HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.633 of 2005 Dated: 29-06-2010 Between: The Depot Manager, A.P.S.R.T.C., Palakonda Depot & another. … Petitioners And K. Appa Rao & another. … Respondents HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.633 of 2005 ORDER: In this writ petition, the Andhra Pradesh State Road Transport Corporation, through its Depot Manager of Palakonda Depot and Regional Manager, Srikakulam, challenged the validity of the Award, dated 17th June 2004, passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam in I.D.No.75 of 2002. By the aforesaid Award, the Industrial Tribunal allowed the application filed by the 1st respondent- workman under Section 2-A(2) of the Industrial Disputes Act, 1947, and ordered for his reinstatement with continuity of service and back-wages. During the course of arguments, it is reported to this Court that pursuant to the Award of the Tribunal, the 1st respondent is already reinstated into service and is in the verge of retirement, going to retire on 31st of July 2010. Few necessary facts for disposal of this writ petition, are as under : The 1st respondent was working as Assistant Depot Clerk (ADC) in A.P.S.R.T.C., Palakonda Depot. On 8th and 9th of October 1998, he was incharge of the chart dispatching duty. There was another Assistant Depot Clerk by name Sri K.Ananda Rao, who was incharge of cash counter. On 8th of October 1998, at about 21.30 hours, the 1st respondent, on the alleged work of replacing the computer ribbon, entered the room of Sri Ananda Rao, at which time, the said Ananda Rao went out to attend the calls of nature. After his return, he found shortage of cash of Rs.5,400/-. Based on the report of Sri Ananda Rao, a preliminary inquiry was conducted in the matter and having noticed that the said amount was stolen by respondent No.1, regular disciplinary proceedings were initiated. In the disciplinary proceedings initiated against the 1st respondent-workman, the following three charges are framed : “1. For having taken away the bus cash of Rs.5,400/- from cash safe by using duplicate key available with you with a fraudulent motive when the on duty cash counter ADC went for toilets at about 21.30 hours on 8.10.98 and kept the cash along with duplicate key in your carriage bag, which constitutes misconduct under Reg.28(x)(xxxi) of APSRTC Employees (Conduct) Regulations, 1963. 2. For having unauthorisedly entered into the cash counter at odd hours i.e. at 21.30 hours on 8.10.98 on the plea of replacing the computer ribbon, which you have not supposed to do that job at that time, since you were on duty at 281 i.e. chart dispatch duty, which constitutes misconduct under Reg.28(xxxii) of APSRTC Employees (Conduct) Regulations, 1963. 3. For having kept the duplicate key of cash safe of the cash counter in possession unauthorisedly (which was traced in your carriage bag), which constitutes misconduct under Reg.28(xvii) and (xxxii) of APSRTC Employees (Conduct) Regulations, 1963.” The 1st respondent has filed his explanation, denying the above said charges, as such, a regular inquiry was conducted by appointing an inquiry officer. The inquiry officer, having recorded the statements of seven individuals during the inquiry proceedings, and also based on the documents relied on in the inquiry proceedings, has recorded a finding that all the three charges levelled against the petitioner, are proved. Basing on the findings recorded by the inquiry officer, the 1st respondent was removed from service. As the removal order was confirmed by the appellate and review authorities, the 1st respondent-workman has approached the Labour Court by filing an application under Section 2-A(2) of the Industrial Disputes Act, 1947. Before the Industrial Tribunal, a memo was filed on behalf of the workman stating that he was not disputing the validity of the domestic inquiry report. The Tribunal, by the impugned Award, dated 17th June 2004, mainly on the ground that Sri K. Ananda Rao, Assistant Depot Clerk, who was in charge of cash counter, was not examined in the inquiry proceedings, and also on the ground that immediate steps were not taken by Sri Ananda Rao to give a complaint to the Police with regard to the theft, has disbelieved the findings recorded by the inquiry officer and ordered for reinstatement of petitioner into service with continuity of service and back-wages. In this writ petition, it is submitted by Sri C. Appaiah Sharma, learned counsel for petitioner, that, without recording any