THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No. 763 of 1999 O R D E R: Heard Sri Sridhar Reddy Pottigari, learned Standing Counsel for APSRTC and Sri Srinivas Srikanth, learned counsel for the 1st respondent. This Writ Petition has been instituted by the Depot Manager, Andhra Pradesh State Road Transport Corporation, Warangal-I Depot, questioning the legality and validity of the Award passed on 2nd July 1998 by the Industrial Tribunal-cum-Labour Court, Warangal in I.D.No. 38 of 1995. The facts, which are relevant for our inquiry, are in a very narrow compass. The 1st respondent – workman was employed as a Conductor with the Andhra Pradesh State Road Transport Corporation (henceforth referred to as ‘the Act’). He was conducting a bus on 1st September 1986. On the ground that he has not allowed to unload two bags and one basket of vegetables belonging to a lady passenger at Bhadrachalam Bus Depot, the Senior Traffic Inspector appears to have received a complaint from the said lady passenger alleging that the respondent – workman has demanded a sum of Rs.20/- towards illegal gratification for carrying the luggage and since she has declined to accede to such a request, the Conductor and the Driver of the bus have prevented the licensed porters from unloading two bags and one basket and hence, she requested suitable action to be taken against the Conductor. The Senior Traffic Inspector appears to have contacted on telephone the depot staff at Kothagudem and got unloaded the luggage belonging to that lady passenger at Kothagudem Bus Depot and brought it back to Bhadrachalam and handed over the same to that lady passenger, after collecting luggage fare of Rs.5/- from her. Further, since the cash was checked of the bus, as against Rs.1548/-, there was only Rs.1527.80 ps. available and thus, there is a shortage of Rs.21.20 ps. of the Corporation’s cash. Based upon these allegations, a charge sheet was drawn, comprising of three charges, on 19th August 1986. The first two charges are intricately connected with the allegations levelled against the respondent – workman by the lady passenger, while the third related to the shortage of cash belonging to the Corporation. Finding the explanation offered by the 1st respondent – Corporation as not satisfactory, a domestic enquiry was ordered to be conducted. At the domestic enquiry, on behalf of the writ petitioner – Corporation, the Senior Traffic Inspector, Kothagudem and the Check Inspector, Warangal Depot have been examined. The 1st respondent – Workman was also examined. Several documents have been exhibited. The case of the Corporation, all thorough, was this, that the 1st respondent – workman has collected Rs.5.25 ps. towards fare from a lady passenger and issued necessary ticket to her. However, he has not charged the luggage which the said passenger was carrying, though it should have been charged. On the other hand, the 1st respondent – workman has demanded a sum of Rs.20/- from her. Since she declined to accept this demand of illegal gratification, out of three bags and two baskets, which the said passenger was carrying, the 1st respondent – workman has not allowed two bags and one basket to be unloaded from the bus. The Senior Traffic Inspector at Bhadrachalam appeared to have contacted the Bus Depot at Kothagudem and got the remaining two bags and one basket unloaded there and brought them back to Bhadrachalam and handed over those two bags and one basket to the said passenger, after collecting a fare of Rs.5/- towards the luggage, as according to the Senior Traffic Inspector, the weight of the said luggage was approximately 35 Kgs. It is also the case of the Corporation that apart from the written complaint given by the lady passenger, the licenced porters at Bhadrachalam have also given a written complaint that the 1st respondent – workman and the driver of the bus have both prevented them from unloading the remaining two bags and one basket of the passenger. Insofar as shortage of cash of Rs.21.20 ps. is concerned, the explanation of the 1st respondent – workman was that, when passengers tender high denomination currency, while giving them back the balance money, erroneously excess amount may have been paid and as a result, there was a shortage of Rs.21.20 ps. and this is caused not because of any other factor, but because of inaccurate calculations made by him while tendering the balance amount to some of the passengers and since this shortage was well within the permissible limits, he should not be charged for the same, treating it as a misconduct. The total material that is available before the Enquiry officer is the statement made by the Senior Traffic Inspector, Bhadrachalam as well as the Check Inspector at Warangal Depot. The Check Inspector has deposed only with regard to the shortage of cash in the cash bag of the Conductor at the time of check. There is no dispute or denial with regard to the shortage. What was required to be noticed is, no attempt has been made to find out as to whether there were high denomination currency notes collected by the respondent – workman during the operations of the bus service or not. Even otherwise, the shortage of cash of the Corporation is liable to be made good by the Conductor concerned. The explanation offered by the respondent – workman that some of the passengers tendering high denomination currency notes, while purchasing tickets, has resulted in excess balance cash tendered to such passengers, has caused the shortage, has not been verified with regard to the material particulars of the contents of the cash bag. The principal charge against the 1st respondent workman was fairly serious enough. However, as the lady passenger has addressed another letter to the Depot Manager, Bhadrachalam withdrawing her complaint lodged earlier, the Corporation has not preferred to summon her before the domestic enquiry to examine her. Obviously, the Corporation never wanted to be embarrassed in the process, but what is important is the statement said to have been made by the licensed porters to the Senior Traffic Inspector at Bhadrachalam that it is the 1st respondent workman and the Driver of the bus who prevented them from unloading two bags and one basket belonging to that passenger, has not been substantiated in any manner. No reasons are forthcoming as to why these licensed porters have not been examined at all. Without examining the licensed porters, it may not have been proper for the Enquiry Officer to have drawn adverse conclusion against the 1st respondent – workman. At best, the respondent – workman would have been found guilty of not allowing the luggage of a particular passenger, comprising of two bags and one basket, to be unloaded and he may have been guilty of not taking adequate care to ensure that the luggage