IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) TUESDAY, THE 21st DAY OF DECEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No.26649 of 2001 21st December, 2010 BETWEEN: G. Appa Rao … PETITIONER(S) And The Hon’ble Industrial Tribunal cum- Labour Court, Warangal, rep. by its Presiding Officer and another … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No.26649 of 2001 ORDER: The point that arises for determination in this writ petition is whether the award dated 02.07.2001 of the Industrial Tribunal – cum- Labour Court, Warangal (Labour Court), confirming the punishment of removal from service imposed upon the petitioner by the management of the Andhra Pradesh State Road Transport Corporation (APSRTC) in respect of two charges of misconduct brought against the petitioner, is correct or not. The other question alternatively raised is whether the punishment of removal is disproportionate to the misconduct of the petitioner and whether he deserves any lesser punishment. 2. The point arises in the following circumstances. At the relevant time the petitioner was working as driver in APSRTC and was attached to its Madhira depot. On 22.01.1996, the petitioner was engaged as the Driver of a DGT van to go to zonal workshop at Karimnagar to unload certain scrap material. Accordingly, the petitioner took the DGT van and unloaded the scrap material except some spring blades and other material which were to be unloaded after weighment. After unloading the scrap material, the petitioner along with the cleaner again took out the van outside and after weighment of the spring blades and other material unloaded the same at the relevant point in the zonal workshop. After unloading the said material, the petitioner again was taking out the DGT van from the premises of the zonal workshop and in the usual course at the exit point the van was checked by the security guards. 3. At the time of the said checking, the security guards found that the petitioner has kept two gunny bags containing the scrap material beneath the Driver’s seat in the Driver’s cabin and on the opening of the said gunny bags by the security guards it was found that they contained certain brass material worth Rs.3,000/-. The security guards reported the matter to the other officials and the enquiry made by them revealed that the petitioner clandestinely carried the said gunny bags in order to commit theft of the same to make a wrongful gain. 4. Accordingly, the disciplinary authority placed the petitioner under suspension and held an enquiry by framing two charges. The substance of the first charge is that on 22.01.1996 as the Driver of the DGT vehicle belonging to Madhira depot the petitioner attempted to commit theft of about 41 Kgs of brass material worth around Rs.3,000/- and thereby was guilty of misconduct falling under Regulation 28(x) of APSRTC Employees (Conduct) Regulations, 1963. The substance of the second charge is that the petitioner loaded two gunny bags with brass material mentioned in charge No.1 in the DGT van without permission from the zonal workshop authorities at Karimnagar on the above date and was thereby guilty of misconduct falling under Regulation 28(x) (xvii) & (xxxii) of APSRTC Employees (Conduct) Regulations, 1963. Both the charges are interconnected and go together. 5. After completing the enquiry the first disciplinary authority i.e. the Depot Manager, APSRTC, Madhira depot (second respondent herein), by his order dated 22.05.1996 removed the petitioner from service. The petitioner’s appeal against that order was dismissed by the Divisional Manager, APSRTC, Khammam, by his order dated 10.06.1998 and the petitioner’s review petition against that order was also rejected by the Regional Manager, APSRTC, Khammam, on 22.09.1998. Thereafter, the petitioner moved the Labour Court questioning his removal from service on the above two charges. The Labour Court after considering the matter at length found that the findings in the domestic enquiry upholding both the charges were correct on the evidence and in that view of the matter it also found that the punishment of removal was an appropriate punishment and accordingly passed the impugned award confirming the said punishment. Questioning the said award, the petitioner has filed this writ petition. 6 . The learned counsel for the petitioner basing on the pleadings in the writ petition firstly argued that the petitioner was not at fault and he innocently loaded the two gunny bags without knowing about their contents at the request of one Mr.Sanjeevarao, a Mechanic at the zonal workshop, who told him that he would take the gunny bags from the DGT van after it was taken out from the zonal workshop and that the said Sanjeevarao after the security check changed his version. The petitioner’s counsel says that this defence of the petitioner was not considered at all in the domestic enquiry and injustice was done to him. It is also argued on behalf of the petitioner that at the relevant time about ten persons were working at the zonal workshop and it was not possible for the petitioner to keep the gunny bags in the driver’s cabin without their knowledge and while no action was taken against the said Sanjeevarao he was held responsible for the alleged theft. He also pointed out that no proper opportunity was given to him in the domestic enquiry and therefore it is vitiated. It is the plea of the petitioner that the disciplinary authorities and the Labour Court did not appreciate the evidence properly and committed an error in upholding the charges and therefore the award should be set aside exonerating him from the charges. 