IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SIXTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION Nos.3750 of 1997 and 11861 of 1998 WRIT PETITION NO:3750 of 1997 Between: The Depot Manager, APSRTC, Hyderabad-II Depot, HYDERBAD. ..... PETITIONER AND 1 K.Jogi Reddy, S/o. K.Venkat Reddy, H.No.1-69, Chaitahypuri, Dilsukhnagar, HYDERBAD. 2 The Presiding Officer, Labour Court-1, HYDERABAD. .....RESPONDENTS Counsel for the Petitioner:MR. V.S.K.RAMA RAO FOR MR.K.MADHAVA REDDY Counsel for Respondent No.1:MR.V.SUDHAKAR REDDY Counsel for Respondent No.2: NONE APPEARED WRIT PETITION NO:11861 of 1998 Between: K. Jogi Reddy S/o Venkata Reddy R/o 1-69, Chaitanyapuri, Dilsukhnagar, Hyderabad ..... PETITIONER AND 1 The Depot Manager, A.P.S.R.T.C., Hyderabad-II Depot, Dilsukhnagar, Hyderabad 2 The Presiding Officer, Labour Court-I, Andhra Pradesh Hyderabad. .....RESPONDENTS Counsel for the Petitioner:MR.V.SUDHAKAR REDDY Counsel for Respondent No.1: MR.V.S.K.RAMA RAO FOR MR.K.MADHAVA REDDY The Court made the following : COMMON ORDER: These two writ petitions arise out of the same award of the Presiding Officer, Labour Court-I, Hyderabad (respondent No.2). Hence, they are heard and being disposed of together. WP.No.3750 of 1997 is filed by the Depot Manager, Andhra Pradesh State Road Transport Corporation (for short ‘the Corporation’), Hyderabad II Depot, Hyderabad questioning the award passed by respondent No.2 whereby he directed the petitioner to reinstate respondent No.1 with continuity of service and 50% of back wages. WP.No.11861 of 1998 is filed by the employee, Conductor, questioning the award to the extent he was denied 50% of back wages. For convenience, the parties are referred to as they are arrayed in Writ Petition No.11861 of 1998. The petitioner is a Conductor having been appointed in the Corporation in 1981. On the fateful day i.e. 02.04.1987, when he was conducting bus bearing No.AAZ 5518 on the route Arutla – Manchal, a check was made at Lingampally X Road at about 17.15 hours. The checking officials found that the petitioner failed to issue tickets to 28 passengers, which lead to initiation of disciplinary proceedings against the petitioner, wherein six charges were framed against him. The petitioner was removed from service by order, dated 13.07.1988 which was questioned by him in Writ Petition No.17410 of 1989, and the same was allowed by this Court vide it’s order, dated 31.01.1990 on the ground that the order of removal was not preceded by holding of an enquiry. The petitioner contended that despite the said order, he was not taken back into service and nearly after 1½ years, the Corporation commenced holding of enquiry by issuing notice, dated 25.07.1991 and he was treated as under deemed suspension. The petitioner questioned the same by filing Writ Petition No.10505 of 1991 and sought for directions to respondent No.1 for his reinstatement into service. In the said writ petition, this Court issued interim direction to the Corporation to pay subsistence allowance and by another order, to pay salary to the petitioner from 25.07.1991. He alleged that neither subsistence allowance nor salary was paid despite the said directions. Eventually, by order, dated 16.03.1992, the petitioner was removed from service by respondent No.1 holding that he was guilty of misconduct on the ground that six charges framed against him were proved. He raised industrial dispute, which was registered as I.D.No.40 of 1994, under Section 2- A(2) of the Industrial Disputes Act, 1947, before respondent No.2, who, by the impugned award, granted the relief, as mentioned above, in favour of the petitioner. I have heard the arguments of the learned counsel appearing for the respective parties in both the cases and perused the record. The charges framed against the petitioner read as under: 1. For having violated the rule Issue & Start which constitutes misconduct in terms of Regulations 28 (xxxii) of A.P.S.R.T.C. Employees (Conduct) Regulations, 1963. 2. For having failed to collect fare and issue tickets to two passengers found travelling without tickets from Ibrahimpatnam to Arutla, ex-stages No.9 to 13 Regulations 28(via) of A.P.S.R.T.C. Employees (Conduct) Regulations, 1963. 3. For having failed to collect the fare and issue of tickets to six adults and two chargeable children found travelling without tickets who boarded your bus at Ibrahimpatnam and bound for Manchal Ex.Stages No.9 to 12 which constitute misconduct in terms of Regulations 28(via) of APSRTC Employees (Conduct) Regulations, 1963. 4. For having failed to collect fare and issue tickets to 3 passengers found travelling without tickets who boarded your bus at Nomula and bound for Chankhanguda, ex- stages No.11 to 12/13 which constitutes misconduct in terms of Regulations 28(via) of A.P.S.R.T.C. Employees (Conduct) Regulations, 1963. 