IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY SECOND DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT APPEAL NO : 1037 of 2006 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 22/08/2005 in WP NO : 20719 OF 1999 on the file of the High Court) Between: The Depot Manager, APSRTC, Khammam Depot, Khammam District. . ..... APPELLANT AND 1 S. Srinivas Rao S/o. Sathaiah R/o H.No.13-5-165, New water tank, Bhadrachalam, Khammam District 2 The Industrial Tribunal-Cum-Labour Court, Rep. by its Presiding Officer, Warangal. .....RESPONDENTS Counsel for the Appellant: SMT.P.RAJANI REDDY Counsel for the Respondent No.1: Sri G. Ravi Mohan Counsel for the Respondent No.2: GP FOR LABOUR The Court made the following : THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTIE VILAS V. AFZULPURKAR WA Nos.1037/2006 JUDGMENT (per the Honourable Sri Justice A.Gopal Reddy) Depot Manager, APSRTC, Khammam Depot, Khammam District ﬁled this intra court appeal challenging the order dt. 22-8-2005 passed by the learned single Judge of this court in WP No.20719/1999, whereunder he set-aside the award passed by the Presiding Oﬃcer, Industrial Tribunal-cum- Labour C o u r t , Warangal (hereinafter referred to as “the Tribunal”) dt. 7-6-1996 in ID No.5/1993 and directed reinstatement of respondent No.1 into service as a fresh conductor. The ﬁrst respondent herein is the writ petitioner and the appellant herein is the second respondent in the writ petition. For the sake of convenience, the ﬁrst respondent will be hereinafter called as “the workman” and the appellant will be hereinafter called as “the Corporation” The workman was appointed as Conductor into the services of the Andhra Pradesh State Road Transport Corporation with eﬀect from 5-5-1988. While he was conducting the bus on the route Manuguru to Kothagudem, a check was exercised at Super Bazar, Kothagudem and he was found with some cash and ticket irregularities for having collected the fare of Rs.15/- from three individual passengers at Rs.5/- from each who were alighting without tickets at Kothagudem and for having failed to close the tray numbers of Rs.5/- denomination as against stage Nos.7 and 6 and for having remitted short cash of Rs.110/-, which amount to misconduct. On the basis of the above check a charge sheet was issued on 17-12-1990 framing the following four charges. 1. For having violated the rule issue and start which is a misconduct under Reg. 28(vi)(a) of APSRTC Employees (Conduct) Regulations, 1963. 2. For having collected fare of Rs.15/- from three individual passengers (ie., 3 x 5.00=Rs.15/-) who boarded the bus at Palvancha and alighting without tickets at Kothagudem, ex.stages from 7 to 6 and failed to issue tickets, which is a misconduct under Reg.28(vi)(a) of APSRTC Employees (Conduct) Regulations, 1963. 3. For having failed to close the tray numbers of Rs.5/- denomination against the stage Nos.7 and 6, which is a misconduct under Reg.28 (xxxi) and (xxxii) of APSRTC Employees (Conduct) Regulations, 1963. 4. For having remitted short of Rs.10/- in the bus cash which is a misconduct under Reg.28(xxxiv) of APSRTC Employees (Conduct) Regulations, 1963. Having not satisﬁed with the explanation submitted by the workman to the charge sheet, an enquiry was initiated. The Enquiry Oﬃcer after conducting enquiry submitted his report holding that all the charges framed against the workman have been proved. Accepting the enquiry report, the Corporation issued a show-cause notice on 3-5-1995. After considering the enquiry report and other material made available on record, the Corporation terminated the services of the workman by proceedings dt. 27-5-1991. The workman moved the Industrial Tribunal under Sec. 2-A (2) of the Industrial Disputes Act (for short “the Act”) by ﬁling ID No.5/1993. The Tribunal framed the following point for consideration: “Whether the respondent is justiﬁed in removing the petitioner from his service as conductor? If not, to what relief the petitioner is entitled to? The Tribunal after considering the evidence adduced by the parties passed an award holding that the workman is not entitled for any relief as claimed by him and dismissed ID, which has been successfully challenged by the workman before the learned Single Judge. The learned single Judge allowed the writ petition setting aside the award passed by the Tribunal and directed the Corporation to reinstatement the workman into service as a fresh Conductor. While allowing the writ petition, learned single Judge observed as under: “No doubt, the petitioner gave an explanation that he