THE HON’BLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.27172 of 2005 Dated: 19.04.2010 Between: C. Narsimhloo (died) per L.Rs C.Sunitha and others. (petitioners 2 to 4 are brought on record as per L.R of deceased petitioner as per orders dated 12.08.2009 in WPMP.No.15269 of 2009) .. Petitioners. and APSRTC, rep. by its Managing Director, Musheerabad, Hyderabad, and another. .. Respondents ORDER: This writ petition is filed challenging the award, dated 16.08.2005, passed in I.D.No.121 of 2003 on the file of the Labour Court-III, Hyderabad. Petitioner No.1 is the workman and the respondents are the management. It appears, while petitioner No.1, who was appointed as Conductor in A.P. State Road Transport Corporation (for short ‘the Corporation’) in the year 1984, was conducting a bus on 10.01.2002, on the route Narayanpet-Mumbai, a check was exercised by the checking officials at stage No.5 and detected that petitioner No.1 issued luggage tickets worth Rs.240/- instead of Rs.336/-, for 14 units, to a passenger. Thereupon, he was issued with a charge sheet enumerating the following charge:- For having collected Rs.300/- from a passenger towards luggage fare for 14 units i.e., 8 rice bags weighing 50 kgs., each bag and issued him tickets bearing Nos.053/175621 to 680 of Rs.4/- deno., each 60 tickets worth of Rs.240/- instead of Rs.336/- @ Rs.24/- each unit who was found traveling with passenger’s tickets worth Rs.300/- from Narayanpet to Mumbai ex-stages 1 to 39, which constitutes misconduct under Reg.28 (vi) (a) of APSRTC Employees’ Conduct Reg. 1963.” After the explanation of the 1st petitioner was called for and after conducting a detailed enquiry into the matter, the disciplinary authority passed an order on 19.06.2003, removing the 1st petitioner from service. Aggrieved by the same, the 1st petitioner filed a claim petition, in I.D.No.121 of 2003, under Section 2-A (2) of the Industrial Disputes Act, 1947 (for short ‘the I.D. Act’), before the Labour Court-III, Hyderabad. It was the case of the workman before the Labour Court that the allegation that he issued less tickets for luggage is not correct, passenger in question was not examined on behalf of the management, respondents failed to prove the charge framed against him, the charge was illegally framed, he was not given reasonable opportunity in domestic enquiry and the punishment of removal from service is shockingly disproportionate to that of the misconduct alleged. A detailed counter-affidavit has been filed by the management denying the allegations made by the workman and it was asserted that since the misappropriation alleged is established, the punishment of removal is proportionate and reasonable. Before the Labour Court, no oral evidence was adduced on either side, however, on behalf of the workman, Ex.W1 was marked, and on behalf of the management, documents Exs.M1 to M19 were marked. In view of the memo filed by the advocate for the workman, under Section 11-A of the I.D. Act, to the effect that domestic enquiry was conducted in proper lines, the Labour Court held that the domestic enquiry was conducted in correct lines. Further, the Labour Court, after a detailed consideration of the matter, held that the charge against the workman is proved from the material on record and the act of misconduct and misappropriation against the workman is clinchingly established. Further, in the light of the principles enunciated in Divisional Controller, KSRTC (NWKRTC) vs. A.T. Mane[1], whereunder it was held that coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment, on the contrary it is the loss of confidence which is the primary factor to be taken into consideration and when a person is found guilty of misappropriating corporation’s fund, there is nothing wrong in the corporation in losing confidence or faith in such a person and awarding a punishment of dismissal, the Labour Court confirmed the punishment of removal of workman without giving any relief to him, by impugned award dated 16.08.2005. Sri V.Narsimha Goud, learned counsel for petitioners, strenuously contended that, firstly, the findings recorded by the Enquiry Officer as well as the Labour Court are contrary to the charge framed against the 1st petitioner and the evidence led therein. When no charge with regard to misappropriation and loss of confidence on the part of the 1st petitioner is framed by the management, recording a finding thereto would amount to going beyond the brief entrusted to the Enquiry Officer, on whose report the disciplinary authority as well as the Labour Court have relied upon. In this regard, learned counsel relied upon a judgment in T.R.C. Reddy vs. The Divisional Manager, A.P.S.R.T.C., Chittoor and another[2], whereunder it was held as under: “In the absence of