5. For having failed to collect the fare and issue tickets to 15 passengers found travelling without tickets who boarded your bus at “Nomula and bound for Manchal ex-stages 11, 12 which constitutes misconduct in terms of Regulations 28(via) of A.P.S.R.T.C. Employees (Conduct) Regulations. 6. For having failed to close the tray numbers of all denomination upto the point of check which constitutes misconduct in terms of Regulations 28 (xxxii) of APSRTC Employees (Conduct) Regulations, 1963. The enquiry Officer examined Sri Md.Yakub, one of the checking officials, and also the petitioner. He considered the spot explanation of the petitioner and also the statements of the TTI and passengers. The sum and substance of all the six charges is that the petitioner failed to issue tickets to 28 passengers, who boarded the bus at different stages between 9 and 11. The consistent stand of the petitioner, which was recorded at the time of check and also in the enquiry, is that he never had the intention of violating the rule “issue and start”; that from out of the passengers, who boarded the bus, one old aged person was suffering from serious ill-health; that all the passengers in the bus insisted and forced him to allow the bus to proceed, before all the tickets were issued and that by the time the check was made, he already issued 43 tickets. He maintained that both on humanitarian consideration of saving the life of a passenger and also under severe pressure from the co-passengers, he could not strictly adhere to the rule “issue and start” and while he was in the process of issuing tickets, the check was made. He submitted that he had absolutely no mala fide intention in not issuing tickets to 28 passengers. The petitioner deposed that the checking officers imposed fine of Rs.100/- on each of the ticket-less passengers and recorded their statements. Sri Md.Yakub, one of the checking officers, deposed before the enquiry Officer that the petitioner issued 43 tickets to the passengers, who boarded the bus at Ibrahimpatnam in addition to 16 direct passengers. He further deposed that he observed the serious condition of an old aged passenger and other passengers informed him that they forced the Conductor to take the bus as early as possible to Arutla. He also deposed that he recorded their statements to that effect apart from obtaining the spot explanation of the petitioner. In his cross- examination, the said checking officer stated that the petitioner was in the process of issuing tickets to the passengers at the time of check and that the passengers informed him that they compelled the petitioner to allow the vehicle to proceed to Arutla, as the condition of one of the passengers was serious and that he also observed the seriousness of the said passenger. On an analysis of the above evidence, the enquiry Officer rendered the following findings under charge No.2: “On perusal, the contention of the conductor that he moved the bus on the pretext as there was a serious old aged passenger in the bus due to force of the passengers to take him to Arutla immediately, is some have (sic – what) convincing because the TTI in his statement deposed that when he entered in the bus, the passengers informed him that they demanded the conductor to take the vehicle to Arutla due to a serious passenger in the bus. The TTI submitted that he too observed a serious male passenger in the bus at the time of check. The further contention of the conductor that he had no mala fide intention taken the vehicle on the force of the passengers as there was a serious passenger. He contended that he issued 43 tickets to the passengers at I.B.Patnam and was in act of issuing tickets to the remaining, is also convincing, since the TTI deposed that the conductor had no mala fide intention on his opinion, as he issued 43 tickets to the passengers including lower and higher denominations and remaining 28 ticket less passengers were to be travelled to different destination of ticket value of Rs.1, 1.50 and Rs.2/-. He stated that the bus was carrying capacity of 88 passengers including these 28 ticket less. He submitted that though the conductor moved the bus on the existence of a serious passenger but his negligence for the violation of the rule is appeared. By this, it is clear by the statement of the TTI and passengers statement that the conductor had taken the vehicle by the force of the passengers in order to transport a old aged male passenger, who was in serious condition to Arutla as early as possible. The conductor also submitted the same statement in his spot explanation. On observing the SR, the conductor had issued 43 tickets to the passengers who boarded at Ibrahimpatnam. They were all to bound to different destinations. The passengers of charge