IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY THIRD DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT PETITION NO : 12678 of 2003 Between: Obilli Narasimhulu, S/o.Ramaiah, R/O.H.NO.8/386, Court Road, Anantapur. ..... PETITIONER AND 1 The Depot Manager, APSRTC, Rajampet Depot, Cuddapah District. 2 The Presiding officer, Labour Court, Ananthapur. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue an order or direction more particularly one in the nature of writ of mandamus calling for the records relating to the award passed by the Hon'ble Labour Court, Anantpur in I.D.NO.162/2001, dt.4-1-2003 published vide G.O.Rt.NO.550, dt.18-3-2003 and Proc.NO.02/95(261)/99- RJPT, dt.19-2-2000 of the 1st respondent and declare the same as illegal, arbitrary and further direct the respondents to re-instate the petitioner into service as conductor with continuity of service and back wages and pass such other and further order or orders. Counsel for the Petitioner: MR.P.RAGHAVENDRA REDDY Counsel for the Respondent No.1: SMT.W.V.S.RAJESWARI ,SC FOR APSRTC Counsel for the Respondent No.2: GP FOR LABOUR The Court made the following : ORDER: The petitioner in the writ petition is a conductor, who was removed from service on the ground of indulging in cash and ticket irregularities. This writ petition is filed questioning the award dated 04-01-2003 in I.D.No.162 of 2001 which was published in G.O.Rt.No.550 dated 18-03-2003 conﬁrming the order of removal passed by the Depot Manager on 19-02-2000 and to declare the same as illegal, arbitrary and further to direct the respondent to reinstate the petitioner into service as conductor with continuity of service and backwages. The case of the petitioner is that he was appointed as conductor in the respondent-corporation in the year 1990. On 18-09-1999, while he was conducting the bus on the route Kodur to Nethivaripalli, a check was exercised by the authorities and a charge sheet was issued on 30-09-1999 framing the following charges: “1. For having violated the rule of issue and start while performing duty on route Rajampet-Nethivaripalli on 18-09-1999 which constitutes misconduct as per Reg.28 (xxxi) of APSRTC Employees (Conduct) Reg.1963. 2. For having collected an amount of Rs.5.00 ps. (Rs.2.50 ps.) from a batch of two passengers and failed to issue E.2 tickets of Rs.2.50 ps. den. to them who boarded the bus at Kodur and alighting at Vaddipalli Ex.Stages 9 to 9/10 while performing duty on route Kodur- Nethivaripalli on 18-09-1999 which constitutes misconduct as per Reg.28 (x) of APSRTC Employees (Conduct) Reg.1963. 3. For having refused to attest the passengers statement and also refused to give your spot explanation at the time of check while performing duty on route Kodur-Nethivaripalli on 18-09-1999 which constitutes misconduct as per Reg.28 (xxxii) of APSRTC Employees (Conduct) Reg.1963. 4. For having instigated the passengers and villagers on the TTIs and held responsible for obstruction of checking work while performing duty on route Kodur-Nethivaripalli on 18-09-1999 which constitutes misconduct as per Reg.28 (viii) of APSRTC Employees (Conduct) Reg.1963.” The petitioner submitted an explanation denying the charges. Thereafter, an enquiry was conducted and the enquiry oﬃcer submitted his report stating that the charges levelled against the petitioner have been proved. The petitioner had submitted his explanation to the enquiry report denying the allegations made against the petitioner. Thereafter, a further show cause notice was issued by the disciplinary authority, in response to which the petitioner submitted an explanation denying the allegations made against him. Finally, on 19-02-2000, the Depot Manager issued proceedings removing the petitioner from service. Aggrieved by the same, the petitioner preferred an appeal before the Dy.Chief Traffic Manager, Kadapa, on 28-02-2000. By proceedings dated 11-04-2000, the appellate authority rejected the appeal. Aggrieved by the same, the petitioner ﬁled a review petition on 17-04-2000. On 04-05- 2000, the reviewing authority also rejected the review petition. Aggrieved by the same, the petitioner filed a claim petition before the Labour Court under Section 2-A (2) of the Industrial Disputes Act (for brevity ‘the I.D.Act’) and sought to set aside the order of removal dated 19-02-2000 and to direct the respondent-Corporation to reinstate the petitioner into service with continuity of service with full backwages and with all other attendant beneﬁts. The Labour Court by its award dated 04-01-2003, conﬁrming the order of removal, dismissed the I.D. Aggrieved by the same, the petitioner filed the present writ petition. Learned counsel for the petitioner submits that the Labour Court dismissed the ID, conﬁrming the order of removal