOHANA RAO, J Kvsn