was in the process of issuing tickets and the passengers under the charge boarded the bus at Palvancha ex-stage No.7 and were alighting the bus at Kothagudem ex-stage No.6. In the meanwhile, the check had taken place. Being short distance, he could not issue tickets to all of them immediately and infact there were more number of passengers in the bus and that was the reason he could not complete the tickets at stage No.7 before it reaches stage No.6. Thus, the explanation given by the petitioner is not unusual and these things do happen in the normal course of conducting a bus. However, it is misconduct on the part of the petitioner and the same was proved. This court cannot go into as to the suﬃciency of the evidence in a domestic enquiry conducted in the departmental proceedings. Therefore, the conclusion reached by the Labour Court cannot be found fault except the ﬁnding that there was a mala ﬁde intention on the part of the petitioner and the same is clearly established without there being a charge to that extent. Further, the Labour Court has not examined as to the proportionality of the punishment. Admittedly, the petitioner’s past service was clean and this being ﬁrst misconduct on the part of the petitioner and the petitioner himself confessed to this misconduct saying that he was in the process of issuing tickets, therefore he was guilty of not issuing tickets to those three passengers immediately the matter could have been taken leniently. On the other hand, the Labour Court had not taken a lenient view of the matter while exercising its power vested under Sec. 11-A of the Act.” Smt. P.Rajani Reddy, learned counsel for the Corporation submitted that the learned single Judge having held that court cannot go into the suﬃciency of the evidence in a domestic enquiry conducted and reached conclusion by the Tribunal cannot be found fault ought not to have been interfered with the discretion exercised by the Tribunal in dismissing the industrial dispute. Once workman found guilty of ﬁnancial delinquency having accepted that he collected Rs.5 each from 3 passengers and has not issued tickets, learned single Judge ought to have dismissed the writ petition. The very fact workman attesting the statement of the passenger at the time of check in the presence of checking oﬃcials without any dispute itself shows the misconduct committed by him. Spot explanation given by the workman that he collected Rs.5/- from each of the three passengers who boarded the bus at Palavoncha and on the call made by some passengers he has gone inside the bus and could not issue tickets, itself shows his mala ﬁde intention in not issuing tickets. Once the award of the Tribunal was based on a comprehensive evaluation of the evidence produced during the domestic enquiry, the learned single Judge committed a grave error by re-evaluating the evidence in ordering reinstatement afresh under Sec. 11-A of the Act. In support of her contentions she placed reliance on the following judgments: 1. THE DEPOT MANAGER, APSRTC, PARKAL BUS DEPOT, WARANGAL DISTRICT V. P. DEVENDER REDDY AND TWO OTHERS [1]. 2. REGIONAL MANAGER, U.P.SRTC V. HOTI LAL[2] 3. REGIONAL MANAGER, RAJASTHAN SRTC V. SOHAN LAL[3] 4. DEPOT MANAGER, APSRTC V. B. SWAMY[4] 5. KARNATAKA BANK LTD V. A.L.MOHAN RAO[5] On the other hand, Sri G. Ravi Mohan, learned counsel appearing for the workman while supporting the discretion exercised by the learned single Judge contended that the Tribunal failed to consider the proportionality of punishment in exercise of its jurisdiction under Sec. 11-A of the Act and the learned single Judge rightly exercised the discretion and directed the Corporation to give re-appointment afresh, which cannot be interfered with under C.15 of the Letters Patent. To buttress his submission, strong reliance is placed on the judgments of the Apex Court in (1) MAVJI C. LAKUM V. CENTRAL BANK OF INDIA[6] (2) DIVISIONAL MANAGER, LIFE INSURANCE CORPORATIONOF INDIA V. RAJAN S.S.