passed by the authorities under the statute, without there being any evidence to prove the allegations levelled against the petitioner. The main contention of the petitioner is that the petitioner was about to issue the tickets to two passengers and meanwhile the check was exercised and the petitioner has not collected the fare, therefore, it is a case of non-collection of fare and non- issuance of tickets. He also submits that no statements of the said two passengers were recorded at the time of check, but the TTI who conducted the check had obtained the thumb impressions of the passengers on a blank paper and thereafter got recorded the statements of the alleged passengers, as if it is their statement, by the jeep driver in which the TTI himself had travelled. Therefore, he submitted that absolutely there is no statement of the witnesses at all at the time of check. Therefore, it is a case of no evidence. He also submitted that in the domestic enquiry except the TTI himself no one was examined on behalf of the department either the driver of the bus or the jeep driver who stated to have recorded the statement of the alleged passengers. Therefore, the entire domestic enquiry was based only on the statement of the TTI which cannot be relied upon. He submitted that from the beginning the case of the petitioner is that he is not liable for the charges levelled against him and no charges have been proved against him and no evidence was available on record to prove the allegations made against him and no statements of the passengers were recorded at the time of the check. Therefore, it is a case of no evidence. He also submitted that the Labour Court, on the ground that there is no procedural violation in the domestic enquiry, did not appreciate the evidence on record and the speciﬁc contentions raised by the petitioner. The statement of the passengers was not recorded at the time of check, but it appears to be recorded later on by the driver of the jeep in which the TTI had travelled, therefore, such statement cannot be relied upon and in the absence of passengers’ statement, there is no possibility of proving the case against the petitioner. On the other hand, learned counsel for the respondent submitted that the four charges, that have been framed against the petitioner, are serious in nature and the petitioner did not submit the spot explanation or the explanation in response to the charge sheet and the petitioner did not cooperate with the checking oﬃcials at the time of check. In the domestic enquiry, the charges levelled against the petitioner have been proved and the petitioner does not dispute the validity of the domestic enquiry. The principles of natural justice have been complied with during the course of domestic enquiry and the same has been considered by the Labour Court and on re- appreciation of the evidence on record the labour Court came to the conclusion that the charges levelled against the petitioner have been proved. Therefore, the learned Labour Court rightly, while conﬁrming the order of dismissal, dismissed the ID and the said award is valid and in accordance with law and no valid grounds to interfere with the impugned award. The speciﬁc averment in the aﬃdavit ﬁled in support of the writ petition is that in response to the charges levelled against him he submitted an explanation denying the charges and that all the charges that are levelled against him are false and baseless, that he had not committed any misconduct as alleged in the charge sheet much less under the APSRTC (Conduct) Regulations. It is stated that at stage No.9, 12 passengers had boarded into the bus. He issued tickets to 10 passengers. After enquiring about the destination, he demanded Rs.5/- for ticket fare from the passengers mentioned in the second charge and he was in the act of issuing the tickets. The passengers had not paid the fare, and meanwhile the check took place. The checking oﬃcials had obtained the thumb impressions of the passengers on the blank papers, for which he objected. But the checking oﬃcials prepared the passengers statement at the dictation of the checking oﬃcials and the checking oﬃcials had foisted a false case against him. It is also his case that the checking oﬃcials had violated the circular No.49/95-OPD-T dated 24-07-1995 which was issued for job security to the conductors, basing on the settlement entered into on 25-05-1995. The checking oﬃcials had violated the mandatory procedure laid down in MTD 267 in recording the evidence at the time of check. The checking oﬃcials had failed to check the bus cash and of the petitioner. Had the checking oﬃcials checked the bus cash and the money of the petitioner, it could have been cleared then and there itself that he was not at fault. Though it is mandatory on the