IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY THIRD DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO : 34055 of 1998 Between: M. Shanker, Conductor, Medak District ..... PETITIONER AND The Divisional Manager, A.P.S.R.T.C., Medak District and another. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue appropriate writ or direction particularly of the 2nd respondent in removing the petitioner from the service vide order dated 7.7.1993 and the consequential order of 2nd respondent insofar as denying the petitioner benefits including the backwages as arbitrary, unjust and in violation of Articles 14, 16 and 21 of the Constitution of India and in violation of principles of natural justice and grant the relief of continuity of service along with backwages and pass such other order or orders as may be deemed fit and proper in the circumstances of the case Counsel for the Petitioner:MR.V.NARASIMHA GOUD Counsel for the Respondent No.: SMT.B.G.UMA DEVI The Court made the following : THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO Writ Petition No. 34055 of 1998 JUDGMENT : This writ petition has been instituted by a conductor of the Andhra Pradesh State Road Transport Corporation aggrieved by the action of the respondents in not extending to him the benefits of his past service, continuity of service and consequential benefits including payment of backwages, upon his reinstatement into service. It is the case of the applicant that he joined the service of the respondent corporation on 30.11.1987 on a temporary basis, as a conductor and subsequently his services have been regularized with effect from 1.9.1988. It is his case that he was conducting a bus plying between Narayankhed to Bidar and that the same was subjected to a surprise check at about 12.30 hours on 16.2.1993 at Stage No.7, Nyalkal and that the checking officials of the corporation have found certain ticket irregularities committed by the petitioner/conductor and hence filed an adverse report against him. It has resulted initially in placing the writ petitioner under suspension followed up by framing of three charges against him. After conducting domestic enquiry, the Depot Manager, Narayankhed imposed punishment of removal on him through his proceedings dated 7.7.1993. He has preferred an appeal there against to the 1st respondent – Divisional Manager. Entertaining the appeal, the Divisional Manager passed orders on 4.1.1994 reinstating him into service as a fresh conductor and also held that he is not entitled for his previous service and any kind of monetary benefits. Pursuant to the orders of the appellate authority dated 4.1.1994, the writ petitioner has been reinstated to duty. On 7.12.1998 he has instituted the present writ petition making out a grievance about denying him the benefits for the past service as bad and illegal. The respondents have contested the writ petition. It is their case that the misconduct attributable to the writ petitioner is a grave one and is affirmed by the appellate authority also. However, the appellate authority has preferred to take a lenient view in the matter of imposition of punishment and the appellate authority has ordered for reinstatement as a fresh candidate taking a compassionate view in the matter. Therefore, the respondents pleaded that no exception need be drawn to the order of the appellate authority which has specifically ordered for denying him any benefits for his past services. In the fact scenario noted supra, the only question that requires to be adjudicated is whether the writ petitioner is entitled for all the benefits that flow, as a matter of course upon his reinstatement, for his past services. Before, I proceed any further, it will be important to notice that a memo has been filed on behalf of the petitioner that the petitioner is ready to forego the backwages for the interregnum period of his removal from service to the date of his reinstatement provided that the continuity of service along with other benefits is accorded to him. The memo filed by the learned counsel for the petitioner on 2.4.2009 is taken on record. The three charges that have been laid against the petitioner can briefly be summarized as under: (1) That at the time of the check of the bus conducted by the writ petitioner on 16.2.1993, a batch of three adult passengers and one chargeable child passenger who have boarded the bus at Stage No.1, Narayankhed and they were to alight at Stage No.8.were found traveling in the bus and that the petitioner has charged a sum of Rs.21.50 ps as fare from them and issued three tickets of Rs.6/- denomination and one ticket of the denomination of Rs.3.50 ps for the child passenger. The fare collected is correct. But, however, one of the three adult passengers was found to have been issued a ticket bearing No.006/327517, which ticket was in fact issued by the petitioner for the 1st trip of the bus undertaken at 5.30 AM and hence the writ petitioner is alleged to have recycled one ticket of Rs.6/- denomination. (2) The 2nd charge is that the writ petitioner has charged the fare of Rs.2/- from a particular passenger and issued him a ticket, but the said ticket was taken back from the passenger and transferred it to another passenger and therefore the writ petitioner is guilty of unauthorisedly transferring tickets. (3) The 3rd charge is that he has not closed the tray numbers of Rs.1.50 ps denomination tickets against Stage No.7 and hence he is guilty of starting the journey without closing the tray in all respects. The disciplinary authority based upon the findings recorded at the domestic enquiry held the petitioner guilty of all the three charges. He has found the petitioner as responsible for recycling the ticket bearing No. 006/327517 of