THEHON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.6416 OF 2003 O R D E R Heard both the counsel. 2. The petitioner was working as Conductor in the respondent – Corporation prior to his removal. On 26.6.1998 when he was conducting the bus bearing no.4008 on the route Done to Sangala at about 20-30 hours when the bus was at stage no.8, the Traveling Ticket Inspectors of Regional Enforcement Squad Kurnool exercised a check and detected certain cash and ticket irregularities. They obtained the statement from the concerned passengers and also the spot explanation of the petitioner. Thereupon, the petitioner was served a charge sheet and the petitioner submitted his explanation on 4.7.1998 and after conducting the departmental enquiry, the enquiry report was submitted on 5.10.1998 and eventually the disciplinary authority removed the petitioner from service and after exhausting the departmental remedies, the petitioner raised industrial dispute in I.D.No.136/2000 on the ﬁle of Industrial Tribunal – cum – Labour Court, Anantapur and the same ended in dismissal by award dated 10.10.2002 and challenging the same, the petitioner ﬁled the present writ petition. 3. The case of the petitioner is that when the bus was about to move from Chityal, one injured passenger and three drunken passengers boarded the bus and when the petitioner demanded the fare, they quarreled with the petitioner and in the meanwhile check was exercised and this was also admitted by the checking oﬃcials and further the check took place in a short distance of 1.00 k.m. and the checking oﬃcials imposed ﬁne of Rs.100/- to the passengers. It is stated that there is no fraudulent intention or mis-appropriation of the amount. Further, the cash was not checked to conﬁrm the excess cash. The enquiry oﬃcer without considering these aspects submitted the report and the disciplinary authority by not considering these aspects, removed the petitioner from service and the Tribunal by not appreciating these aspects, conﬁrmed the same. Further it is contended that the Tribunal failed to exercise the jurisdiction under Section 11-A of the Industrial Disputes Act. Finally it is stated that the punishment imposed is shocking disproportionate to the charges proved and hence sought to set aside the impugned award and order reinstatement of the petitioner with attendant benefits. 4. On the other hand, the respondent – Corporation ﬁled counter and stating that as the charges against the petitioner were proved in the departmental enquiry, the same cannot be interfered with and further supporting the impugned award, sought to dismiss the writ petition. 5. The charges against the petitioner are as under: 1. For having failed to collect the fare and issue tickets to a batch of four passengers who boarded your bus at Chityala and alighting at Chechuverraguidi ex-stages 6 to 8 found alighting without tickets which constitutes misconduct under Regulation no.28(vi)(a) of APSRTC Employees (Conduct) Reg. 1963. 2. For having closed tray nos. of all denominations upto to stage no.8 without completing the above ticket issues which constitutes misconduct under regulations 28(xxxii) of APSRTC Employees (Conduct) Reg. 1963 3. For having failed to observe the rule “issue and start” while conducting the service on the route Dhone to Sangala which constitutes misconduct under Regulation No.28(xvii) of A.P.S.R.T.C., Employees’ (Conduct) Reg. 1963. 6. From the above the charges against the petitioner are that he failed to issue tickets to four passengers who boarded the bus at Chaityal and alighting at Chechuveeraguidi ex-stages 6 to 8 and further he closed the S.R. up to stage no.8 and also violated the rule ‘issue and start’, which acts constitutes misconduct under Regulation 28(vi)(a), (xxxii) and (xvii) of A.P.S.R.T.C. Employees (Conduct) Regulations, 1963. 7. There is no dispute with regard to the procedure in conducting the enquiry and only the ﬁndings of the enquiry oﬃcer, as confirmed by the Tribunal are disputed. 8. The case of the petitioner is that the out of four passengers, one was injured and three were drunken and they informed him that they were not having money and further they stated that they will pay the amount at the alighting point and also quarreled with him and as the distance was also short, he could not issue tickets to them and that there was neither dishonest intention nor mis-appropriation of the amount. 