THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.874 OF 2005 DATED FEBRUARY, 2010 BETWEEN Ch.Ashirwadam … Petitioner and The Hon’ble Industrial Tribunal-cum- Labour Court, Warangal, Rep. by its Presiding Officer. And Another. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.874 OF 2005 ORDER: The unsuccessful petitioner in I.D. No.53 of 2002 on the file of the Industrial Tribunal-cum-Labour Court, Warangal, challenges the NIL Award dated 12.10.2004 passed therein. He seeks a consequential direction to the Andhra Pradesh State Road Transport Corporation (for short, ‘the APSRTC’) to reinstate him in service with continuity of service, back wages and attendant benefits. The petitioner was appointed as a Conductor in the APSRTC in the year 1977. While he was conducting the bus service on the route Madhira to Ummadadevarapally in Khammam District on 22.10.1999, certain cash and ticket irregularities were detected during the check made by the officials of the APSRTC. He was subjected to disciplinary proceedings under charge sheet dated 31.10.1999 on the following charges: “Charge: i) For having violated the rule Issue and Start which is serious misconduct in terms of Regulations 28(iv)(a) of APSRTC Employees (Conduct) Regulations 1963. ii) For having failed to issue ticket to a passenger in spite of collecting requisite fare of Rs.2.50ps. from him boarding point itself, who boarded your bus at Madira stage No.1 and found alighting at stage No.2 Khajipuram Ex-stages 1 to 2 which amounts to misconduct in terms of Regulations 28(vi)(a) and (x) of APSRTC Employees (Conduct) Regulations, 1963. iii) For having failed to close the ticket tray numbers of all denominations against the Stage No.2. Hence (xxx) marked in the SR against the stage No.2 by the Checking Officials, which constitutes serious misconduct in terms of Regulations 28(vi)(a) and (xxvii) of APSRTC Employees (Conduct) Regulations, 1963.” The petitioner denied the charges levelled again him in his explanation dated 15.11.1999. After a regular enquiry, by Report dated 16.12.1999 the Enquiry Officer held that all the three charges levelled against the petitioner were duly proved. Acting thereupon, the APSRTC removed the petitioner from service by Order dated 06.01.2000. Aggrieved thereby, the petitioner invoked the provisions of Section 2-A(2) of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’) in I.D. No.53 of 2002. By its Award dated 12.10.2004, the Industrial Tribunal-cum-Labour Court, Warangal, dismissed the I.D. confirming the petitioner’s removal from service. Hence, this writ petition. Sri G.Ravi Mohan, learned counsel for the petitioner, contended that the Labour Court erred in exercise of jurisdiction under Section 11- A of the Act of 1947. As regards charge 2 in respect of misappropriation of ticket fare by the petitioner, the learned counsel pointed out that the passenger in question had been examined during the course of the enquiry and had specifically withdrawn his earlier statement that he had paid the ticket fare and that in spite of the same the petitioner had failed to issue him the ticket. The learned counsel pointed out that the Labour Court not only ignored this crucial evidence but foisted an additional charge against the petitioner that he had produced someone else to impersonate the passenger. The learned counsel further pointed out that this was not even the case of the APSRTC and that the Labour Court independently raised this issue and held against the petitioner. The learned counsel therefore urged that this was a fit case warranting interference with the Award of the Labour Court. Per contra, Sri Sridhar, learned counsel representing the APSRTC, argued that the petitioner had himself admitted his guilt so far as charge 2 is concerned, in his spot explanation and therefore, the contradictory evidence put forth by the passenger could not be given any weightage. The learned counsel also stressed on the fact that the other two charges levelled against the petitioner were held proved and contended that no material irregularity is manifest warranting interference with the Award under challenge. Out of the three charges levelled against the petitioner, charge 2 appears to be more serious as it involved an allegation of misappropriation of the ticket fare by the petitioner. The material on record demonstrates that the passenger in question, one P.Ramesh, was examined during the course of the enquiry and he categorically stated that he was in a state of anxiety owing to the attempted suicide of his cousin sister and in that anxiety he had told the TTIs that he had paid the fare amount to the Conductor though he had actually not done so. This statement was recorded in the presence of both the TTIs who conducted the check. Relevant to note, neither of the TTIs put forth any objection with regard to the identity of the said passenger. That being so, it was wholly uncalled for on the part of the Labour Court to doubt the identity of the passenger on the alleged ground that the signatures of the passenger in his spot explanation and on his enquiry statement did not tally. When the APSRTC itself did not raise such an issue, it was not for the Labour Court to independently exercise its initiative in this regard, foist a charge upon the petitioner without putting him on notice and hold the same to be duly proved, as reflected in the Award under challenge. Further, the Labour Court appears to have been greatly influenced by the past conduct of the petitioner. Relevant to note, this past conduct was not the subject matter of the disciplinary proceedings. Such past conduct, no doubt, may have been relevant for other purposes such as grant of back wages, but ought not to have been taken into account by the Labour Curt for deciding the guilt of the petitioner vis-à-vis the charges, when the same was not part of the disciplinary proceedings. In the light of the categorical and unrebutted statement of the passenger that he did not pay the ticket fare to the Conductor, it is not open to the APSRTC to bank upon the so-called admission of guilt by the petitioner in his spot explanation and visit the dire punishment of removal from service upon him. It is to be noticed that the petitioner resiled from this ‘admission of guilt’ immediately thereafter when he submitted his explanation to the charge sheet. It is for the APSRTC to make out a case against the petitioner by way of independent evidence and in the absence of the same, the disciplinary action cannot be founded solely upon this so-called ‘admission of guilt’. In the light of the statement of the passenger in the present case, the very foundation for charge 2 stood demolished. The finding of the Enquiry Officer on this charge is therefore unsustainable, being opposed to the evidence. As regards charges 1 and 3, the enquiry proceedings reflect that the petitioner himself admitted his guilt in respect of both the charges. However, as pointed out supra, charge 2 out of the three charges was more serious in nature as it reflected upon the integrity of the petitioner, involving an allegation of misappropriation. Once this charge falls to the ground, the other two charges which were purely procedural and technical in nature, even if made out, did not warrant the dire punishment of removal from service. In the absence of a positive finding on charge 2, the punishment imposed is shockingly disproportionate to the misconduct alleged and proved under charges 1 and 3. However, as has been pointed out by the Supreme Court time and again, it is not for this Court to substitute its view in the matter and impose a lesser punishment unless exceptional circumstances are made out. No exceptional circumstances being apparent in the present case, such exercise necessarily has to be undertaken by the disciplinary authority itself. The writ petition is accordingly allowed in part setting aside the Award dated 12.10.2004 passed by the Industrial Tribunal-cum-Labour Court, Warangal, in I.D. No.53 of 2002 and the order of removal from service dated 06.01.2000 passed by the Depot Manager, APSRTC, Madhira Depot and remitting the matter back to the disciplinary authority for imposing suitable punishment upon the petitioner for the misconduct under charges 1 and 3. This exercise shall be completed within a period of one month from the date of receipt of a copy of this order. In the circumstances of the case, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. ___________February, 2010. VGSR