THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.16638 OF 2000 DATED _____OCTOBER, 2010 BETWEEN M.Saibaba … Petitioner And The Labour Court-III, 4th Floor, Chandravihar Bldgs, Nampally, Hyderabad, rep. by its Presiding Officer, and another. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.16638 OF 2000 O R D E R By Award dated 23.07.1999, the Labour Court-III, Hyderabad, upheld the removal of the petitioner from the service of the Andhra Pradesh State Road Transport Corporation and dismissed I.D.No.131 of 1995 filed by him. Hence, this writ petition. The petitioner entered the service of the Andhra Pradesh State Road Transport Corporation (for brevity, ‘the APSRTC’) as a Conductor on 19.02.1979. While he was conducting the Lingampally Jathra Special Service between Narayanpet and Dhanwada on 07.02.1995, a check was made at about 10.20 A.M. after Stage-IV and certain cash and ticket irregularities were allegedly detected. Under charge-sheet dated 09.02.1995 the APSRTC framed the following charges against him: “1. Failed to observe the rule ‘issue and start’ which constitute misconduct under Reg.28(xxxii) of Conduct Regulation 1963. 2. Collected fare at the rate of 3.50 ps each from 18 passengers and not issued the tickets to them who boarded the bus at stage No.1 and bound to 4/5 which constitute misconduct under Regulation 28(xi)(a) of 1963. 3. Failed to collect the fare and issue tickets to 4 individuals passengers who boarded the bus at stage No.1 and bound to stage No.4/5, which constitute misconduct under Reg.28(vi)(a) of Employees Conduct Regulations, 1963. 4 . Failed to close tray numbers of all the denominations upto stage No.4 without completing above tickets which constitutes misconduct under Reg.28(xxxii) of the Employees Conduct Regulations, 1963.” Dissatisfied with his explanation, the APSRTC instituted an enquiry into the matter. By report dated 16.05.1995, the enquiry officer held that all four charges levelled against the petitioner were proved. Thereupon, by order dated 28.06.1995 the APSRTC removed the petitioner from service. Aggrieved thereby, the petitioner invoked the jurisdiction of the Labour Court-III, Hyderabad, under Section 2-A(2) of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’) by way of I.D.No.131 of 1995. The Labour Court concurred with the findings of the enquiry officer and being of the opinion that the punishment imposed upon the petitioner was not disproportionate to the charges, it confirmed his removal from service and dismissed his I.D. giving rise to the present writ petition. Sri V.Narsimha Goud, learned counsel for the petitioner, submitted that the Labour Court erred in exercise of jurisdiction under Section 11-A of the Act of 1947. He pointed out that the petitioner had filed memo dated 26.03.1997 specifically requesting the Labour Court to reappraise the evidence and in spite of the same the Labour Court blindly accepted the findings of the enquiry officer without taking note of the petitioner’s challenge thereto on grounds of perversity and lack of application of mind. He further pointed out that the Labour Court erred in relying upon the petitioner’s past record when the same was not an integral part of the disciplinary proceedings and was produced for the first time before the Labour Court. The learned counsel placed reliance on case law to support his contentions. Though no counter was filed by the APSRTC in this writ petition, the learned Standing Counsel for the APSRTC placing reliance on the material on record contended that sufficient evidence was adduced before the enquiry officer to uphold the findings arrived at during the enquiry and submitted that the endeavour of the petitioner to seek re- appreciation of such evidence by the Labour Court was rightly rejected by it. He accordingly sought to support the Nil Award passed by the Labour Court. Jurisdiction of the Labour Court in matters of the present nature is traceable to Section 11-A of the Act of 1947 which reads as under: “11-A. Power of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of Workmen:- Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct re- instatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this Section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.” In USHA BRECO MAZDOOR SANGH V/s. MANAGEMENT OF USHA BRECO LIMITED[1] the Supreme Court held that the Labour Court while exercising Section 11-A jurisdiction should not interfere with the findings of the enquiry officer only because it is lawful to do so and should not take recourse to such a step only because another view is possible. The Supreme Court was of the opinion that unless the Labour Court came to the conclusion that the case was a ‘proper’ one, it should not re-appreciate the evidence brought on record before the enquiry officer and should be slow to interfere therewith. The observations of the Supreme Court