THE HON’BLE SRI JUSTICE C.V. RAMULU WRIT PETITION No.2296 of 2005 ORAL ORDER : Heard learned Standing Counsel for the petitioner-A.P.State Road Transport Corporation as well as the learned counsel for the 2nd respondent-workman. 2. This writ petition is filed seeking to quash the Award dated 19.7.2004 in I.D.No.59 of 2002 passed by the Labour Court- III, Hyderabad, whereunder the application filed by the 2nd respondent-workman under Section 2(A)2 of the Industrial Disputes Act, 1947 (for brevity “the Act”) praying to set aside the removal order dated 12.6.2002 passed against him and to direct the petitioner Corporation to reinstate him into service with continuity of service, full backwages and all other attendant benefits was allowed. 3. It appears, the 2nd respondent-workman, who was working as a Conductor, while conducting the bus bearing No.4364 on 9.3.2002 on the route Shadnagar to Siddapur, a check was exercised at stage No.13/12 and certain cash and ticket irregularities were found. The 2nd respondent-workman found to have collected the fare and not issued tickets to a batch 2 passengers, who boarded at Gangapur and found alighting without tickets at Lingampet. Charge sheet was issued to the 2nd respondent-workman enumerating the following charges: 1. For having violated the rule of Issue and start which constitutes misconduct under Reg.28 (vi-a) of APSRTC Employees’ (Conduct) Reg.1963. 2. For having failed to issue tickets to a batch of two passengers who have boarded the bus at Gangapur and found alighting without tickets at Lingampet ex-stages 14 to 13/12 even after collecting the requisite fare of Rs.8/- @ Rs.4/- each at the boarding place itself, which constitutes misconduct under Reg. 28(vi-a) of APSRTC Employees’ (Conduct) Reg.1963. 3. For having closed the tray numbers of all denominations in S.R. upto stage No.13, which constitutes misconduct under Reg.28(xxxii) of APSRTC Employees’ (Conduct) Reg.1963. 4. The 2nd respondent-workman submitted his explanation and since the same was not satisfactory, a domestic enquiry was ordered and the Enquiry Officer found the 2nd respondent- workman guilty of the charges. Basing on the enquiry report, after completing all the formalities, the disciplinary authority removed the 2nd respondent-workman from service by order dated 12.6.2002. Aggrieved by the said removal order, the 2nd respondent-workman raised industrial dispute under Section 2(A)2 of the Industrial Disputes Act, 1947 before the Labour Court-III, Hyderabad. 5. Before the Labour Court, it was the case of the 2nd respondent-workman that while conducting the bus on 9.3.2002 on the route Shadnagar to Siddapur, he did not commit the alleged misconduct as enumerated in the charge sheet. The said two passengers, who were found to have been travelling without tickets, were not in the bus. They some how managed to climb on to the top of the bus and when the check was exercised, they came down and made a statement that they paid money, but no ticket was issued. Whereas the 2nd respondent-workman has been maintaining the stand from the very beginning that he has not noticed the said two passengers who were travelling on the top of the bus and were found without tickets at the time of check. 6. The Labour Court, in this regard, appreciated the entire evidence on record and gave a finding, which reads as under: “POINT (1) : On 9.3.2002, a check was exercised on bus No.4364 when the petitioner was on duty as conductor on route Shadnagar to Siddapur and cash and ticket irregularities were found. Petitioner violated the rule issue and start and failed to issue tickets to two passengers after collecting the fare. Petitioner closed the S.R. in respect of all tray numbers without issuing the tickets. It is held in decision report in 1999 (5) ALT 450 (The Divisional Manager, APSRTC, Adilabad vs. E.Ranga Reddy and another) that, Industrial Tribunal-cum-Labour Court is competent to re-appreciate the evidence recorded in domestic enquiry to come to right conclusion. As can be seen from Ex.M1 – S.R., there were 49 (47+2) passengers at the time of check. Ex.M2 is the passengers statement. Passenger stated that they paid the fare amount of Rs.8/- for both the passengers to the petitioner at the place of boarding and the petitioner has not issued tickets to him. Petitioner has made endorsement in Ex.M1 – S.R. to the effect that the two passengers boarded the bus without his knowledge and were on the top of the bus and that they have not paid the fare amount to him. Petitioner further stated that, passengers out of fear for checking staff, stated that they have paid the fare amount to him. In the same lines, petitioner gave spot explanation as in Ex.M2-A. Petitioner has taken the same ground in Ex.M7, explanation to charge memo and also in Ex.M10 explanation to charge sheet. Petitioner has taken the stand consistently right from the time of check. One witness passenger was examined by name Md. Isaq as in Ex.M13. Passenger witness deposed before the enquiry officer that, himself and his friend stopped the bus and climbed to the top of the bus and that conductor was not aware of their boarding on top of the bus. He stated that they have not paid the fare amount to the petitioner and so tickets were not issued. He further deposed that being afraid of the checking officials, his friend has given statement that they paid the fare amount to the petitioner. In the light of evidence of witness passenger, statement in Ex.M2 cannot be believed to be true. Passengers might have given Ex.M2 out of fear of checking staff. As stated by witness passenger, it