part of the checking oﬃcials to check the bus cash and of the petitioner, the checking oﬃcials did not check the bus cash and of the petitioner. It is his case that a false enquiry was conducted against him and the enquiry is illegal and invalid. The enquiry oﬃcer failed to take into consideration the material on record. The non-examination of the material witness i.e., the squad jeep driver and the bus driver invalidates the enquiry. He was not given reasonable opportunity. The respondent- management had not examined the passengers and there was no scope to the petitioner to examine the passengers as the checking oﬃcials had not recorded their statement as per the procedure laid down in MTD 267 as the checking oﬃcials had not taken the addresses of the passengers. All these facts go to prove that the enquiry oﬃcer had violated the principles of natural justice. The Depot Manager without seeing the material on record, basing on the perverse ﬁndings of the enquiry oﬃcer, with closed and predetermined mind passed the illegal, invalid, unjust and arbitrary removal order against the petitioner. The appeals made to the higher authorities had become unfruitful. Questioning the order of removal by the statutory authorities he ﬁled W.P.No.9866 of 2000 and the same was disposed of with a direction to approach the Industrial Tribunal. Aggrieved by which he ﬁled W.A.No.547 of 2001 and the same was dismissed which made the petitioner to ﬁle I.D.No.162 of 2002 which was dismissed by order dated 04-01-2003 conﬁrming the order of removal. Questioning which present writ petition is filed. The main contention of the learned counsel for the petitioner is that the enquiry conducted by the enquiry oﬃcer and also the award passed by the Labour Court are perverse as it is based on no evidence. It is his speciﬁc case that the fact, that the passengers statement was not recorded at the time of check and the TTI had obtained the thumb impressions of the passengers on the blank paper and got recorded the statement of the passengers through the driver of the jeep in which the TTI traveled, was not at all considered by the enquiry oﬃcer in the domestic enquiry or by the Labour Court while exercising the power under Section 11-A of the I.D.Act. He submits that had the learned Labour Court appreciated the evidence on record, it could have been cleared that the statement of the passengers was not recorded at the time of the check. On behalf of the respondent-Corporation, counter- affidavit has been filed stating that the explanation given by the petitioner in response to the charge sheet was unsatisfactory, therefore, an enquiry oﬃcer was appointed for conducting enquiry. Considering the merits and demerits of the case and following the principles of natural justice, an enquiry was conducted and found the petitioner guilty of charges in his enquiry report dated 04-12-1999. It is also stated that the petitioner was issued a show cause notice of removal on 08-02-2000 and he was ﬁnally terminated from his services on 12-02-2000. The appellate and review authorities also conﬁrmed the order of punishment imposed by the Depot Manager vide proceedings dated 11-04-2000 and 04-05-2000 respectively. It is also stated that the petitioner raised an industrial dispute in the Labour Court, Anantapur, in I.D.No.162 of 2002. Since all the charges are proved against the petitioner, the Labour Court, Anantapur, passed an award dated 04-01-2003 dismissing the petition and conﬁrming the punishment imposed by the disciplinary authority. In support of the averments made in the counter- aﬃdavit, learned counsel for the respondent submitted that since the authority under the statute, after considering the material on record, passed the order of removal of the petitioner from service and which was conﬁrmed by the Labour Court, there is no necessity warranting this Court to interfere with the impugned award under Article 226 of the Constitution of India. What is to be looked into in this case is whether the Labour Court considered the speciﬁc averments raised by the petitioner which were not speciﬁcally denied by the Corporation and thereby it exercised the power under Section 11-A of the I.D.Act, and whether the impugned award suffers from the element of perversity. The petitioner was a conductor in APSRTC, Rajampet Depot. On 18-09-1999, while he was conducting the bus bearing No.8433 on the route Kodur-Nethivaripalli, when the bus was proceedings between stages 9/10 i.e., Vaddipalli, the Travelling Ticket Inspector of the Headquarters Enforcement Squad, Tadipatri, exercised a check and detected certain cash and ticket irregularities, they issued a charge memo to the petitioner, and they also obtained statement of the passengers. The main allegation against the petitioner is