[7] and (3) DIVISIONAL MANNER, ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION V. E. RAJA REDDY[8]. In the light of rival submissions, as referred to above, the only point that arises for our consideration is: “Whether the discretion exercised by the learned single Judge in setting aside the award passed by the Tribunal and directing the Corporation to reinstate the workman into service as a fresh conductor can be sustainable or not? We are, however, relieved of the necessity to delve deep into the question of proportionality of punishment for nullifying the order of punishment imposed in view of the decisions of the Full Bench in V. RAMANA V. APSRTC [9] and the Division Bench in THE DEPOT MANAGER, APSRTC, PARKAL BUS DEPOT WARANGAL DISTRICT (1 supra). Chief Justice S.B. Sinha (as he then was) speaking for the Full Bench V. RAMANA (9 supra) in on a reference being made to resolve the following questions of law, (1) In case where there has been no criminal prosecution resulting in conviction whether the quantum of amount misappropriated or embezzled by a delinquent oﬃcial can be taken into consideration in deciding the adequacy or otherwise of the punishment? (2) If the amount embezzled or misappropriated is too meagre and the punishment given is removal from service, which is the ultimate punishment, can it be termed as shockingly disproportionate? considering the three charges framed against the Conductor and after referring various judgments, answered the reference holding that the quantum of amount misappropriated or embezzled by a delinquent oﬃcial may not be taken into consideration in deciding the adequacy or otherwise of the punishment and the punishment of removal from service for such embezzlement or misappropriation cannot be termed as shockingly disproportionate. Another Division Bench of this court in THE DEPOT MANAGER, APSRTC, PARKAL BUS DEPOT, WARANGAL DISTRICT V. P. DEVENDER REDDY AND TWO OTHERS (1 supra) considering the interpretation of Sec.11-A of the Act in several judicial pronouncements allowed the writ appeal setting aside the similar order, passed by the learned single Judge, holding as follows: “…. the learned Single Judge was not at all justiﬁed in examining the suﬃciency and adequacy of evidence produced before the enquiry oﬃcer. By doing so, he assumed the role of appellate authority and over-turned the fact based ﬁndings recorded by the enquiry oﬃcer. Another grave error committed by the learned single Judge is that he assumed the role of the Tribunal and applied the doctrine of proportionality for nullifying the order of punishment. It need no reiteration that in exercise of the power vested in it udnerSec.11-A, even the Tribunal cannot interfere with the discretion exercised by the employer to impose the penalty of removal from service on an employee found guilty of ﬁnancial misdemeanor, violence or other similar acts of grave misconduct. Therefore, the direction given by the learned single Judge for re-appointment of respondentNo.1 cannot be approved.” I n HOTI LAL (2 supra), services of conductor of U.P.SRTC were terminated on similar charges. The order of termination was conﬁrmed by the Appellate Authority and also learned single Judge of the High Court of Allahabad at Lucknow Bench, Lucknow. On appeal being ﬁled by the employee, the Division Bench set aside the order of termination leaving it open to the employer to award any punishment, but not of removal or termination or compulsory retirement. On further appeal by the employer, the Supreme Court held thus: “10 ) It needs to be emphasized that the Court or Tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment does not commensurate with the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Court's order would go to show, no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. (See Alexander Machinery Dudley Ltd. v. Crabtree (1974 lcr 120 ). A mere statement that it is disproportionate would not suﬃce. A party appearing before a Court, as to what it is that the Court is addressing its mind. It is not only the amount involved but the mental set up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in ﬁnancial transactions or acts in a ﬁduciary capacity, highest degree of integrity and trust- worthiness is must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of learned single Judge upholding order of dismissal. I n SOHAN LAL (3 supra) the services of conductor appointed on daily wage basis were terminated by Rajasthan State Road Transport Corporation. The termination order was unsuccessfully challenged by Conductor before the Labour Court under Sec. 33(2-A) of the Act before the Industrial Tribunal and also before the learned single Judge of the Rajasthan High Court, Jaipur Bench. On a special appeal ﬁled before the Division Bench, learned counsel for the Conductor makes a statement that the writ petitioner is prepared to forego the entire salary for the period and he would be satisﬁed, if at least, reinstatement is ordered. On making such statement, learned Division Bench directed the counsel for the Corporation to ascertain the views of the Department. On the next date of hearing, it was represented by the learned counsel for