any charge having been framed against the petitioner for “misappropriation of the Corporation amount”, the only action that can be taken or penalty be imposed on the petitioner would have been only for violation of clause (xxxi) of Regulation 28. There is no allegation in the charges that the acts complained of against the petitioner were with any dishonest intention or that he mis-appropriated the sum of Rs.29/- being the amount relating to ten tickets dishonestly. Mere retention of money should not necessarily raise a presumption of dishonest intention, but it is a step in that direction. Slackness in remitting the amount is not an offence. Taking into consideration the language used in clause (xxxi) read with clause (x) which says “theft, fraud, dishonesty or misappropriation in connection with the business or the property of the Corporation” it is very much clear that the departmental authorities intended to hold the petitioner guilty of misconduct only under the Category of act or omission and not as serious misconduct under clause (2) (xi) of Regulation 9. Therefore the impugned order imposing the punishment of removal of petitioner from service is liable to be quashed.” Learned counsel for the petitioners also relied upon another judgment in P.Balachandra Reddy v. A.P.S.R.T.Corpn.[3], whereunder it was held as under: “The Labour Court, in the present case, was carried away by the mistaken impression that the charges related to illegal gratification and dishonest intention to defraud the respondent-Corporation even though the charges framed against the petitioner did not contain any such allegations. There were no findings against the petitioner in that regard. Therefore, I find that on this aspect of the matter the conclusion of the Labour Court is vitiated by errors apparent on the face of the record. I am of the view that for the charges proved the punishment of removal is too harsh. In V. G. Reddy case (vide supra), referred to above, there were two charges against the conductor that he collected fares from 23 passengers in all and the amount found to have been collected was much larger than in the present case; even then a Division Bench of this Court held that the punishment to removal was not justified. Admittedly the petitioner was in service of the respondent-Corporation from April, 1978. After he was removed from service on 19 April 1984, he has not been in service till now i.e., for nearly 10 years. Though it is stated in the counter- affidavit in the present writ petition that in the past he was censured 4 times and that he was suspended once and that his increments were deferred once for having involved in similar acts of misconduct, no mention was made of those in the rejoinder filed on behalf of the management before the Labour Court. The impugned order of the Labour Court in Industrial Dispute No. 47 of 1987 also does not advert to any of those.” In view of the above rulings, the learned counsel for the petitioners submitted that the findings recorded by the Enquiry Officer, as relied upon by the disciplinary authority as well as the Labour Court, requires to be set aside, and in the absence of the charge as to misappropriation and loss of confidence, the punishment of removal was disproportionate to that of the misconduct alleged. I am in agreement with the submissions made by the learned counsel for the petitioners. Therefore, I am of the opinion that the Enquiry Officer and disciplinary authority have not properly appreciated the evidence and the facts of the case. Even the Labour Court has not properly appreciated the facts and circumstances of the case and the findings recorded by it are not accurate. Definitely, the act of the 1st petitioner amounts to misconduct, but however in the facts and circumstances of the case, I am of the opinion that the punishment of removal from service is disproportionate to that of the misconduct alleged. However, since the 1st petitioner died on 27.04.2009, I deem it appropriate to give a quietus to the proceedings of the case, without remanding the matter to the Labour Court for consideration of the case afresh. In view of the above, the order of removal dated 19.06.2003 as well as the impugned order are set aside. The respondents are directed to treat that the 1st petitioner died while in service and the period from the date of his removal till his death shall be treated as continuous service, but without backwages, and the petitioners 2 to 4, the legal heirs of the 1st petitioner, shall be paid all the benefits accrued to the account of the 1st petitioner and are payable to them. Accordingly, the writ petition is disposed of. No order as to costs. _____________ C.V.RAMULU,J 19.04.2010 v v [1] 2004 LLR 1105 [2] 1986 (2) ALT 69 (NRC) [3] 1994 (1) L.L.N 616