THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.20703 OF 2008 DATED NOVEMBER, 2010 BETWEEN G.Bixam (died per L.R’s) Ex.Conductor, E.No.097342 And Others. … Petitioners And The Regional Manager, APSRTC, Nalgonda Region, Nagonda. And Another. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.20703 OF 2008 ORDER: The petitioner in I.D.No.33 of 2007 on the file of the Labour Court-III, Hyderabad, having expired after the dismissal thereof by NIL Award dated 03.04.2008, his widow and children are before this Court assailing the same. The petitioner in I.D.No.33 of 2007 (hereinafter referred to as ‘the workman’) was engaged as a Conductor in the service of the Andhra Pradesh State Road Transport Corporation (APSRTC). While he was conducting the bus service on the route Macherla to Maddimadugu on 24.11.2005, a check was made at stage No.6. He was subjected to disciplinary proceedings in connection therewith under charge memo dated 24.11.2005 on the following three charges: “1. For having failed to follow the rule issue & start at stage No.8 Munnanoor, which constitutes misconduct in terms of Reg.28(vi-a) of APSRTC Employees (Conduct) Regulations, 1963. 2. For having reissued the tickets bearing No.355/687930 and 355/687944 of Rs.10/- deno., to a batch of two passengers who boarded the bus at Munnanoor and bound for Wankeshwaram ex-stages 08 to 05 while performing 09.00 hrs., DVK-MCL-MMD N/o. Exp.Service on 24.11.2005 which were already issued on the same at stage No.21 Macherla and stage No.14 Devarkonda and accounted in STAR document No.029/806062 on 15.10.2005 which constitutes misconduct under Reg.28(xxiii) of APSRTC Employees (Conduct) Regulations, 1963. 3. For having closed the tray numbers of all denominations upto stage No.06 without completing the ticket issues correctly which constitutes misconduct under Reg.28(xxxii) of APSRTC Employees (Conduct) Regulations, 1963.” Dissatisfied with his explanation, the APSRTC held a regular enquiry in the matter. Thereupon, the workman was removed from service under order dated 22.05.2006. His appeal and review having met with failure, he approached the Labour Court by way of the subject I.D. As the workman did not dispute the validity of the enquiry and sought reassessment of the evidence recorded therein, the Labour Court framed the following issues: “1. Whether the domestic enquiry officer and the respondent were justified in holding that the petitioner was guilty under the charges levelled against him? 2. Whether the punishment of removal from service imposed against the petitioner was appropriate? 3. To what relief?” The Labour Court, upon re-appreciation of the evidence, found that in so far as charge No.2 is concerned, one of the two ticketless passengers admitted before the Enquiry Officer that they had not purchased tickets and that they had picked up used tickets from the floor of the bus and presented the same to the checking officials as they were under threat of being taken to the Police Station. In view of this categorical admission on the part of the passenger himself, the Labour Court held that the Enquiry Officer and the disciplinary authority were not justified in holding the workman guilty of the said charge. However, the Labour Court opined that charges 1 and 3 were duly proved. Having stated so, the Labour surprisingly framed a fresh charge against the workman on its own. The observations of the Labour Court in this regard may be extracted: “It was the duty of the petitioner to verify the issue of tickets with all the passengers after collecting the fare from them. Allowing any passenger to travel in the bus without ticket is also a misconduct under Reg.28(xxxi) of APSRTC Employees (Conduct) Reg.1963. As per law laid down in the Civil Appeal between V.Ramana vs. APSRTC reported in 2005 III LLJ 725 by the Apex Court, ‘the conductor in road transport service not issuing tickets and failing to collect the ticket fare from the passengers amounts to breach of trust and on proof of the same removal from service stands justified. Hence the punishment of removal from service imposed against the petitioner by the management APSRTC was appropriate punishment.” It is on this basis that the Labour Court rendered the NIL Award presently under challenge. Relevant to note, no charge had been framed against the workman under Regulation 28(xxxi) of the APSRTC Employees (Conduct) Regulations, 1963. Further, the Judgment rendered by the Supreme Court in V.RAMANA v. APSRTC[1] had no application to the facts of the present case. The Supreme Court in the aforestated Judgment confirmed the Judgment of this Court in V.RAMANA v. APSRTC[2] holding that the quantum of amount misappropriated or embezzled by a delinquent officer may not be taken into consideration in deciding the adequacy or otherwise of the punishment and that removal from service for such embezzlement or misappropriation cannot be termed as shockingly disproportionate. In the present case, the Labour Court exonerated the workman of the second charge which levelled allegations of misappropriation and embezzlement against him. Once he stood absolved of the said charge, the ratio in V.RAMANA had no application to the case. The reliance placed by the Labour Court on the said Judgment is therefore completely misplaced. Further, this Court cannot countenance the approach adopted by the Labour Court in framing a fresh charge against the workman while exercising jurisdiction under Section 11-A of the Industrial Disputes Act, 1947. The same was wholly without jurisdiction being contrary to the scheme of the beneficial objectives underlying the said provision. In that view of the matter, the Labour Court erred in passing the NIL Award upholding the workman’s removal from service. Charge No.2, being the more serious one, stood excluded in view of the Labour Court finding in favour of the workman. Charge No.3 was incidental to the said charge and by itself, it was not a serious charge. Charge No.1 also is trivial in nature compared to Charge No.2. Even if held proved, the gravity of the misconduct under these two charges did not warrant the dire punishment of removal from service. The NIL Award dated 03.04.2008 passed by the Labour Court-III, Hyderabad, in I.D.No.33 of 2007 is accordingly set aside. In the normal circumstances, this Court would be inclined to remit the matter to the authorities for fresh consideration as to the appropriate punishment in respect of these two charges. However, as the workman has already expired and his legal representatives are before this Court, there would be no practical purpose served by remanding the matter at this stage. The record reflects that the workman was suspended from service on 02.12.2005 and was thereafter removed from service on 22.05.2006. He died on 31.07.2008, a day after the publication of the NIL Award. Relevant to note, the workman in his claim petition filed in support of the subject I.D. specifically averred that he remained unemployed since the date of his removal from service as he could not get any alternate employment in spite of his best efforts. This statement was left unrebutted on facts by the APSRTC. The workman has therefore laid sufficient foundation to claim back wages, as per the law laid down by the Supreme Court in J.K. SYNTHETICS LTD. v. K.P.AGRAWAL[3]. This Court is of the considered opinion that denial of 50% (fifty percent) of the back wages for the period that the workman remained out of service would be sufficient punishment for the misconduct alleged and proved against charges 1 and 3. There shall accordingly be a direction to the APSRTC to compute the terminal benefits due and payable to the workman taking into account the full service rendered by him, including the period from 02.12.2005 upto the date of his death. He shall however be denied 50% (fifty percent) of the back wages due for this period. Subject thereto, the said period shall be counted for all other purposes while computing the benefits due to the workman. The amount found due and payable to the workman shall be paid to the petitioners herein. This exercise shall be completed expeditiously and in any event not later than two (2) months from the date of receipt of a copy of this order. The Writ Petition is allowed to the extent indicated above. No order as to costs. ____________________ SANJAY KUMAR, J. _______ NOVEMBER, 2010. VGSR [1] (2006) 1 SCC (L&S) 69 = AIR 2005 SC 3417 [2] 2001 (5) ALT 180 [3] (2007) 2 SCC 433