IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO:7036 of 1995 Between: Vasudeva Reddy, S/o. Papi Reddy Resident of Huzurabad, Chairman, Industrial Tribunal-cum-abour Court, Godavarikhani, Karminagar. ..... PETITIONER AND 1 Chairman, Industrial Tribunal-cum-abour Court Godavarikhani, Karimnagar, 2 The Depot Managar, APSRTC Bus Depot. Huzurabad, Karimnagar. 3 The Divisional Managar, APSRTC, Karimnagar. .....RESPONDENTS Counsel for the Petitioner:MR.A.K.JAYAPRAKASH RAO Counsel for Respondent Nos.2 & 3:SMT. P.RAJANI REDDY The Court made the following : ORDER: This writ petition is filed questioning award, dated 30.03.1994 in I.D.No.317 of 1991 on the file of the Chairman, Industrial Tribunal-cum- Labour Court, Godavarikhani (for short ‘the Tribunal’). The petitioner is a Driver in Andhra Pradesh State Road Transport Corporation (for short ‘the Corporation’). While he was on duty on the route Vavilala to Huzurabad on 05.04.1987, he caused an accident leading to the death of 2½ years old boy, by name, N.Ramesh, Son of Rajamallu. Following the said accident, disciplinary proceedings were initiated under the APSRTC Employees (Conduct) Regulations, 1963. The enquiry Officer, after holding enquiry submitted his report, dated 12.06.1987. In the enquiry, the enquiry officer examined Sri A.Rajaiah, Son of Rajalingam; Sri Ch.Thirupathi Reddy, Son of Veera Reddy and Sri S.Raj Reddy, Son of Malla Reddy, who are the eyewitnesses to the accident. He also considered the statement of the petitioner and in his report, he concluded as under: “As the driver sounded the horn and moved the bus only at the direction of the conductor duly observing road ahead of him, it cannot be totally held that he drove the bus in a negligent manner. The accident could have been averted had the driver keenly observed through the vision mirror since the accident occurred on the off side of the vehicle. As such, there is lack of anticipation on the part of the driver to this extent he is guilty of the charge.” Based on the said report, respondent No.2 passed order, dated 01.07.1987, whereby the petitioner was removed from service. The said order was modified in appeal by respondent No.3 vide his order, dated 03.11.1987 by substituting the penalty of removal with that of withholding of three annual increments with cumulative effect. The said order was questioned by way of Industrial Dispute No.317 of 1991 before the Tribunal, which in turn, dismissed the said I.D. on the ground that the petitioner was estopped from raising an industrial dispute, after having accepted the order of respondent No.3 by joining duty. Before proceeding further, it is necessary to examine the correctness of the reasoning of the Tribunal. In my considered view, dismissal of I.D. on the sole ground that the petitioner accepted the penalty and, therefore, his conduct constitutes estoppel, cannot be sustained in law. It is not the case of the Corporation that the petitioner informed the Corporation before joining duty that he is accepting the penalty and accordingly, waived his right to question the order imposing penalty on him. In Pickard v. Sears[1], Lord Denman, Chief Justice while dealing with the doctrine of estoppel held: “His title having been once established, the property could only be divested by gift or sale; of which no specific act was even surmised. But the rule of law is clear, that, where one by his words or conduct willfully causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” In Dhiyan Singh v. Jugal Kishore[2], the Supreme Court held: “11. Now it can be conceded that before an estoppel can arise, there must be, first, a representation of an existing fact as distinct from a mere promise de futuro made by one party to the other; second, that the other party, believing it, must have been induced to act on the faith of it; and third, that he must have so acted to his detriment.” In Gyarsi Bai v. Dhansukh Lal[3], the Supreme Court held: “To invoke the doctrine of estoppel three conditions must be satisfied: (1) representation by a person to another, (2) the other shall have acted upon the said representation, and (3) such action shall have been detrimental to the interests of the person to whom the representation has been made.” In the instant case, the conduct of the petitioner in merely joining the post therefore, does not in any manner constitute estoppel, as the respondents cannot be said to have acted detrimental to their interests by allowing him to join. Admittedly, the boy, who was playing alone in front of the pawnshop, came under the rear wheel of the bus. While the charge is that the petitioner drove the vehicle with lack of anticipation and in negligent manner, the enquiry Officer held that the petitioner sounded the horn and moved the bus only on the direction of the Conductor, duly observing the road ahead of him. He gave the finding that it cannot be held that the petitioner drove the bus in a negligent manner. Thus, one of the main imputations, namely, driving of the bus in negligent manner is held not proved. However, the other imputation, namely, lack of anticipation is held proved. Though the petitioner was removed by respondent No.2, as mentioned above, the said penalty was modified. Sri A.K.Jayaprakash Rao, learned counsel for the petitioner submitted that even the modified penalty is disproportionate to the gravity of misconduct of the petitioner. Smt. P.Rajani Reddy, learned Standing Counsel for the Corporation, however, submitted that the penalty imposed on the petitioner commensurates with the gravity of the misconduct. The law is well settled that even in cases of proven misconduct, doctrine of proportionality is required to be applied by the domestic Tribunal as well as the Courts. In Ranjit Thakur v. Union of India[4], the Supreme Court held that the “Sentence shall suit the offence and the offender.” The Supreme Court reiterated this doctrine in a number of subsequent judgments - Union of India v. G.Ganayutham[5], Om Kumar v. Union of India[6], V.Ramana v. APSRTC[7], Ram Saran v. IG of Police[8] and Divisional Controller, KSRTC v. A.T.Mane[9]. Examining the present case on the touchstone of the doctrine of proportionality, I am of the considered view that imposing on the petitioner penalty of withholding of three increments with cumulative effect is too disproportionate to the gravity of his alleged misconduct. As found by the enquiry Officer, the petitioner sounded the horn and moved the bus only on the direction of the Conductor. It would have been more ideal, if he has got down the bus and started it after observing the surroundings. Though there is some lapse on the part of the driver in failing to avert the possible accident, he was cleared of the more serious part of the charge of being negligent in driving. Though generally, determination of quantum of punishment falls within the domain of domestic tribunal and the High Court while exercising its power of judicial review remits the cases for fresh consideration, I do not feel inclined adopt this course, having regard to the fact that more than two decades elapsed since the initiation of the departmental proceedings. Hence, treating this case as an exception to the general rule, I find it expedient to modify the penalty. In my considered opinion, imposition of penalty of one increment with cumulative effect would suit the gravity of misconduct and serve the ends of justice. Accordingly, the penalty imposed on the petitioner is modified subject to the following conditions: 1. The petitioner will not be entitled to difference of monetary benefits on account of modification of the penalty, till today. 2. The petitioner is entitled to the monetary benefits from today onwards, and 3. the petitioner is entitled to the notional benefits for the purpose of computing the pensionary benefits. With the above directions, the writ petition is disposed of. As a sequel to disposal of main petition, WPMP.No.8713 of 1994 is disposed of as infructuous. C.V.NAGARJUNA REDDY, J 8th DECEMBER, 2008. kvni [1] (1837) 6 Ad & E1 469 [2] AIR 1952 SC 145 [3] AIR 1965 SC 1055 [4] (1987) 4 SCC 611 [5] (1997) 7 SCC 463 [6] (2001) 2 SCC 386 [7] (2005) 7 SCC 338 [8] (2006) 2 SCC 541 [9] (2005) 3 SCC 254