9. It is to be seen that four passengers boarded the bus at stage no.6 and they were found alighting at stage no.8 without tickets. The petitioner also closed the S.R. up to the stage no.8 and there are only 19 passengers in the bus. It is also to be seen that if the passengers were not having money, the petitioner ought to made them to get down and hence the version of the petitioner cannot be believed and the considering these circumstances, the enquiry oﬃcer rightly concluded that the petitioner is guilty of the charges and the Tribunal rightly conﬁrmed the same. Hence, the ﬁnding of fact based on evidence, cannot be interfered with in the writ petition. 10. The next aspect to be considered is with regard to the proportionality of the punishment imposed vis-à-vis the charges proved against the petitioner. In the present case, the Tribunal has considered the previous conduct of the petitioner while exercising the jurisdiction under Section 11-A of the Industrial Disputes. Admittedly no charge is framed with regard to the previous conduct and the petitioner has no notice with regard to considering of his previous conduct. The Apex Court in the decision reported in STATE OF MYSORE v. MANCHE GOWDA [1] held as under: “It is suggested that the past record of a Government servant, if it is intended to be relied upon for imposing a punishment, should be made a speciﬁc charge in the ﬁrst stage of the enquiry itself and if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a Government is a continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Oﬃcer is only recommendatory in nature and the ﬁnal authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject-matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the sub-matter of charge at the ﬁrst stage of the enquiry. But nothing in law prevents the punishment authority from taking the fact into consideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt. But what is essential is that the Government Servant shall be given a reasonable opportunity to know that fact and meet the same.” 11. From the above judgment of the Apex Court it is clear that if the past record of a Government servant is intended to be relied upon in imposing the punishment, a speciﬁc charge in this regard in the ﬁrst stage of the enquiry shall be made and if it is not done, it cannot be relied upon after the enquiry is closed. It is further held that whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject-matter of the enquiry. The Apex Court eventually held that nothing prevents the punishment authority from taking the fact of past conduct into consideration, sine it essentially relates more to the domain of punishment rather that of a guilt, but the essential factor is that such a Government Servant shall be given a reasonable opportunity to know the fact and meet the same. Therefore, from the judgment of the Apex Court, it is clear that before taking the past conduct into consideration, the delinquent shall be given notice, enabling him a reasonable opportunity to know the charge and meet the same. 12. A Division Bench of this court in the decision reported in K.NATARAJAN v. STATION COMMANDER, AIR FORCE STATION, HYD[2] . considering the above judgment of the Apex Court (1 supra) and noting the above extracted portion, held as under: “18. The ratio of the above quoted observation is that if the past adverse record of an employee is sought to be used by the employer for imposing any particular penalty, then he must be informed about this and give an opportunity to explain his position. To put it diﬀerently, the delinquent must be foretold that his past adverse record or punishments are likely to be taken into consideration for determining the gravity of misconduct and the quantum of punishment. The most convenient method of doing so is to give an indication of the same in the memo of charges. . . .” 13. From the above judgments it is clear that for taking the past conduct of the delinquent into consideration, for imposing a particular penalty, a charge in this regard shall be framed and the delinquent shall be given an opportunity to explain the circumstances. 14. In my considered view, the previous conduct of the petitioner has inﬂuenced by the Tribunal in exercising the discretionary jurisdiction under Section 11-A of the Act, regarding which, the petitioner has no notice. Therefore, I am of the considered view, that it is a ﬁt case to interfere with the quantum of punishment in exercise of the discretionary jurisdiction under Section 11-A of the Industrial Disputes Act. 15. Accordingly the punishment awarded against the petitioner is modiﬁed to that of reinstatement into service afresh without back wages and without continuity of service. 16. The writ petition is accordingly disposed of. No costs. AVS -------------------------- 15--11--2008 [1] AIR 1964 SC 506 [2] 2007(6) ALD 122 (DB)