of the passengers is unloaded completely before the bus commences its onward journey, inasmuch as the Senior Traffic Inspector has clearly deposed that he has contacted on telephone the Depot staff at Kothagudem and got these two bags and one basket unloaded from the bus, conducted by the 1st respondent and brought those bags to Bhadrachalam and delivered them to the passenger after collecting from her luggage fare of Rs.5/-. To this extent, perhaps, the 1st respondent – workman could have been found guilty, as the fact is established that some of the luggage belonging to a passenger has been got retrieved from the bus conducted by the 1st respondent and it was subsequently, delivered to a passenger, but beyond that, he should not have been condemned for the other limbs of the charges as well. Perhaps, the disciplinary authority was fairly conscious of these limitations. Hence, he has imposed the punishment of reduction of pay by two incremental stages for a period of one year with cumulative effect, though the show cause notice has been issued to the 1st respondent – workman to explain why the punishment of removal from service cannot be imposed. It will be relevant to notice that stoppage of increments or reduction of pay with cumulative effect is a major punishment, inasmuch as it will have an everlasting effect on the employee. It will also have an impact upon his terminal benefits. However, entertaining the Industrial Dispute, the Labour Court had concluded the issue that the findings recorded by the Enquiry Officer which form the basis for imposition of the punishment are liable to be set aside. The Labour Court has arrived at the said conclusion, on the ground that the complainant/passenger and the licensed porters were not examined at the domestic enquiry. However, the approach adopted by the Labour Court is also erroneous in this regard. It is now well-settled that passengers who travel by the bus of the Corporation, whenever make a complaint about the misconduct or misbehavior of the staff of the Corporation, such passengers need not be troubled by repeatedly summoning them, for the purpose of examination and cross-examination. They are required to be spared of this ordeal. Therefore, to this extent, the approach adopted by the Labour Court is erroneous, but the same principle cannot be extended for the failure of examining the licensed porters, inasmuch as they report for duty day in and day out at a particular Bus Depot. Summoning them and examining them will not cause any difficulty whatsoever. It will also not result in major dislocation of work to them and above all, there will be no embarrassment and inconvenience involved in that process. Therefore, if the Corporation really wanted to bring home the charge that it is the respondent – workman who prevented the licensed porters from unloading those two bags and one basket of vegetables belonging to that passenger, they ought to have been examined at the domestic enquiry. Failure of examining them certainly makes the findings of the Enquiry Officer susceptible for interference. But, at the same time, the Labour Court has also failed to notice the two limbs of charges that are framed against the 1st respondent – workman, which can reasonably be held as established; 1) the failure of the 1st respondent workman to ensure that the entire luggage of the passengers is unloaded before the onward journey of the bus is commenced. If he had not taken enough care in that regard, the inconvenience will be faced by the passengers. Therefore, that limb of the charge causing inconvenience to the passengers can be said to have been held established; and 2) similarly, the workman himself has admitted about the shortage of cash of Rs.21.20 ps. Whether such shortage was caused intentionally or otherwise, apart from being recovered from the respondent – workman, a sense of discipline is also needed to be instilled in him. Therefore, to that extent also, the charge is liable to be said to have been established. Therefore, it will be totally erroneous to hold that all the three charges levelled against the 1st respondent – workman, as not held established. Clearly, charges 2 and 3 can reasonably be held to have been held established against the respondent – workman. What would be the appropriate punishment that is liable to be imposed is an area of discretion conferred in terms of Section 11-A of the Industrial Disputes Act, 1947, on the Labour Court/Industrial Tribunal. A careful and proper assessment is needed in that respect. The exercise of discretion conferred in this regard should be carried out on sound and proper lines. Reasons must be set out as to what kind of punishment would ultimately meet the ends of justice. In Regulation 8 of the APSRTC Employees (CCA) Regulations, 1967, several punishments commencing from censure to dismissal from service have been listed out. Consequently, punishments are required to be chosen from out of them, which not only meet the quantum of guilt held established against the employee concerned, but would also meet the quantum of misconduct. If the misconduct committed by the employees can be regarded to be minor, appropriate minor punishment should be imposed. Only when the misconduct of the employee is regarded as major misconduct, one of the major punishments can be called for. As was noticed supra, it was difficult to hold that Charge No.1 as framed against the respondent workman as held established, particularly when it comprises of a grave element of misconduct. In fact, the disciplinary authority also is of the same opinion. For the two remaining charges, it will be difficult to assume them to be comprising of major misconduct. Therefore, a minor punishment should have been imposed. Reduction of pay by two incremental stages, without cumulative effect, would have, therefore, met the ends of justice. It would have met the quantum of guilt held established against the 1st respondent workman. Therefore, the order passed by the disciplinary authority on 31st March 1987 imposing the punishment of reduction of pay by two incremental stages with cumulative effect while treating the period of suspension as period not spent on duty deserves to be modified to this extent, namely, the punishment of reduction of pay by two incremental stages for a period of one year without cumulative effect be imposed. The period of suspension shall continue to be treated as period spent not on duty. The pay of the 1st respondent workman would accordingly be re-fixed. The Award passed by the Industrial Tribunal-cum-Labour Court in I.D.No. 38 of 1995, dated 2nd July 1998 shall stand modified to the extent indicated supra. The Writ Petition is allowed as indicated above. No costs. ---------------------------------- (NOOTY RAMAMOHANA RAO, J) 11th December 2009 ksld