Rs.6/- denomination once again. The Depot Manager has also found that the writ petitioner having collected the fare of Rs.2/- from the passenger and having issued a ticket to him, has transferred the same ticket to another passenger. Therefore, for the above two charges which directly result in causing loss to the revenue of the corporation, the Depot Manager found the writ petitioner as lacking in integrity and hence found him not suitable to be retained in service of the corporation. It will be of importance to notice that the Rs.6/- denomination ticket bearing No. 006/327517 has in fact been noted by the writ petitioner to have been issued, during the 1st trip of the bus which commenced at 5.30 AM. It was clearly noted by him in his trip sheet record for the 5.30 AM trip. Admittedly, the bus was checked at about 12.30 in the afternoon. Out of a batch of four passengers, three of them were issued Rs.6/- denomination tickets while the 4th passenger being a chargeable child passenger, he was issued ticket of Rs.3.50/- denomination. With regard to the tickets issued to two of the three adult passengers there is no dispute. Therefore, the onus is on the writ petitioner to explain as to how the Rs.6/- ticket bearing No. 006/327517 has been found with the 3rd of the passengers. Therefore, the writ petitioner has left enough room to suspect his conduct and integrity in the matter. While, at the same time his explanation with regard to the next charge was fairly plausible. At the time of check, there were in all 75 adult passengers and one child passenger in the bus. One of the passengers is found traveling ticketless. It is that passenger who gave the explanation that he paid the fare of Rs.2/- and that the conductor has given him a ticket bearing No. 600/384626 and that the same ticket was retrieved by the petitioner later on and was transferred in favour of another passenger. This explanation offered by the passenger who was found ticketless is difficult to be accepted for two reasons. One, if he had paid Rs.2/- being the fare for the trip, he would not have in normal circumstances allowed the conductor to retrieve the ticket during the course of the journey itself. One can understand a ticket being retrieved from an alighting passenger, but not from a passenger who is still continuing his journey. The 2nd reason is, that it is not in the normal conduct of human behaviour to note down the ticket number of a bus ticket issued to him by conductor, for him to recite the number at any later point of time. Unfortunately, the checking staff of the bus have not verified the cash register carried by the conductor, for them to know as to whether this particular passenger has paid his fare of Rs.2/- or not. Therefore, the findings recorded by the Enquiry Officer as well as the Disciplinary Authority that the writ petitioner is guilty of this charge does not appear to be fair or reasonable to be accepted. Insofar as the 3rd charge is concerned, the writ petitioner was found to have closed the tray with regard to the rest of the denominations of the tickets. Entries were made in the tray relating to the denomination of Rs.1.50 ps. But, the same was not closed. Therefore, it is more a case of carelessness in performing duties rather than an act of misconduct. Even otherwise, it would amount to a technical violation rather than a misconduct. These are the factors that obviously weighed with the appellate authority. Though the appellate authority was not willing to condone the conduct of the writ petitioner to have recycled one ticket bearing No. 006/327517, but at the same time, he has taken into account that there is circumstantial evidence in favour of the writ petitioner with regard to the charges 2 and 3 and therefore he recorded his satisfaction to take a lenient view in the matter. The failure to note the contents of the conductor’s cash bag, by the Ticket Inspecting staff has also not helped, the appellate authority to firm up his conclusions against the petitioner. He has passed an order reinstating the writ petitioner into service as a fresh conductor and also decreed that he is not entitled for his previous service and any kind of monetary benefits. Learned counsel for the petitioner has placed reliance upon the judgments rendered by the Division Bench of this court in K.G.Prakash Chary v. High Court of A.P.[1] and the judgments in Dev Singh v. Punjab Tourism Development Corporation[2], Cantonment Executive Officer v. Vijay D.Wani[3] whereas learned counsel for the respondent has placed reliance upon the judgments rendered by the two Division Benches of this court in K.Dayanand v. Depot Manager, APSRTC[4] and P.Habeeb Saheb v. APSRTC rep. By its Managing Director[5] and the judgment rendered by the Supreme Court in J.K.Synthetics v. K.P.Agarwal[6] Learned counsel for the petitioner has also drawn my attention to the judgment rendered by a learned single Judge of this court in Divisional Manager, APSRTC v. Presiding Officer, IT-cum-LC, Warangal[7], wherein the judgment of the Division Bench rendered in Dayanad’s case has been considered and in view of the judgments of the Supreme Court rendered in Mahendra L.Jain v. Indoor Development Authority[8] a n d National Engineering Industries Limited v. State of Rajasthan[9], explained away the ratio behind the judgment rendered by the Division Bench in Dayanand’s case (supra). The writ petitioner also placed reliance on the judgment rendered by the Supreme Court in Colour-cum Limited v. A.L.Alaspurkar[10] and a learned single judge’s judgment rendered in K.C.Narayana v. Managing Director, APSRTC and others[11]. In view of the Memo filed into the court on 2.4.2009, it is clear that the writ petitioner is not serious about pressing the relief for