the appellant that he is willing to forego the salary from 1986 till the date of his reinstatement, within continuity of service and other attendant beneﬁts attached to the said post. Accepting the prayer made by the workman, the Division Bench directed the Corporation to reinstate the workman into service. On further appeal by the Corporation, the Supreme Court while holding that, “We notice from the ﬁnding of the Industrial Tribunal that the respondent-workman had indulged in misconduct which has not only led to monetary loss to the Corporation but the Corporation has also lost conﬁdence in the said workman. Therefore, to continue such an employee in the employment of the Corporation by virtue of a judicial order, in our opinion, is an act of misplaced sympathy which can ﬁnd no foundation in law or in equity. The ﬁnding that the workman has committed the misconduct in question of not issuing tickets to passengers is a ﬁnding of fact arrived at by the Tribunal after taking into consideration the evidence recorded therein. This ﬁnding was aﬃrmed by the learned single judge and the High Court has not set aside the ﬁnding. Therefore, the question of moulding the relief on the facts of this case did not arise at all. The oﬀer of the respondent to forego the back wages in lieu of his being reinstated is not an oﬀer to be taken into consideration by the court unless and until the ﬁnding of the Tribunal on misconduct was set aside and having perused the records including the order of the tribunal, we are satisﬁed that this is not one of those cases in which there was room for setting aside such a finding”. allowed the appeal setting aside the order of the Division Bench and restored the order of the Tribunal as aﬃrmed by the learned single Judge. B. SWAMY (4 supra) is a case went from this court, where Conductor who was removed from service after holding an enquiry for his collecting Rs.4/- from each of 16 illiterate lady passengers issued tickets of 0.50 paise denomination and pocketing the remaining amount. On raising an industrial dispute under Sec. 2A(2) of the Act, the Labour Court upheld the removal order passed by the Management. The order of the Labour Court was conﬁrmed by a learned single Judge of this court. On an appeal being ﬁled by the Management, a Division Bench of this court disposed of the appeal with one paragraph order holding that “…Nothing was brought on record by the respondents to show that at any time the appellant was involved in such irregularity. Having regard to the same and especially in view of the 16 passengers overloaded the bus, we feel that the order of termination is quite unjustiﬁed and gave excess gravity to the oﬃce”. On an appeal being preferred by the Corporation, the Supreme Court set aside the order of the Division Bench and restored the order of the learned single Judge dismissing the writ petition holding as under: “We fail to understand how the incident could be characterised as accidental. The mere fact that this was the ﬁrst occasion when the respondent was caught, is no ground to hold that it was accidental. What weighed with the learned Judges was the fact that the respondent had not been found to be involved in such irregularities earlier. In our view that is not very material in the facts of this case. A conductor of a bus enjoys the faith reposed in him. He accepts the responsibility of honestly collecting fares from the passengers after issuing proper tickets and is obliged to account for the money so collected. If conductors were to be dishonest in the performance of their duties, it would cause serious pecuniary loss to the employer. The High Court was therefore, not justiﬁed in observing that the management gave "excess gravity" to the oﬀence. We are constrained to observe that the High Court was not justiﬁed in characterising the order of the management as one induced by exaggeration of the gravity of the oﬀence. The conductor performs only the duty of issuing tickets to the passengers and accounting for the fare collected from the passengers to the management. If he is dishonest in the performance of his duties, he is guilty of serious misconduct and the gravity of the misconduct cannot be minimised by the fact that he was not earlier caught indulging in such dishonest conduct. There is no guarantee that he had not acted dishonestly in the past as well which went undetected. Even one act of dishonesty amounting to breach of faith may invite serious punishment. (para 7) I n MAVJI C. LAKUM (5 supra), on which strong reliance was placed by the learned counsel for the