7. The learned counsel for the petitioner alternatively pointed out that in the circumstances pleaded by the petitioner the punishment of removal from service must be held to be a totally disproportionate one to the misconduct alleged against him and therefore a lesser punishment should have been imposed and he should have been ordered to be reinstated with consequential benefits. A counter affidavit was filed by the Law Officer of the APSRTC on behalf of the second respondent. In the said counter it is stated that both the charges brought against the petitioner are well-founded and the evidence recorded in the domestic enquiry clearly established them and therefore the disciplinary authority and the higher authorities rightly upheld the charges. It is also stated that having regard to the gravity of charges, the punishment of removal cannot be said to be disproportionate to the charges and it was rightly imposed by the APSRTC authorities. It is also pleaded that the Labour Court considered the evidence in detail and upheld the order of removal and therefore there is no ground to interfere with the award. The learned counsel on either side advanced their arguments basing on the above pleadings and in the light of the same, the point is now taken up. 8. It may be noted that under point No.1 in para-6 of its award the Labour Court considered the validity of the domestic enquiry and found that the petitioner participated in it and he was given a reasonable opportunity to contest the charges brought against him and therefore it cannot be said that the domestic enquiry was invalid. Further, a perusal of the award would also show that the Labour Court discussed about the statements of the petitioner, the mechanic Sanjeevarao and also a cleaner by name Vijaykumar and a tin-smith by name K.Jayaraj who accompanied the petitioner in the DGT van and concluded that the enquiry was properly held and the defence of the petitioner cannot be accepted. 9. The award in question would show that the above-mentioned cleaner and tin-smith Vijaykumar and K.Jayaraj accompanied the petitioner in DGT van on duty and they stated in their statements at the time of check that they were not aware of the keeping of two gunny bags with brass material by the petitioner in the driver’s cabin. It is thus clear that the petitioner did it clandestinely. The award would also disclose that the petitioner himself made a statement to the effect that he committed a mistake in keeping the gunny bags in the driver’s cabin going by the words of the mechanic Sanjeevarao. 10. Discussing the defence of the petitioner that he was innocent and he kept the gunny bags in the driver’s cabin only at the request of mechanic Sanjeevarao, the Labour Court observed that the petitioner was working as a driver since 1988 and by 2001 he can be said to be a well experienced person and therefore he ought to know that when the DGT van was being taken out of workshop no material belonging to the workshop should be placed in the driver’s cabin. In that view of the matter, it rejected the defence of the petitioner. It may be noted that under Section 11A of the Industrial Disputes Act, the Labour Court is competent to re-appreciate the evidence and come to its own conclusion on the proof or otherwise of the charges relating to misconduct and also the adequacy or otherwise of the punishment. In the present case, the Labour Court in the impugned award undertook that exercise and concluded that the charges were proved and the punishment imposed was not disproportionate to the charges. 11. I n REGIONAL MANAGER, RSRTC vs. GHANSHYAM SHARMA[1] and DIVISIONAL CONTROLLER, KSRTC vs. A.T.MANE[2], it has been held by the Honourable Supreme Court that where Conductors of State transport undertakings are found to have collected fares and failed to issue tickets to passengers that amounts to serious misconduct of misappropriation and removal or dismissal from service would be the proper penalty as in such cases the factor of loss of confidence would arise. The present case relates to misconduct which is of an attempt to commit theft and it stands on the same footing. The petitioner was unable to show before the Labour Court that the domestic enquiry was not held in a fair manner and it was vitiated and the Labour Court found that the said enquiry was properly held. The Labour Court also discussed the evidence and concluded that the defence of the petitioner was unacceptable. This Court sitting under Article 226 of the Constitution of India cannot interfere with the above findings of the Labour Court by re-appreciating the evidence. 12. In the above circumstances, having regard to the charges and the findings recorded by the Labour Court, it follows that this Court cannot disturb the award even with regard to the punishment of removal from service given to the petitioner. Accordingly, the point is decided in the negative and this writ petition is dismissed. No costs. ______________________ N. RAVI SHANKAR, J 21st December, 2010. CVRK [1] (2002) 10 SCC 330 [2] (2005) 3 SCC 254