THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.13005 OF 2008 DATED ______SEPTEMBER, 2010 BETWEEN: M.B.Reddy … Petitioner A n d The Regional Manager, APSRTC, Nizamabad Region, Nizamabad and others. …Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.13005 OF 2008 O R D E R The petitioner, a Conductor in the service of the Andhra Pradesh State Road Transport Corporation (APSRTC), challenges the Nil Award dated 05.12.2007 passed by the Labour Court-II, Hyderabad, in I.D.No.137 of 2004, the order dated 26.04.2006 passed therein by the Labour Court-II, Hyderabad, holding the domestic enquiry held by the APSRTC to be valid and the order dated 28.09.2007 passed by the Labour Court-II, Hyderabad, in I.A.No.97 of 2007 in I.D.No.137 of 2004 refusing to accede to the request of the petitioner to call a witness for examination. At the time of admission of this writ petition on 23.06.2008 this Court voiced a doubt as to whether the petitioner could be permitted to challenge the orders dated 26.04.2006 and 28.09.2007 when the I.D. itself was dismissed thereafter. The issue was therefore left open for further examination. The petitioner joined in the service of the APSRTC as a Conductor in October, 1987 and his services were regularized with effect from 01.07.1990. While he was conducting a bus service on 16.10.2003 a check was made and certain cash and ticket irregularities were allegedly detected. He was accordingly subjected to disciplinary proceedings in respect of four charges. Charges 1 to 3, being the substratum of the disciplinary proceedings, related to the alleged issuance of used tickets by the petitioner to certain passengers. Charge 1 pertained to issuance of a Rs.20/- ticket to a passenger after collection of fare which was thereafter found to have been already issued and accounted for. Charge 2 pertained to issuance of a Rs.20/- ticket in combination with a Rs.5/- ticket to a passenger after collection of fare which was also issued earlier. Charge 3 pertained to issuance of three Rs.20/- denomination tickets in combination with three Rs.5/- denomination tickets to a batch of three passengers after collection of Rs.75/- towards the fare which were already issued and accounted for earlier. Charge 4 pertained to the alleged manhandling of the TTIs by the petitioner. The APSRTC instituted an enquiry to look into the aforesaid charges. A copy of the enquiry report dated 29.12.2003 is also placed on record. Based on the same the petitioner was issued show cause notice dated 16.01.2004 proposing his removal from service. After considering his explanation thereto, the APSRTC removed the petitioner from service under proceedings dated 09.02.2004. His Appeal and thereafter, his Review were rejected on 31.05.2004 and 09.10.2004 respectively. Thereupon, the petitioner invoked the powers of the Labour Court under Section 2-A (2) of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’) by way of the subject I.D. As the petitioner disputed the validity of the domestic enquiry, the same was taken up as a preliminary issue. By its order dated 26.04.2006, the Labour Court held the domestic enquiry to have been validly conducted. Thereafter, the matter was heard on merits by the Labour Court. In the light of its finding that the domestic enquiry was valid no further evidence, oral or documentary, was adduced by either party. It appears that the petitioner filed I.A.No.97 of 2007 stating that a statement had been obtained from a particular passenger behind his back which was neither attested by the Jeep Driver of the TTIs nor the Bus Driver. The petitioner claimed knowledge of the said statement only upon receipt of the enquiry report and therefore sought production of the said passenger before the Labour Court for examination. By its order dated 28.09.2007, the Labour Court, being of the opinion that the application was belated as it had been filed after the Award was reserved, dismissed the same as not maintainable. On merits the Labour Court, by its Award dated 05.12.2007, held that the finding of the Enquiry Officer were justified, reasoned and supported by material. The Labour Court therefore refused to interfere with the said findings and dismissed the I.D. Hence, the present writ petition challenging all the three orders passed by the Labour Court. With regard to the preliminary issued raised by this Court on 23.06.2008 in respect of the maintainability of this writ petition against the two orders passed by the Labour Court prior to the dismissal of the I.D., Sri V.Narasimha Goud, learned counsel for the petitioner, placed reliance on the judgment of the Supreme Court in D.P.MAHESWARI V/s. DELHI ADMINISTRATION[1] wherein it was observed that the High Courts should not stop proceedings before the Tribunal so that a preliminary issue may be decided by them and that the jurisdiction of the High Court should not be allowed to be exploited by those who can well afford to wait as interlocutory orders could always be challenged along with the Award passed by the Labour Court. The same principle had been laid down earlier by the Supreme Court in COOPER ENGINEERING LIMITED V/s. P.P.MUNDHE[2]. It was followed by a learned Judge of this Court in FGP LIMITED, MUMBAI V/s. PRESIDING OFFICER, LABOUR COURT-III, HYDERABAD[3], wherein the learned Judge observed: “… This question need not, however, detain us since it is not in dispute that after an award is passed, by the Labour Court/Industrial Tribunal, either party to the dispute is not only entitled to challenge the award but also the interlocutory orders passed during the pendency of the industrial dispute. Challenge, in the present case, to the interlocutory order of the Labour Court, upholding the validity of the domestic enquiry, cannot be rejected as a workman is always entitled to challenge such an