valid reasons, the Tribunal has ordered for reinstatement of 1st respondent-workman with continuity of service and back-wages. It is submitted that as there was clinching documentary and oral evidence recorded in the inquiry proceedings, and the findings in the inquiry proceedings are based on oral and documentary evidence, the orders of removal were passed. It is submitted that inspite of the memo filed on behalf of the workman, wherein, he has not disputed the validity of the domestic inquiry, the Labour Court, without looking into the detailed inquiry report and the oral and documentary evidence on record, simply set aside the order of removal and ordered for reinstatement with back-wages. It is submitted that in view of the proven misconduct of the workman, it was not open for the Tribunal to re- appreciate the entire evidence on record in the absence of any perversity of findings noticed in the inquiry report. On the other hand, it is submitted by Sri Ch.Sudhakar Babu, learned counsel for the 1st respondent-workman that though Sri K.Ananda Rao was the main witness on the charges framed against the workman, he was not examined. It is submitted that it is always open for the Industrial Tribunal to re-appreciate the evidence to come to a correct conclusion based on the evidence on record, and to set aside the order of removal. It is submitted that as the findings recorded by the Industrial Tribunal were based on the legally acceptable evidence, it has correctly ordered for reinstatement with back-wages. During the course of hearing, the learned Standing Counsel appearing for A.P.S.R.T.C., has placed on record the inquiry report, dated 24th of March 1999, which was the basis for passing an order of removal. A perusal of the inquiry report shows that precisely, the charge against the workman was that though he was not supposed to enter into the room of Sri K.Ananda Rao, who was ADC incharge of cash counter, he has entered into the said room at about 21.30 hours on 08.10.1998 without any authority, when the said Sri Ananda Rao was not available in the room, opened the cash box by using a duplicate key, and has stolen about Rs.5,400/- and kept in his tiffin box, which was folded in a wire bag. Basing on the said charge, a preliminary inquiry was conducted. While it is true that no Police complaint was given, but when it was brought to the notice of the higher officers, immediately, a preliminary inquiry was conducted on the allegation of shortage of cash, on the report of Sri K.Ananda Rao, ADC, who was incharge of cash counter. In support of the charge, one Mr.M.Sanyasi Rao was examined on behalf of the Management, who, in clear terms, has deposed that on 08.10.1998 at about 21.00 hours, the 1st respondent entered into the cash counter, and at that time, Sri K.Ananda Rao went to toilets. He has stated that after his return, Sri Ananda Rao noticed that 54 notes of Rs.100/- denomination were missing from the cash safe. Further, he has clearly deposed, stating that the said amount of Rs.5,400/- was recovered in the presence of the Security Head Guard and the same was folded in a hand kurchief, along with a duplicate key No.300 of Godrej make, and the same was found in the tiffin box of respondent No.1. Another witness by name Sri S.G.Gasanna, who was incharge of the main gate, deposed that an amount of Rs.5,400/- was missing from the cash counter on 08.10.1998 at night time and the same was found in the meals carriage box of respondent No.1. In his deposition, he has also stated that in his presence, the meals box of respondent No.1 was traced and it was opened by the security personnel and they found cash in the tiffin box of respondent No.1. One Mr. Y.Rama Rao, Depot Clerk, was also examined, who has deposed that an amount of Rs.5,400/- was found short, and only the 1st respondent alone came to the cash counter at about 21.30 hours to change the computer ribbon. Sri B.Krishna, who was the owner of a pan shop, was also examined, who has clearly deposed that the 1st respondent Sri K.Appa Rao came to his shop and kept the bag in his shop and informed that after completion of duty, he will take it back. One Mr.J.P.Rao, SHG, Palakonda Depot, has deposed that though the duty of respondent No.1 was chart maintenance, he was told that on 8th of October 1998, he entered into the cash counter and the same was informed to them by Sri K.Ananda Rao, who was incharge of cash counter. Based on the oral and documentary evidence on record, the inquiry officer has recorded a finding