in this regard are apposite: “It is one thing to say that the finding of an enquiry officer is perverse or betrays the well-known doctrine of proportionality but it is another thing to say that only because two views are possible, the Labour Court shall interfere therewith. In other words, it is one thing to say that on the basis of the materials on record, the Labour Court comes to a conclusion that a verdict of guilt has been arrived at by the enquiry officer where the materials suggested otherwise but it is another thing to say that such a verdict was also a possible view.” Therefore, it was necessary for the Labour Court in the present case to apply its mind as to whether the case on hand was a ‘proper’ one for re-appreciation of the evidence. I n JANARDHANA REDDY V/s. THE DEPOT MANAGER, A.P.S.R.T.C., HYDERABAD[2], while dealing with the scope of jurisdiction of the Labour Court under Section 11-A of the Act of 1947 said, a Division Bench of this Court observed: “We are of the view that if a workman voluntarily desires to waive the benefits of the procedure contained in Section 11-A of the Act as interpreted by the Supreme Court, it is no doubt open to him to do so by filing a memo in the Tribunal. If, however, there is any practice in the Tribunals suo motu suggesting to workman for filing such memos, we hold that such a practice is unhealthy and the sooner it is discontinued, the better. Even if the workman files a memo voluntarily to waive the benefits of the inquiry under Section 11-A, by way of a memo, the Tribunal has a duty to examine the scope of the memo and not go beyond it. If a workman desires the Tribunal not to go into the correctness of the findings arrived at in the domestic inquiry, the language of the memo must be clear and specific to that effect. Merely because the workman says that he does not wish to produce any evidence and the matter may be decided on the evidence on record or merely because he says that the case may be decided in accordance with Section 11-A or merely because he says – as in the present case before us – that the “matter with regard to the quantum may be decided on the basis of the documents filed by him”, it cannot be said that the workman must be deemed to have asked the Tribunal not to go into the validity or correctness of the findings of fact recorded in the domestic inquiry. It is well settled that waiver of a right must be a conscious act done with full knowledge of the consequences and must be strictly construed and a Court or Tribunal cannot deprive a person of any right, more so, the rights given under a piece of welfare and beneficial legislation, unless such waiver is specific, clear and unless the Tribunal is satisfied that there is a conscious and deliberate waiver of such a right.” Reference may be made to the memo dated 26.03.1997 filed by the petitioner wherein he stated that he was not disputing the procedural aspects of the domestic enquiry, but disputed the findings of the enquiry officer and also the disciplinary authority. He specifically prayed that the Labour Court re-appraise the material available on record. The Labour Court however misconstrued this memo to mean that the petitioner did not dispute the validity of the enquiry report itself. I n MONI SHANKAR V/s. UNION OF INDIA[3], the Supreme Court observed: “The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality. (See - State of U. P. v. Sheo Shanker Lal Srivastava : (2006) ) 3 SCC 276 and Coimbatore District Central Cooperative Bank vs. Employees Assn.(2007) 4 SCC 669 2007”. Viewed thus when the specific ground of attack raised by the petitioner was that the findings recorded by the enquiry officer were perverse and bereft of application of mind, the Labour Court ought to have examined the material on record in that perspective. Such exercise is however lacking in the Award under challenge. Out of the four charges levelled against the petitioner, Charge-2 was the most serious one as it imputed to him financial irregularities coupled with misappropriation. The case of the petitioner all through was that the TTIs were inimically disposed towards him and therefore foisted false allegations against him under Charge-2. It was his case that the TTIs only found 4 ticketless passengers, who had not even tendered ticket fare, during the check which was made at 1020 A.M. on 07.02.1995. This irregularity is relatable to Charge-3. According to him, the TTIs accosted him at about 0430 P.M. at Dhanwada and fabricated the charge pertaining to collection of ticket-fare from 18 passengers without issuance of tickets. In this regard, the petitioner pointed out before the Labour Court that the service driver who was examined during the enquiry retracted from his so-called spot statement recorded by the TTIs (Ex.M.4) and supported the version put-forth by the petitioner as to what had actually happened. However, the