payment of backwages between 7.7.1993 to 4.1.1994, the period he was out of employment due to the order of the disciplinary authority removing him from service. Therefore, the area which requires to be considered now is whether continuity of service and other monetary benefits which flow therefrom should be ordered at all or not. This very question has fallen for consideration before the Supreme Court in J.K.Synthetics Limited (surpa 6). The Supreme Court after reviewing the entire case law on the subject in paragraph 15 of the judgment have pointed out that in the matter of awarding backwages, it is no longer considered to be an automatic or natural consequences of reinstatement. The court is required to apply its mind and order for payment of backwages taking into consideration and account the relevant factors, one of them being the fact pleaded and proved by the employee that he has not been gainfully employed during the interregnum. In my considered opinion, the writ petitioner has rightly given up his claim for payment of backwages by filing the Memo referred to supra. Dealing with the concept of continuity of service, the issue has been concluded in paragraph 17 in the following words: 17. There is also a misconception that whenever reinstatement is directed, 'continuity of service' and 'consequential benefits' should follow, as a matter of course. The disastrous effect of granting several promotions as a 'consequential benefit' to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether 'continuity of service' and/or 'consequential benefits' should also be directed. We may in this behalf refer to the decisions of this Court in A.P.S.R.T.C. v. S. Narasa Goud (2003) 2 SCC 212, A.P.S.R.T.C. v. Abdul Kareem (2005) 6 SCC 36 and R.S.R.T.C. v. Shyam Bihari Lal Gupta(2005) 7 SCC 406. Similarly, as to how to regulate the exercise of discretion in the matter of awarding continuity of service, in paragraph 19, the issue has been concluded as under: 19. But the cases referred to above, where back-wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for Page non- compliance with statutory requirements or related to cases where the court found that the termination was motivated or amounted to victimization. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11A of the Industrial Disputes Act (or any other similar provision) is exercised by any Court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). 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. In view of these principles enunciated by the Supreme Court in J.K.Synthetics (supra 6), by applying the ratio to the present case on hand, what emerges is this: The reinstatement ordered by the appellate authority on 4.1.1994 insofar as the writ petitioner is concerned, is a sequel to his finding that the writ petitioner is guilty of recycling ticket bearing No. 006/327517 of Rs.6/- denomination, which ticket was in fact issued by him during the 1st trip undertaken at 5.30 AM itself. But, however, the infirmity noticed by the appellate authority with regard to the disciplinary authorities order could be characterized as two fold. (1) The disciplinary authority has unreasonably held the writ petitioner guilty of charges 2 and 3 also whereas the benefit of doubt should have enured in favour of the writ petitioner. Secondly, the writ petitioner has alleged that during the course of enquiry he has not been supplied with documents relied upon by the management, which included the statements recorded from the two passengers by ticket checking officials. The writ petitioner has also alleged that he has not been furnished with a copy of the Enquiry Officer’s Report along with the showcause notice issued by the Depot Manager. Obviously, the appellate authority is conscious of these above two infirmities. Instead of remitting the matter back for fresh enquiry, he felt that it would be appropriate to reinstate the petitioner back to duty as a fresh candidate. But, however, the petitioner already completed more than six years of service prior to his removal and therefore the appellate authority ought to have applied its mind as to whether the appellant should also be denied the benefit of terminal benefits for this six years period of service rendered by him. Normally, the obligation to pay gratuity would spring up if an employee puts in five years of service in accordance with Section 4 of Payment of Gratuity Act, 1972. Similarly, when provisions of Section 6 and 69 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 are read together, Provident Fund also requires to be paid. Therefore, the appellate authority should have specifically applied its mind whether the past service of six years rendered by the writ petitioner should be denied for getting the terminal benefits. These legitimate benefits which would accrue to him at the end of his tenure of employment which is far far away from the time the appellate authority passed his orders, has not been considered at all. In normal circumstances, the matter would have been remanded for fresh consideration of these aspects by the appellate authority. However, long years have passed from 1994 when the appellate authority has passed these orders. I, therefore consider it appropriate to shorten the litigation by modifying the orders passed on 4.1.1994 by the 1st respondent herein by holding that the past service rendered by the writ petitioner prior to his removal will enure for the purpose of pensionary/terminal benefits and that it will not enure for any other benefits like increments, promotion etc. Subject to this modification of the appellate order passed on 4.1.1994, the writ petition stands allowed. No costs. -------------- knk 23.04.2009 ..... 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