No.2 were boarded at Ibrahimpatnam and bound for Arutla. The conductor had issued tickets to other passengers who were travelling to Arutla numbering about 16. The TTI statement is clear that the conductor had no mala fide intention but his negligence is clearly existed for the violation of rule. By this, it is further clear that the conductor moved the bus duly violating the rule on the force of the passengers to take a serious passenger immediately to Arutla and was still issuing the tickets, who were not particularly one destination but were different destinations and also boarded different places such as Ibrahimpatnam and Nomula. Whatever may be the reason, it is the fundamental duty to follow the rule issue and start, then only allow the bus to move. Thus, though the conductor had no mala fide intention to defraud the revenues of Corporation but his negligence for violation of the rule is clearly existed. As such the conductor failed to collect the fare and issue tickets to 2 passengers, who were found travelling without tickets from Ibrahimpatnam to Arutla ex.stages 9 to 13.” (emphasis added) Similar findings have been rendered in respect of all other charges and the enquiry Officer held all the charges proved. Respondent No.1, as mentioned supra, imposed the penalty of removal of the petitioner. Respondent No.2 agreed with the findings of the enquiry Officer that the petitioner violated the rule “issue and start”, but having taken into consideration the extenuating circumstances based on the statements of the passengers and checking official (Exs.M.2 and M.22), the petitioner was reinstated into service with 50% back wages. In my considered view, the enquiry Officer and respondent Nos.1 and 2 committed serious error in holding that the charges against the petitioner are proved. Undoubtedly, in the technical sense of the term, the petitioner violated the rule “issue and start”. Under Regulation 28(vi)(a) of APSRTC Employees (Conduct) Regulations, 1963, failure on the part of the Conductor/Booking Clerk to issue valid passenger/luggage ticket, in accordance with the order passed by the Corporation or any other authority under the Corporation, from time to time, before starting or allowing a bus to be started from the point, where such passenger/luggage, boarded or loaded, as the case may be in respect of mofussil services, constitutes misconduct. While dealing with the term “misconduct”, the Supreme Court in Union of India v. J.Ahmed[1] held that conduct, which is blameworthy for the Government servant in the context of Conduct Rules, would be misconduct. Placing reliance on the judgment in Pearce v Foster (1886) 17 QBD 536, it held that if a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct. The Supreme Court also relied on Laws v. London Chronicle (Indicator Newspapers) (1959) 1 WLR 698 to hold that a disregard of essential condition of the contract of service may constitute misconduct. Stroud’s Judicial Dictionary described misconduct as “Misconduct means, misconduct arising from ill-motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.” In Union of India (1 supra), the Supreme Court however clarified that gross or habitual negligence in performance of duty may not involve mens rea, but may still constitute misconduct for disciplinary proceedings. In State of Punjab v. RamSingh, Ex-Constable [2] , the Supreme Court, while dealing with what constitutes misconduct, held: “The word ‘misconduct’ though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve.” The admitted facts in this case demonstrate without any cavil of doubt that the circumstances forced the petitioner to violate the Corporation’s rule “issue and start”. The charges have not imputed any ill motive to the petitioner in such violation. In his report, the enquiry officer clearly accepted the stand of the petitioner that he had no ill-intention or bad motive in not issuing tickets. Having said so, he recorded the finding that the petitioner was negligent in issuing tickets. On a careful scrutiny of the facts and applying the ratio laid down in the judgments discussed above, in my view, the finding of the enquiry officer that the petitioner was negligent in issuing tickets is absolutely unwarranted. When a passenger who boarded the bus was in serious condition, the humanitarian considerations warrant that all efforts are made to save his life. It would be a travesty of justice if a person in the place of the petitioner is expected to follow the rule “issue and start”, while the life of a passenger is in danger. Any person having the sense of responsibility and concern for the fellow human being would have reacted and behaved in the same manner in which the petitioner did. Indeed, the petitioner would have committed a serious human rights violation, if he had rigidly