respondent- workman, the appellant who was initially appointed as a Peon in the year 1951 was promoted as Head Peon in the year 1963. While working as Head Peon, a departmental enquiry was conducted against him on the basis of two charge sheets and he came to be discharged from the service. Civil suit ﬁled by him was dismissed. On appeal, the District Court directed reinstatement but denied back wages permitting the bank to hold fresh enquiry. The judgment of the District Court permitting to hold fresh enquiry was challenged before the High Court. Wherein he was awarded 75% back wages from the date of ﬁling the suit. The order of reinstatement has become ﬁnal. Again fresh enquiry was initiated as was directed by the District Court. In that enquiry, he was found guilty of few charges and was given the punishment of discharge. He was given the punishment of stoppage of increments in respect of other charges for which he was found guilty. On dismissal from service by the Disciplinary Authority after considering the explanation, the appellant ﬁled a Department Appeal, which was also dismissed. On dismissal of the Department Appeal, the appellant raised a dispute before the Industrial Tribunal. The Industrial Tribunal came to the conclusion that there was no evidence supporting major charges though there was some misconduct on the part of the appellant. The Industrial Tribunal speciﬁcally held that the proved misconduct was not so serious as to invite the extreme punishment of discharge and set-aside the order imposing punishment of withholding one increment with future eﬀect. Meanwhile, the appellant retired from service. The Bank challenged the award of the Industrial Tribunal by way of writ petition, which was allowed by the learned single Judge of the Gujarat High Court. On an appeal being ﬁled, the Division Bench of Gujarath High Court conﬁrmed the order of the learned single Judge. On further appeal by the workman, the Supreme Court after taking into consideration the arguments of the workman that for 40 long years of his service there was not a single allegation against him and ﬁnding of the Tribunal that he had not only properly worked for 30-31 years but has also got promotion of Head Peon during this period allowed the appeal setting aside the judgment of High Court and restored the award of the Tribunal. The judgment is misplaced to the facts of the present case. Admittedly, in the present case, the Tribunal framed a point, Whether the respondent is justiﬁed in removing the petitioner from his service as Conductor? If not to what relief the petitioner is entitle to? which includes the relief under Sec. 11-A of the Act. The Tribunal after considering the evidence adduced by the parties during departmental enquiry where delinquent has cross-examined TTI on several aspects observed that nothing was elicited in his favour. Added to that, the passengers have clearly stated that they have paid fares at the boarding point itself, which was accepted by the workman. The spot explanation oﬀered by the workman that he has collected Rs.5/- from each of the three passengers who boarded the bus at Palavoncha, and on calling some of the passengers at the rear side of the bus he has gone inside the bus and could not issue tickets was not accepted by the Tribunal. Once the passengers statement was attested by the workman without any dispute confessing the guilt as duly committed by him, there are no compelling reasons to interfere with the order of dismissal from service holding that he is not entitled to any relief as claimed, which includes discretionary relief of reinstatement under Sec.11-A of the Act. The ﬁnding recorded by the Tribunal has been conﬁrmed by the learned single Judge, as referred to above, holding that the misconduct on the part of the petitioner collecting the amount has been proved and he cannot go into as to the suﬃciency of the evidence in a domestic enquiry. Learned single Judge while observing that the Tribunal ought to have taken a lenient view of the matter since the petitioner’s past service was clean and this being the ﬁrst misconduct on the part of the workman and workman himself confessed to this misconduct saying that he was in the process of issuing tickets, allowed the writ petition and ordered for reinstatement of the workman into service as a fresh Conductor. Learned single Judge interfered with the order of the Tribunal mainly on the ground that past service of the workman was clean and the incident being the ﬁrst misconduct. The mere fact that this was the ﬁrst occasion when the workman was caught is