that he collected fare from two lady passengers at Rs.2-50 ps. per head (total Rs.5/-) and failed to issue tickets. It is also alleged that the said passengers were travelled between Kodur-Vaddipalli Ex.stage 9 to 9/10 and that the petitioner had collected the fare from them at Kodur, which is boarding stage itself. It is also alleged that on sighting the TTIs, the petitioner tried to snatch the tickets and punched improperly and that the TTIs conﬁscated the ticket Nos.430/2199996 to 997 of Rs.2.50 denomination from the hands of the petitioner treating them as top punch tickets. The further case of the TTIs is that since the passengers and others were illiterates, they asked their jeep driver to record the statement of the passengers. He read above loudly to the passengers ticketless and obtained their thumb impressions. It is also alleged that the petitioner refused to attest the said statement of the passengers, and therefore, they obtained the signature of the driver of the bus. It is also alleged that the petitioner instigated the other passengers to disturb the work of the TTIs and as the passengers created adverse atmosphere, they went away with available record. The TTIs sent a special report and seized SR to the respondent. On receiving the special report from the TTIs, the respondent placed the petitioner under suspension and issued a charge sheet on 30-09-1999. It is stated that as the petitioner did not submit any explanation to the charge sheet, the respondent ordered domestic enquiry. The enquiry oﬃcer recorded the statement of the petitioner and also examined S.Prabhakar, TTI, HES, Tadipatri. The petitioner cross- examined the said witness. Then the enquiry oﬃcer submitted a report holding that four charges levelled against the petitioner had been proved. The respondent furnished the copies of the enquiry report and other documents and directed the petitioner to furnish his objections. The petitioner submitted his objections on 20- 12-1999 and the respondent issued a show cause notice of removal on 08-02-2000. The petitioner submitted his explanation to the show cause notice of removal on 14-02-2000. The respondent passed the orders on 17-02-2000 removing the petitioner from service. The petitioner preferred an appeal but the same was rejected. Then he ﬁled a revision petition, but the same was unsuccessful and in the above circumstances he filed the ID. The Labour Court framed the following points for consideration: 1) Whether reasonable opportunity has been given to the claimant at the time of enquiry or not? 2) Whether the alleged charges levelled against the claimant have been proved or not? 3) Whether the punishment is grossly disproportionate to the proved misconduct? After considering the submissions made by the learned counsel appearing for both sides, the Labour Court came to a conclusion that the opportunity was given to the petitioner at the time of enquiry and the charges levelled against the petitioner have been proved and the punishment imposed on the petitioner was in accordance with law. Before the enquiry oﬃcer in his explanation and before the labour Court, the constant stand of the petitioner was that he has not collected the fare but he was about to issue the tickets to the passengers, therefore, he has neither collected the fare nor issued the tickets and the two passengers never gave statement against the petitioner, but the TTI obtained the thumb impressions of the passengers on the blank paper and later on got recorded the statement of the passengers through the driver of the jeep and also obtained the signature of the driver of the bus later on, on the said statement. The said fact is clear on veriﬁcation of the record with regard to the paper containing the alleged statement of the passengers. The learned counsel for the petitioner submits that either the enquiry oﬃcer or the labour court considered the said aspect. Once the petitioner proves that the passengers never made a statement at the time of exercising the check and the TTI had obtained the passengers’ thumb impressions on the blank paper, there could not be any case against the petitioner. That could have been possible only when the labour Court, which was a Court of enquiry, ﬁnd out the fact based on the record available before it. Learned counsel would submit that the entire award reveals the consideration of the submissions made by the petitioner and the respondent, but it never veriﬁed the records available, therefore, he submits that it is a case of no evidence and the labour Court had not exercised its power under Section 11-A of the I.D.Act and it also suﬀers from the element of perversity. In the proceedings dated 19-02-2000, issued by the Depot Manager removing the petitioner from service, it is recorded in connection