THE HON’BLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION NO.1157 OF 2002 Date: 02.08.2011 Between: Shivaiah …..Petitioner And The Industrial Tribunal-II at Hyderabad, rep. by its Presiding Officer, Hyderabad and another …..Respondents THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION NO.1157 OF 2002 ORDER: In this writ petition under Article 226 of the Constitution of India, the petitioner is seeking a writ of Certiorari for setting aside the Award dated 4-9-2001 in I.D.No.225 of 2000 on the file of the Industrial Tribunal- II, Hyderabad. 2. Petitioner herein is a former conductor of the Andhra Pradesh State Road Transport Corporation (APSRTC). At the relevant time, he was employed as conductor in the Tandur Depot of APSRTC. A disciplinary enquiry was commenced against him on the following charge. “For having issued un-concerned tickets from your tray and unpunched tickets to two passengers travelling with T.No.013/822025 and 013/822026 of Rs.4/- denomination each two (2), who boarded the bus at Tandur and bound for Yalal ex-stages 1 to 3/4, which constitutes misconduct under Reg.28(vi) (a) of APSRTC., Employees (Conduct) Reg., 1963.” 3. The circumstances which gave rise to the above charge are that on 22-4-1998 a check was made while the petitioner was conducting the APSRTC bus in between stages 3 and 4 on the route from Tandur to Yalal. It is stated that at the time of check it was found that the petitioner has issued unconcerned tickets to two of the passengers and collected Rs.2/- each from them i.e. in all Rs.4/- and the charge is that he misappropriated that amount causing loss to the corporation. 4. A domestic enquiry was held and that resulted in removal of the petitioner from service and the same was confirmed by the appellate authority concerned. Thereafter the petitioner moved the Tribunal and it also by its award dated 4-9-2001 after considering the material on record, confirmed the punishment of removal from service imposed upon the petitioner. Challenging that award, the petitioner has now come up with this writ petition. 5. The learned counsel for petitioner argued upon the merits of the matter and contended that the petitioner was not given sufficient opportunity in the domestic enquiry to put forth his case and the charge against him was baseless. This aspect has been considered by the labour Court. In para 7 of its award, the labour Court discussed the petitioner’s defence and his spot explanation and the attestation of passengers statement by him and concluded that the petitioner was guilty of the charge as held by the disciplinary authorities. One aspect which should be noted is that in the charge, it is not mentioned that the petitioner has colleted the fare and issued the unconcerned tickets. It should however be noted that the award of the labour Court would show that the evidence on record disclosed that the petitioner did collect the fare of Rs.2/- each from two passengers and then issued the unconcerned tickets and that amounts to misappropriation. This finding of fact has been reached by the labour Court after considering the evidence and the award also shows that the petitioner had knowledge about the allegation that he collected the fare and participated in the enquiry. Thus the petitioner cannot be permitted to now contend that since it is not mentioned in the charge that fare was not collected, the case cannot be treated as one of misappropriation. Nothing has been shown to conclude that the Tribunal’s finding is against evidence. Thus, the finding of the Tribunal so far as misconduct is concerned, is confirmed. 6. Then turning to the aspect of the penalty or punishment it has been argued that having regard to the charge and amount, the punishment of removal from service is highly disproportionate to the charge and the amount involved and a lesser punishment of reinstatement into service without back wages should be considered as appropriate. This argument was also advanced before the Tribunal. The Tribunal considered this aspect also, but in view of the decision of the Supreme Court given in Janatha Bazar (South Kanara Central Co-operative Wholesale Stores Limited etc. Vs. Secretary Sahakari Noukarara Sangh etc.[1], wherein it was held that the punishment of removal from service would be the proper punishment for misappropriation charge concluded that the matter does not call for any leniency. The learned counsel for petitioner relied upon a decision of this Court given in S.Pulla Reddy Vs. Depot Manager, APSRTC, Cuddapah District[2] (order in W.P.No.2182/1988) and basing on the said decision argued that a lenient view should be taken. In the judgment of this Court 2nd referred to supra, a lenient view has been taken in a case of misappropriation. It is true that the point raised by the learned counsel for petitioner with regard to punishment may appear to be debatable having regard to the amount involved. However in the aforesaid Supreme Court decision, it has been held that in a case of misappropriation, whether the amount is small or high, a strict punishment is called for and this Court is bound by the said decision of the Supreme Court. The learned counsel for the petitioner also relied upon Karnataka State Road Transport Corporation Vs. B.S.Hulikatti[3] regarding the punishment. That was a case where the conductor had issued lesser denomination tickets after collecting a higher fare and his plea was he was not aware of the correct fare. There also the Supreme Court observed that the labour Court should not have set aside the punishment of removal, but ultimately as the conductor retired from service, the reinstatement order was not set aside, but back wages were not paid. Hence, that decision cannot be an authority for imposing a lesser punishment in a case like this. The learned counsel for petitioner however pointed out one aspect in the award of the Tribunal and argued that it was under a misconception that it has no power to modify the penalty and therefore, the matter should be considered from that angle and remitted back to it. It is however not necessary to do so. 6. It may be noted that a perusal of the award of Tribunal would show that it relied upon the aforesaid Supreme Court decision regarding the punishment and in view of the same, it expressed the opinion that it had no power to alter the punishment in a case of misappropriation. Thus the language of the Tribunal does not show that it was under a misconception, but it only went by the aforesaid Supreme Court decision which is binding on all courts. 7. Accordingly for all the aforesaid reasons, I regret that I am unable to agree with the petitioner’s counsel. Hence, the writ petition is dismissed. No costs. ___________________________ JUSTICE N.RAVI SHANKAR 2nd August, 2011 Tjmr THE HON’BLE SRI JUSTICE N.RAVI SHANKAR WRIT PETITION NO.1157 OF 2002 DATE: 02.08.2011 [1] 2000 LAB.I.C.3302 [2] 1997-ALD-2-558 [3] 2001-1-LLJ