IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SEVENTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE C.V.RAMULU WRIT PETITION NO : 22524 of 2000 Between: 1 A.P.S.R.T.C., Rep by its Managing Director Mushirabad, Hyderabad 2 The Depot Manager A.P.S.R.T.C., Narayankhed, Medak District ..... PETITIONER(S) AND 1 M Kistaiah S/o Mallaiah Bus Depot Dubbaka, Medak District. 2 The Labour Court-II, rep by its Presiding Officer Hyderabad .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court will be pleased to issue an appropriate Writ, order or direction especially in the nature of Writ of Certiorari calling for the records relating to the impugned award Dt. 17/6/1999 made in Id No. 98/96 Labour court - II, Hyderabad published on 7/8/1999 setting aside the order of "dismissal" of the 1st Respondent from service dt. 7/7/95 and directing reinstatement of the 1st Respondent in to service with continuity of service, back wages and attendant benefits; and quash the same as being illegal without jurisdiction and invalid, and pass Counsel for the Petitioners: SMT.B.G.UMA DEVI Counsel for the Respondent No.2: GP FOR LABOUR The Court made the following : ORDER This writ petition is filed challenging the award dated 17.6.1999 made in I.D.No.98 of 1996 on the file of the Labour of Court-II, Hyderabad. Petitioner is the Management and 1st respondent is the workman. It appears that the first respondent while working as Driver caused an accident on 10-12-1994 on the route Hyderabad to Narayana Khed and driven the same in a rash and negligent manner and lack of anticipation, resulting in instantaneous death of a boy who was crossing the road. The petitioner-Management issued charge sheet enumerating the following charges: 1.For having driven the vehicle No.AP9Z 5307 in a rash and negligent manner, resulting a boy aged 9 years was died on the spot at Pasalwadi at about 19- 30 hours on 10-12-19994, which constitutes misconduct under Reg.28 (ix-b) of APSRTC Employees conduct Reg.1963. 2.For having driven the vehicle No.AP9Z 5307 on 10- 12-1994 with a lack of anticipation with the result the vehicle met with an accident and caused death of boy, which constitutes misconduct under Reg.28(ix-b) of APSRTC Employees Reg.1963. After conducting a detailed enquiry into the said charges, 1st respondent was removed from service. Thereafter, the appeal filed by him under Section 2-A (2) of the Industrial Disputes Act failed. Before the labour Court, it was the case of the respondent-workman that absolutely there was no negligence on his part. The boy suddenly crossed the road. In fact, the criminal Court also acquitted him under Section 304-A IPC. Further, even assuming that there was some misconduct on his part, the removal from service is disproportionate to that of the misconduct alleged against him. The petitioner-Management filed a detailed counter denying the allegations made by the respondent- workman stating that the respondent was responsible for the accident, since he drove the bus in a rash and negligent manner and without proper anticipation. Before the Labour Court, no oral evidence was adduced on behalf of both the parties. On behalf of the respondent-workman Ex.W1 was marked and on behalf of the petitioner-Management Exs.M1 to M21 were marked. After a detailed consideration of the entire material placed before it, the labour Court came to the conclusion that the enquiry officer did not take the evidence of the service conductor who was an eye witness to the accident in to consideration while arriving at the conclusion that the respondent was guilty of the charges. Apart from that, an independent witness viz R.Laxman i.e., a passenger who was travelling in the bus was also examined during the domestic enquiry. He stated that he was travelling in the bus being driven by the respondent- workman and when the bus was proceeding towards Faslwadi a boy came from the left side of the road in front of a stationed lorry and crossed the road and the driver swerved the bus to its right side to avert the accident by applying sudden brakes, but the boy touched the left side of the bus and fell down on the road. Therefore, the Labour Court recorded the finding that the conclusion arrived at by the Enquiry Officer is not correct and the charges framed against the respondent-workman are not proved and directed the petitioner-Management to reinstate the workman into service with continuity of service, back wages and attendant benefits. Aggrieved thereby, the present writ petition is filed. Smt B.G.Uma Devi, learned standing counsel for the petitioner-Management strenuously contended that the proof of charge as referred in the criminal case is altogether different from that of domestic enquiry. The charge herein was lack of anticipation which resulted in accident and caused death of a boy apart from rash and negligent driving. Therefore, the labour Court was not right in ordering reinstatement with continuity of service, back wages and other benefits. On the other hand, learned counsel for the respondent supported the award made by the labour Court and further submitted that since there was no evidence whatsoever against the respondent, the labour Court rightly came to the conclusion that the workman was not guilty of the charges, and therefore, ordered reinstatement with continuity of service and other attendant benefits. No interference is called for by this Court under Article 226 of the Constitution of India. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned award and other material made available on record. I am in agreement with the submissions made by the learned counsel for the petitioner that the proof of negligence as required in a criminal case is altogether different from that of a domestic enquiry of this nature. In a domestic enquiry, lack of anticipation can be considered and the same should be supported by evidence. In this case, admittedly, the boy crossed the road in front of a stationed lorry which was being overtaken by the bus. In view of the same, it cannot be said that the driver was not lacking anticipation and was supposed to take care of public. In this case, exactly the same thing had happened. Therefore, it cannot be said that the respondent-workman did not lack anticipation and he was not rash and negligent. However, in the peculiar facts and circumstances of the case, the punishment of removal from service is shockingly disproportionate to that of the misconduct alleged. Under those circumstances, the Labour Court ought to have awarded reinstatement with continuity of service, but, could not have granted back wages and attendant benefits also. There was some negligence on the part of the driver, therefore, the labour Court ought not to have granted entire relief as sought for. While admitting the writ petition, interim stay was granted on condition of the petitioner depositing 50% of the back wages within a period of four weeks from the date of receipt of copy of the order and the respondent- workman was given liberty to withdraw the same without furnishing any security. Learned counsel on either side submitted that in view of the said interim order 50% of the back wages were already deposited and the respondent-workman had withdrawn the same without furnishing any security. Under those circumstances, I am of the opinion that the respondent-workman is entitled only for 50% of the back wages. Thus, the award passed by the Labour Court is modified as under: “In the result, the petition is allowed setting aside the order of dismissal dated 7.7.1995 passed by the Depot Manager. The respondent-Management is directed to reinstate the workman with continuity of service but with 50% of back wages and without attendant benefits and the workman is also not entitled to increments from the date of dismissal till the date of reinstatement.” With the above modification, writ petition is, accordingly, disposed of. No costs. _________ 07-03-2008 rkk ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. The Labour Court-II, rep by its Presiding Officer Hyderabad 2.2CD copies