to the effect that from the recorded evidence available in the case and also from the depositions recorded during the inquiry, it is clearly established that Sri K.Appa Rao- respondent No.1 herein, has taken away the bus cash of Rs.5,400/- from the cash safe by using the duplicate key available with him with a fraudulent motive, when the on- duty ADC cash counter incharge had gone out to attend the calls of nature at about 21.30 hours on 08.10.1998. In the inquiry report, while dealing with the 2nd charge, a finding is also recorded that the delinquent-employee himself has admitted that he came to the cash room at about 21.30 hours to change the computer ribbon. While discussing so, the inquiry officer has also recorded a finding in the inquiry report that the inquiry established that respondent No.1 herein has unauthorisedly entered into the cash counter at odd hours i.e. at 21.30 hours on 08.10.1998 on the plea of replacing the computer ribbon. Even with regard to the third charge, the inquiry officer has recorded a finding that it was also proved against the 1st respondent. A perusal of the Award of the Tribunal shows that the reinstatement with continuity of service and back- wages, is ordered by the Tribunal, only on the ground that Sri K.Ananda Rao, who was incharge of cash counter, was not examined in the inquiry proceedings. Further, the Tribunal also doubted the findings recorded in the inquiry report, stating that no complaint was made to the Police immediately after the incident. In this case, it is to be noted that though Sri K.Ananda Rao, ADC incharge of cash counter, was not examined, but the charges levelled against the petitioner were clinchingly proved in view of examination of several witnesses in the inquiry proceedings, as referred above. But, inspite of such oral and documentary evidence, the Tribunal, merely referring to the fact that Sri K.Ananda Rao was not examined in the inquiry proceedings, has disbelieved the findings recorded by the inquiry officer and ordered for reinstatement of the 1st respondent- workman. In this case, it is to be noticed that the 1st respondent-workman has filed a memo stating that he was not disputing the validity of the domestic inquiry report, in which case, the scope of inqiry before the Industrial Tribunal is limited. In such an event, the only thing, which could have been examined by the Tribunal is, whether the findings recorded in the inquiry proceedings are perverse with reference to the evidence on record, in the absence of which, it is not for the Industrial Tribunal to upset the findings recorded in the inquiry proceedings, only on the ground that Sri K.Ananda Rao, ADC incharge of cash counter, was not examined in the inquiry proceedings. In normal course, in a case of theft, a complaint is to be lodged to the Police, but immediately, at that point of time, as the petitioners were not sure as to who was the person responsible for the theft, the complaint was not filed before the Police, but the fact remains that the preliminary inquiry was conducted immediately after the incident, and based on the report submitted in the preliminary inquiry proceedings, disciplinary proceedings were initiated against respondent No.1. In that view of the matter, the non-filing of complaint before the Police, also cannot be the sole basis for disbelieving the findings recorded by the inquiry officer. In that view of the matter, this Court is of the view that the Industrial Tribunal, merely pointing out few aspects, without going into the elaborate documentary and oral evidence on record, has disbelieved the findings recorded in the inquiry proceedings, and ordered for reinstatement. In normal course, it is a case to set aside the finding of reinstatement, as ordered by the Tribunal, but as it is brought to the notice of this Court that pursuant to the Award of the Tribunal, dated 17th June 2004, the workman is already reinstated into service and that he is at the verge of retirement, this Court is of the view that interests of justice would be met if the 1st respondent- workman is denied back-wages for the period for which he was out of service. For the aforesaid reasons, the Award of the Industrial Tribunal, dated 17th June 2004, passed in I.D.No.75 of 2002, is set aside only to the extent of award of back-wages, while confirming the reinstatement with continuity of service. Writ petition is allowed to the extent indicated above. No order as to costs. ______________________ R. SUBHASH REDDY, J 29th June 2010 ajr