order, on a preliminary issue, along with the award passed by the Labour Court.” In the light of the aforestated legal position, there can be no doubt about the jurisdiction of this Court to examine the validity of the orders dated 26.04.2006 and 28.09.2007 passed by the Labour Court during the pendency of the I.D. even after its dismissal. The enquiry report dated 29.12.2003 reflects that only one TTI, G.Mallaiah, was examined. As regards Charge 1, the Enquiry Officer noted that the statement of a passenger, Pratap Reddy, was recorded which was attested by the petitioner under protest. However, the said passenger was not examined during the course of the enquiry. As regards Charge 2, the Enquiry Officer himself stated that the TTIs had not obtained the passenger’s statement in support of the said allegation. Having said so, the Enquiry Officer surprisingly recorded that unless the Conductor had issued the used ticket to the passenger, the TTIs would not have reason to record the irregularity and held against the petitioner. As regards Charge 3, the Enquiry Officer took into account the statement made by a passenger, M.Udaya Bhaskar, to the effect that he along with two others had traveled from Hyderabad to Toopran and had paid Rs.75/- to the petitioner and were issued the subject tickets which were alleged to have been issued earlier. The petitioner categorically asserted that this evidence had not been recorded in his presence at the time of the check and that the said statement was not attested by him or the Bus Driver or the Jeep Driver who had accompanied the TTIs. Without considering this aspect, the Enquiry Officer accepted and acted upon the said statement and held the charge proved. With regard to Charge 4, the Enquiry Officer again relied upon the statement of M.Udaya Bhaskar to hold that the petitioner had manhandled the TTIs. As the petitioner had no opportunity to test the veracity of the so- called statement made against him by M.Udaya Bhaskar he filed I.A.No.97 of 2007 in the subject I.D. seeking his production for examination before the Labour Court. However, the same was rejected by order dated 28.09.2007. The issue that requires to be addressed presently is whether the denial of opportunity to the petitioner to cross-examine the said passenger caused him prejudice to the extent of vitiating the proceedings. It is to be noticed that the petitioner in his claim petition before the Labour Court stated that one of the TTIs who had conducted the check was inimically disposed towards him owing to Union rivalry. This, according to him, constituted the motive for foisting a false case upon him. In that view of the matter, the guilt of the petitioner had to be established on the basis of independent and cogent evidence and not on the basis of the self-serving statements of the TTI, who was the only witness examined during the enquiry. Though passenger statements said to have been recorded during the check were made use of by the Enquiry Officer, the same were suspect as the petitioner had signed one under protest and the other statement made by M.Udaya Bhaskar did not even bear any attestation. Neither of the two passengers who made these statements were examined during the enquiry. Relevant to note, the Regulations of the APSRTC in this regard ordain that the TTIs should obtain the attestation of the Conductor upon the passenger statement and in the event the Conductor refuses to attest such statement, the attestation of the Driver has to be obtained. Without following this procedure, the statement recorded by the TTIs in the present case, against one of whom the petitioner made allegations, cannot be looked into. All the more so, when the petitioner alleged that the said statement was not even recorded in his presence at the time of the check. The failure on the part of the Enquiry Officer to afford an opportunity to the petitioner to cross-examine the said passenger inevitably caused great prejudice to the petitioner’s defence. Relevant to note, the said statement not only formed the basis for the Enquiry Officer holding against the petitioner on Charge 3 but also Charge 4. The enquiry therefore stood vitiated by this procedural lapse on the part of the Enquiry Officer. The said error was compounded by the Labour Court when it overlooked this lapse and upheld the domestic enquiry. To add insult to injury, the Labour Court dismissed the application filed by the petitioner seeking examination of M.Udaya Bhaskar. The net result is deprivation of a full and proper opportunity to the petitioner to prove his innocence. In the normal course, when the finding is that the domestic enquiry held by the Management against the Workman stood vitiated, this Court would remit the matter back to the Labour Court to enable the parties to adduce evidence afresh. However, keeping in mind the fact that the petitioner was removed from service in the year 2004 and it may be difficult for the APSRTC to procure the presence of the passengers, Pratap Reddy and M.Udaya Bhaskar, at this late stage, this Court is of the opinion that the ends of justice would be sufficiently served by substituting a lesser punishment in place of the removal from service visited upon the petitioner. There shall accordingly be a direction to the APSRTC to reinstate the petitioner in service as a Conductor without back wages and without continuity of service. The petitioner would be entitled to be placed on the basic pay scale that he was drawing at the time of his removal from service. The writ petition is allowed in part. There shall be no order as to costs. -------------------------- SANJAY KUMAR,J ______SEPTEMBER, 2010 PGS THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.13005 OF 2008 _______SEPTEMBER, 2010 [1] AIR 1984 SC 153 [2] (1975) 2 SCC 661 [3] 2006(1)ALD 512