enquiry officer completely ignored the statement of the service driver during the enquiry and acted only upon Ex.M.4. This aspect was not dealt with by the Labour Court. Sri V.Narsimha Goud, learned counsel, relying on the ticket checking procedure prescribed by the norms of the APSRTC pointed out that the checking officials were required to record the full address of the passengers connected with the irregularity and also the witnesses, while framing charges. He drew the attention of the Court to Ex.M.5 which is said to be the spot statement obtained from the 22 ticketless passengers, out of whom 18 are alleged to have paid fare but were not issued tickets, while 4 passengers had neither paid nor were issued any tickets. The photocopy of the said statement reflects that these passengers were all travelling independently and not as a group. However, individual addresses of these passengers were not recorded and their signatures and thumb impressions appear to have been affixed haphazardly on a single statement. None of these passengers were examined during the enquiry, obviously owing to the lack of knowledge of their whereabouts. This statement, Ex.M.5, is suspect to say the very least and no reliance can be placed on it. In K.DAVID WILSON V/s. SECRETARY TO GOVERNMENT, LAW DEPARTMENT (LEGISLATIVE AFFAIRS AND JUSTICE), HYDERABAD[4], a Division Bench of this Court held to the effect that an enquiry against an employee without examining the witness whose statement is treated as substantive evidence and without giving an opportunity to the employee to cross-examine such witness would be violative of the principles of natural justice. Added to this, the testimony of the service driver before the enquiry officer whereby he retracted from his spot statement (Ex.M.4), stating that at about 1630 hours the TTIs came to Dhanwada, while he and the Conductor were in the process of taking tea, and forced him to sign the statement which was got written through another passenger. He further stated that he did not know anything about the ticketless passengers and about the irregularities said to have been found by the TTIs at the time of the check during the morning hours. He further stated that he simply obeyed the instructions of the TTIs and signed on the charge-sheet and attested the passengers’ statement and also his own statement. Pertinently, the contradictions in Ex.M.4 and his oral testimony were not even put to him during the enquiry. In ASSOCIATED CEMENT COMPANIES LIMITED V/s. THEIR WORKMEN[5], the Supreme Court observed that the rule that a witness should not be disbelieved on the ground of inconsistency between his statement and another document unless he is given a chance to explain the said document cannot be treated as a technical rule of evidence. The said rule was stated to be based on the principles of natural justice. In UNION OF INDIA V/s. GYAN CHAND CHATTAR[6], the Supreme Court held that a grave charge is required to be proved beyond any shadow of doubt and to the hilt and could not rest on mere probabilities. On facts, the Supreme Court was of the opinion that a hearsay statement was certainly not legal evidence to sustain a serious charge against an employee. In M.V.BIJLANI V/s. UNION OF INDIA[7], the Supreme Court held to the effect that while conducting an enquiry against an employee, the enquiry officer could not discard the statements made by the witnesses without assigning reasons therefor. If the enquiry officer is of the opinion that they deposed falsely, they should be examined. Only because their evidence was totally against the department, the same could not be taken to mean that the witnesses had deposed falsely. Given the obtaining factual discrepancies and the above legal position, the Labour Court ought to have applied its mind as to whether the petitioner had presented before it a ‘proper’ case for it to undertake re-appreciation of evidence so as to ascertain whether there was any perversity in the findings recorded by the enquiry officer and accepted by the disciplinary authority. However, the Award under challenge reflects that the Labour Court merely relied upon the findings of the enquiry officer without subjecting them to a detailed scrutiny with the objective aforestated. To compound its lapses in this regard, the Labour Court went on to accept and act upon Ex.M.20, the past service record of the petitioner. Admittedly, the past record of the petitioner did not figure in the disciplinary proceedings held against him. He was not even put on notice about the past record. However, it was on the basis of the said past record that the Labour Court concluded that the punishment imposed upon the petitioner was not harsh or disproportionate. Such reliance was unlawful and tainted the exercise undertaken by the Labour Court. In THE DEPOT MANAGER, APSRTC, CHARMINAR DEPOT, HYDERABAD V/s. K.JELMAN REDDY[8], a