followed the rule “issue and start” without showing urgency in saving the life of a passenger. The enquiry Officer completely failed to take into consideration this vital aspect. Though, ordinarily, this Court does not substitute it’s view to the view of the domestic Tribunal, on the unusual facts of this case, I am constrained to hold that the approach of the enquiry Officer and respondent Nos.1 and 2 is perverse. The punishment imposed upon the petitioner on the basis of the finding of the enquiry Officer cannot be sustained in law. Respondent No.2 completely failed to delve into this aspect and mechanically accepted the findings of the enquiry officer and respondent No.1. In my considered opinion, the petitioner has not committed any misconduct in it’s true sense to deny him the back wages. Indeed, for no fault on his part, he suffered the ignominy facing the disciplinary proceedings for many years. From the narration of events referred to above, it is clear that the petitioner was kept under suspension in 1987 and was removed from service in March, 1992. In the interregnum, the Corporation evidently failed to take him into service and pay subsistence allowance/salary, despite the directions issued by this Court. Sri V.S.K.Rama Rao, learned counsel representing the learned Standing Counsel for respondent No.1 strenuously contended that even if there is no misconduct on the part of the petitioner, granting of back wages is not automatic. In support of his contention, the learned counsel relied on the judgments of the Supreme Court in Mahindra and Mahindra Ltd v. N.B.Narawada[3], M.P.Electricity Board v. Jagdish Chandra Sharma [4], U.P.State Brassware Corporation Limited and another v. Uday Narain Pandey [5] , J.K.Synthetics Ltd., v. K.P.Agrawal and another [6] and Cotton Corporation of India Limited v. Presiding Officer, Labour Court, Guntur and another [7]. I have considered the said judgments and I find that in J.K.Synthetics Limited (4 supra), the Supreme Court held that the view of the Courts on the issue of award of back wages has undergone a significant change in the last few decades and that granting of back wages is no longer considered automatic or natural consequence of reinstatement. In this regard, the Supreme Court referred to the judgments in U.P.State Brassware Corporation Limited (3 supra), Allahabad Jal Sansthan v. Daya Shankar Rai [8] and Kendriya Vidyalaya Sangathan v. S.C. Sharma[9], and held that even if the Courts find it necessary to award back wages, whether back wages should be awarded fully or only partially depends upon the facts and circumstances of each case. It further held that if the employee received any income during the relevant period on account of alternative employment or business, that is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned i n G.M., Haryana Roadways v. Rudhan Singh [10] a n d U.P. State Brassware Corporation Limited (3 supra). It also held that the employee shall plead that he was not gainfully employed from the date of his termination and the burden will then shift to the employer. It, however, observed that there is no obligation on the terminated employee to search for or secure alternative employment. It is significant to note that the Supreme Court distinguished the cases pertaining to illegal retrenchment or termination and held that such cases do not fall within the category of cases decided by it in the said judgment. Having carefully considered the judgments referred to above, in my opinion, the Corporation cannot deny the petitioner the back wages, because he was not guilty of any misconduct. In a case, where the employee is found not guilty of misconduct unless the Court is satisfied that the employee was gainfully employed, there is no option for it other than awarding back wages, lest it amounts to punishing an employee without there being any fault on his part. In the instant case, the petitioner was not denied 50% back wages on the ground that he was gainfully employed. In fact, the Corporation has never raised any such issue of the alleged gainful employment of the petitioner. Therefore, even though specific plea was not raised by the petitioner before respondent No.2, he cannot be denied the back wages merely on that account. For all the above-mentioned reasons, WP.No.3750 of 1997 is dismissed and WP.No.11861 of 1998 is allowed. The petitioner is entitled to full back wages, which shall be paid to him within a period of eight (8) weeks from the date of receipt of a copy of this order. C.V.NAGARJUNA REDDY, J 26th NOVEMBER, 2008. Note: L.R.Copies to be marked. kvni [1] (1979) 2 SCC 286 [2] (1992)4 SCC 54 [3] (2005) 3 SCC 134 [4] (2005) 3 SCC 401 [5] 2006(1) SCC 479 [6] 2007(2) SCC 433 [7] 2006(5) ALT 318 (D.B.) [8] (2005) 5 SCC 124 [9] (2005) 2 SCC 363 [10] (2005) 5 SCC 591