with charge No.2 that the conductor had denied the charges. He stated that as alleged by the TTIs he did not collect the money, he enquired the passengers and giving tickets duly asking money towards the requisite fare. The TTIs had checked the bus and taken over the tray without listening anything and taken the signature of the driver and thumb impressions of the passengers on a blank paper without taking addresses of the passengers. He also added that the TTIs did not check the private cash and bus cash. He also added that there were no punching marks on the tickets. The impugned award does not reveal that the Labour Court had veriﬁed the records produced by the management at the time of adjudicating the matter. It appears that the Labour court proceeded only considering the arguments of either side without verifying the record and without appreciating the evidence on record. The power under Section 11-A of the I.D.Act are so wide so as to enable the Labour Court to exercise powers in a judicious and justiﬁable manner, as to whether the delinquent employee had been given a reasonable opportunity to prove his case, as to whether the respondent oﬃcials who made allegations against the petitioner had proved allegations levelled against the delinquent employee based on the relevant evidence and as to whether the evidence on record was suﬃcient to prove the allegations levelled against the delinquent employee. Having regard to the facts and circumstances of the case, with reference to the principles of natural justice, with reference to the consideration of the evidence on record submitted by the enquiry oﬃcer and with reference to the evidence on record before the labour Court, if the labour court, in the course of adjudication of proceedings, should satisfy that the order of discharge or dismissal was not justiﬁed, it may by its award set aside the order of discharge or dismissal or directing reinstatement of workman on such terms and conditions, if any, as it thinks ﬁt or give such other relief including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. What is relevant in this case is, that the order of removal or dismissal is justiﬁable or not. It should be based only on the evidence on record, and it could be possible for the Labour Court to come to the conclusion on conscious veriﬁcation of the record available with it at the time of adjudication of the matter. In the instant case, the impugned award does not reveal that the labour Court veriﬁed the record placed before it for two reasons viz., that the documents made available to the labour court were not marked and there is no discussion about the nature of the contents of the documents on record as to what is the veracity of those contents, particularly, in view of the categorical contention of the petitioner that the passengers never gave a statement against the petitioner at the time of the check and the TTI had obtained the thumb impressions of the passengers on the blank paper and later on got recorded the required statement on their own in the absence of the passengers as if the statements had been made by the passengers, through the driver of the jeep in which he traveled. To disprove this contention, the driver of the jeep and the driver of the bus were not examined, who are the witnesses on behalf of the department and who are the employees of the Corporation and the whole domestic enquiry is based on the statement of TTI who is responsible for making the allegations against the petitioner and no reason has been assigned as to why the driver of the bus and jeep driver were not examined. The non-examination of these two witnesses and making reliance on the statement of the TTI, who is the sole cause for making allegations against the petitioner and who is the checking authority, either in the domestic enquiry or in the Labour Court, does not amount to proving the case beyond any reasonable doubt. Therefore, any order passed either by the competent authority under the charge sheet or by the Labour Court, while exercising the power under Section 11-A of the I.D.Act, can be said to be an order or award on ‘no evidence’ and suffers from the element of perversity. In the instant case, for the reasons stated supra, I am of the view that the impugned order suﬀers from the element of perversity on the ground that the Labour Court did not consider the documentary evidence on record and there was no proper veriﬁcation of the record and no documents are marked in spite of availability of the same at the time of adjudication of the matter. Therefore, it is a matter to be reconsidered by the labour Court. Hence, I deem it appropriate to set aside the impugned award of the Labour Court. Accordingly, the writ petition is disposed of and the impugned award in I.D.No.162 of