Division Bench of this Court observed: “6. It may however be noted that if a Labour Court holds under Sec.11-A that the domestic inquiry is vitiated, in that case it would be open to the management to place before the Labour Court even material relating to past conduct of the workman. But where the domestic inquiry is not held vitiated, it would not be open for the management to place material relating to past conduct of the workman on record for the first time before the Labour Court unless of course the question of past conduct was an integral part of the charge and the workman had an opportunity to meet it in the domestic inquiry. … In THE STATE OF MYSORE V/s. K.MANCHE GOWDA[9], dealing with reliance on the past record, the Supreme Court observed: “(8) Before we close, it would be necessary to make one point clear. It is suggested that the past record of a Government servant, if it is intended to be relied upon for imposing a punishment, should be made specific charge in the first stage of the enquiry itself and if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a Government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. But nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt. But what is essential is that the Government servant shall be given a reasonable opportunity to know that fact and meet the same.” In that view of the matter, in the light of the failure of the APSRTC to examine the 18 witnesses who had allegedly paid ticket fare to prove Charge-2 and the studied indifference of the enquiry officer to the testimony of the service driver contradicting his earlier statement, Ex.M.4, the perverse nature of the findings recorded in the enquiry in respect of this substantial charge is clearly demonstrated. This was therefore not a case where two views were possible restricting the scope of interference by the Labour Court. This, on the other hand, was a case which undoubtedly beseeched re-appreciation of evidence and interference by the Labour Court. The reliance placed by the Labour Court on the past record of the petitioner so as to deny him the benefit of the doctrine of proportionality further compounds the error committed by the Labour Court. The Award of the Labour Court, losing sight of these aspects and baldly upholding the punishment imposed upon the petitioner by accepting the findings recorded against him during the enquiry, is therefore unsustainable in law. That being so, Charge-2 remains unproved owing to the perversity of the finding recorded by the enquiry officer on the said charge. Charges 1 and 4, though held proved, are trivial in nature. As regards Charge-3, the petitioner himself admitted that there were four ticketless passengers who had not paid him the fare; his explanation was that the bus was overloaded and the said passengers deceived him. This charge therefore stood proved. As the substantial charge, being Charge-2, stands not proved, the dire punishment of removal from service is unduly harsh and disproportionate to the gravity of the lesser charges found proved against the petitioner. Though in the normal circumstances, this Court would remit the matter back for fresh consideration as to the appropriate punishment to be imposed on the petitioner, given the long lapse of time since the removal of the petitioner from service, this Court is inclined to exercise jurisdiction as to the suitable punishment to be imposed. Reference in this regard may be made to the observations of the Supreme Court in J.K.SYNTHETICS LIMITED V/s. K.P.AGRAWAL[10]: “… What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc.” Of the charges held proved against the petitioner, only Charge- 3 is of a grave nature as the irregularity committed by the petitioner resulted in loss to the APSRTC. The other two charges are more or less trivial in nature. That being so, this Court is of the opinion that it would suffice in the interest of justice to set aside the punishment of removal from service visited upon the petitioner and direct his reinstatement in service with continuity of service only for the purposes of pensionary/retirement benefits. He shall not be entitled to back wages or attendant benefits for the period that he remained out of service. The writ petition is accordingly allowed in part setting aside the Nil Award dated 23.07.1999 passed by the Labour Court-III, Hyderabad, in I.D.No.131 of 1995 and substituting the punishment as aforestated to be imposed upon the petitioner. Parties shall bear their own costs. -------------------------- SANJAY KUMAR,J ______OCTOBER, 2010 PGS (P.D.) THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.16638 OF 2000 DATED _____OCTOBER, 2010 [1] (2008) 5 SCC 554 [2] 1990 LLR 584 (DB) [3] 2008) 3 SCC 484 [4] 2001 (5) ALD 406 (DB) [5] 1963(2) LLJ 396 [6] (2010)1 SCC (L&S) 129 [7] (2006) 5 SCC 88 [8] 1990(1) An.W.R.754 [9] AIR 1964 SC 506 [10] (2007) 2 SCC 433