is more probable to believe that they were on the top of the bus at the time of check and so they have not paid the fare amount to the petitioner and that petitioner has not issued tickets to them. Evidence of TTI that the two passengers were sitting inside the bus, cannot be believed to be true in the light of evidence of witness passenger. Petitioner has given evidence in support of his theory right from the time of check till the end of enquiry. Witness passenger was identified by checking staff and there was no dispute regarding identity of witness passenger. So by re-appreciation of evidence, more credence shall be given to the evidence of witness passenger, than his earlier passenger statement as in Ex.M2. Petitioner made a mention to the facts in Ex.M1-S.R. as to what happened at that time and that he has not collected the fare from the two passengers. In the light of the earliest stand taken by the petitioner, evidence on behalf of the petitioner can be believed, than the statement obtained at the time of check. In Ex.M2-A, spot explanation also, petitioner noted his objection that passengers boarded the bus on the top of the bus. Therefore, by re-appreciation of evidence, this court has no hesitation to hold that petitioner has not collected the fare amount from the two passengers and so he has not given tickets to them. The bus was running with 49 passengers at the time of check. So it is probable to believe that the two passengers boarded on the top of the bus at the time of checking. So petitioner has not collected the fare amount and so no misconduct is established. No case of misappropriation is found out from the facts of the matter. Charge No.2 shall be taken as proved for failure to collect the fare amount in the circumstances existed at that time and petitioner had no malafide intention in not collecting the fare amount. So charge No.2 shall be taken as proved for the mistake not amounting to misconduct. Charge No.1 is proved as the petitioner failed to issue tickets and proceeded. The explanation of the petitioner for his failure to collect the fare and issue tickets is established in the circumstances of the case. So charge No.1 is proved for the mistake without any misconduct. Petitioner closed the tray numbers of all denominations. Petitioner was under the belief that he issued tickets to all passengers. The questioned passengers boarded the bus on the top of the bus and so he could not collect the fare and issue tickets. So there are bonafides on the part of the petitioner for closing the S.R. at that stage. So charge No.3 can be taken as proved for the mistake only not amounting to misconduct. Point No.1 is answered accordingly. POINT (2) : On re-appreciation of evidence, it is proved that charge No.2 is proved that the petitioner has not collected the fare amount and has not issued the tickets. No misconduct is proved against the petitioner. Charges 1 to 3 are proved for the mistake committed by the petitioner without element of misconduct. Petitioner in this case was removed from service by order dt.12.6.2002. It is held in decision reported in 1999 (5) ALT 450 that, Industrial Tribunal-cum-Labour Court is competent to impose lesser punishment for the reasons recorded in writing. In this matter, any case of misappropriation is not established. It is proved that the petitioner has not collected the fare amount and not issued the tickets. Petitioner had no intention to misappropriate the amount and to cause loss to the corporation. Charges 1 & 3 are proved accordingly in line with charge No.2. So, it is a case of proved mistake without element by misconduct. Petitioner is in service as conductor since 1982. For the mistake committed by the petitioner, punishment of removal is shockingly disproportionate and unwarranted. It would suffice to impose lesser punishment by setting aside the order of removal. It is unreasonable to remove the petitioner from service when misconduct is not proved. Therefore, this Tribunal has no hesitation to hold that termination of the petitioner dt.12.6.2002 shall be set aside and respondent shall reinstate the petitioner into service. Petitioner is entitled for continuity of service and back wages. Petitioner is not entitled for attendant benefits. After reinstatement in terms of the award, one increment shall be stopped with cumulative effect. Point No.2 is answered accordingly.” 7. From the above, it is clear that absolutely there is no misconduct on the part of the 2nd respondent-workman and the very charge is not established. It was proved that the 2nd respondent-workman neither collected the fare nor issued the tickets nor he had any intention to misappropriate the funds of the Corporation or cause any loss to the Corporation. Under those circumstances, the Labour Court directed reinstatement of the 2nd respondent-workman with continuity of service and backwages. However, one increment was directed to be stopped with cumulative effect and further it is stated that the 2nd respondent- workman is not entitled for attendant benefits and the period of suspension shall not be counted for any purpose. 8. I am of the considered opinion that the Labour Court has not committed any error, in the peculiar facts and circumstances of the case, in passing the impugned award. 9. For the foregoing, the writ petition is devoid of any merit and the same is liable to be dismissed. 10. Accordingly, the writ petition is dismissed. No order as to costs. _______________________ JUSTICE C.V. RAMULU 04.06.2010. Msr THE HON’BLE SRI JUSTICE C.V. RAMULU WRIT PETITION No.2296 of 2005 04.06.2010 (Msr)