HONOURABLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.25739 of 2007 ORDER: This writ petition is directed against an award made in I.D.No.76 of 2005 dated 24/01/2007 whreunder the application filed under Section 2-A (2) of the Industrial Disputes Act, 1947 (for brevity ‘the Act’) by the petitioner has been dismissed. It appears that the petitioner was appointed as a driver in APSRTC on 20/07/1994 and he was attached to Kushaiguda depot at the relevant point of time. On 19/08/2001, when he was performing the duty on the route Vijayawada-A.S.Rao Nagar (One man service) he was also performing additional duty of a conductor by operating Tims Machine. While petitioner was operating the bus, a check was exercised by the checking officials at Keesara and they found certain cash and ticket irregularities and a charge memo was issued. The petitioner submitted his explanation denying the charges. Having not satisfied with the same, a charge sheet was issued enumerating the following charges: “1. For having violated the rule ‘issue and start’ 2. For having failed to collect the fare and issue tickets to a batch of four passengers and one individual passenger found traveling without tickets who boarded the bus at Vijayawada and bound for Kodad ex-stages 17 to 15, which constitutes misconduct in terms of Reg.28 (vi) (a) of APSRTC Employees (Conduct) Reg.1963.” Thereafter, an enquiry was conducted and after completing all the formalities, the petitioner was removed from service. However, the petitioner raised an industrial dispute before the labour Court in I.D.No.76 of 2005. Before the Industrial Tribunal, it was the case of the petitioner that he is only a driver and he could not have been entrusted with the duties of a conductor to operate Tims Machine. Even the enquiry was not properly conducted and the same was not valid. The punishment inflicted is disproportionate to that of the misconduct. Respondents resisted the said application by filing a detailed counter. No oral or documentary evidence has been adduced on either side. However, on perusal of the material made available before it, the Tribunal came to the conclusion that the enquiry conducted was valid and the findings of the enquiry officer were based on sufficient evidence. Therefore, the petitioner is not entitled for any relief as prayed for. Aggrieved thereby, the present writ petition is filed. Learned counsel for the petitioner strenuously contended that petitioner had put in more than 16 years of service. He was only a driver and ought not to have been entrusted with the duties of conductor. Further, petitioner was not trained to operate the Tims Machine, therefore, petitioner could not have been blamed for non-issuance of tickets against five passengers who traveled from Vijayawada to Kodad. Assuming that the charges are proved and enquiry was properly conducted, the punishment of removal from service is disproportionate to that of the misconduct, therefore, the impugned order is liable to be set aside and the petitioner is entitled for reinstatement with continuity of service and back wages etc. Whereas learned counsel for the respondent-Corporation supported the award of the Industrial Tribunal and stated that in the given circumstances, the Industrial Tribunal has rightly come to the conclusion that the petitioner is not entitled for the relief as prayed for and rightly dismissed the ID. I have given my earnest consideration to the respective submissions made by either side and perused the material made available on record. At the outset, it may be necessary to notice that the petitioner was a driver on a one man service bus. Therefore, the petitioner is supposed to operate Tims Machine for issuance of tickets. In this case, the petitioner having issued the tickets in respect of other passengers failed to issue tickets against five passengers traveling from Vijayawada to Kodad. One of the ticketless passengers explanation in the presence of the driver is that though they offered money the petitioner asked them to sit and the tickets will be issued leisurely, therefore, they were not possessing the tickets at the time of check. This was also the explanation offered by other passenger traveling in the bus. Thus, it is categorically established that petitioner intentionally did not issue tickets though passengers offered the required fare. Under those circumstances and also in view of the fact that the past conduct of the petitioner was not good, since he was removed from service once, and his increments were deferred for several times, it was not inclined to interfere into the removal order passed by the Corporation. The reasons recorded by the Industrial Tribunal in this regard are as under: “M.Siva, one of the ticketless passenger mentonie3d in his spot statement that he boarded the bus at Vijayawada, since the driver informed him that there is conductor, but he did not find conductor and he found ticket machine, he offered money to the driver and the driver (petitioner) told him that the money can be paid later on and he did not possess ticket when the check took place at Nandigama tollgate. The other four ticketless passengers have stated in their statement that they boarded the bus at Vijayawada to go to Kodada, when they offered ticket fare the driver asked them to sit and money can be paid later on. The aforesaid two statements of the passengers coupled with the evidence of K.C.S.Appa, the checking officials would reveal that the five passengers boarded the bus in Vijayawada and traveled upto Nandigama tollgate where the check took place by covering a distance of about 51 KMs. There is no necessity to the passengers to speak falsehood that they boarded the bus at Vijayawada. It is apparent that the total number of passengers traveled in the bus were 37 besides the five ticketless passengers and the remaining 32 passengers took their tickets from the counter and they boarded the bus and these five passengers boarded the bus when the bus was moving from the bus stand. Therefore, no tickets were issued through TIMS machine to the aforesaid 32 passengers. When the bus started from Vijayawada the petitioner is supposed to issue tickets within a reasonable distance by collecting money from the passengers and he had to follow the rule issue and start. If really the TIMS machine did not respond this fact would be known to the petitioner within two or three kilometers from Vijayawada. In such a case, he is expected to contact the depot authorities since he is aware of the consequences of non-issuance of tickets to the passengers traveling in his bus. But he did not do so. The circumstances of this case and the conduct of the petitioner would clearly indicate that the petitioner had no intention to issue tickets to the five passengers and he decided to collect the ticket fare from the said passengers at the time of alighting without issuing tickets and misappropriate the corporation funds. The management has established the charges against the petitioner and the enquiry officer recorded a correct finding after analyzing the material on record. Thus the finding of the enquiry officer is based on sufficient evidence.” Further, in view of the gross misconduct, the Industrial Tribunal held that the punishment is proportionate to that of the mis-conduct. Though the petitioner earlier was removed from service and suffered other punishments, appear to be not for the same misconduct of cash and ticket irregularities. Now petitioner is aged about 41 years. Therefore, taking this into consideration, I am of the opinion that the punishment of removal is disproportionate to that of the misconduct. Therefore, the award passed by the Industrial Tribunal is liable to be modified as under: In the result, the award is passed directing the respondent-corporation to reinstate the petitioner into service afresh. It is further made clear that the petitioner is not entitled for continuity of service or back wages or other attendant benefits etc. The Writ Petition is accordingly disposed of. No order as to costs. __________________ JUSTICE C.V. RAMULU 15th April, 2010 SKM