IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SIXTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE P.V.SANJAY KUMAR WRIT PETITION NO : 14166 of 1999 Between: B.B. Naidu S/o. Appala Naidu R/o. Jaggammavari Street, V.Madugula, Madugula Mandal, Visakhapatnam District. PETITIONER AND 1 The Divisional Manager, A.P.S.R.T.C., Visakhapatnam (rural), Visakhapatnam. 2 The Dept Manager, A.P.S.R.T.C., Narasipatnam, Narasipatnam, Visakhapatnam District. .....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 a Writ, order or direction more particularly one in the nature of Writ of Certiorari calling for the records of the respondents relating to the award passed in I.D. No. 511/95 and quash or set aside the same holding it arbitrary, illegal and capricious and direct the respondents to reinstate the petitioner into service as a Conductor with all consequential beneﬁts such as arrears of pay continuity of service, seniority etc. and to pass such other order or orders as this Hon'ble Court may deem fit. Counsel for the Petitioner: MR.K.SUBRAHMANYAM Counsel for the Respondent No.: MR.K.MADHAVA REDDY The Court made the following : ORAL ORDER: The petitioner in this case seeks to assail the award dated 11.12.1998 in I.D. No. 511 of 1995 passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam. By the said award, the Industrial Tribunal-cum-Labour Court, Visakhapatnam, upheld the order of removal from service passed by the Andhra Pradesh State Road Transport Corporation (hereinafter referred to as the Corporation, for brevity) against the petitioner herein while commanding the Management to explore the possibility of giving the petitioner a fresh appointment. 2. Facts of the case germane to this adjudication are that the petitioner was recruited as a Conductor in the Respondent Corporation on 17.12.1987 in the displaced employees quota. While so, during a check conducted on the vehicle AEZ- 7372 on 23.08.1993, in which the petitioner was operating as a Conductor, certain irregularities were detected and charge sheet dated 10.9.1993 was issued by the Respondent Corporation detailing three charges. The ﬁrst charge is with regard to the alleged violation of “issue and start” rule. The second charge is with regard to the alleged collection of Rs.10/- from a batch of four lady passengers and failure of the petitioner to issue tickets to them inspite of having refunded Rs.2/- to them duly retaining Rs.8/- towards the requisite fare. As per this charge, the said passengers boarded the bus at Relugunta and were found alighting at Narasipatnam at the time of check, without tickets. The third charge is with regard to the alleged closure of SR of all denominations against stage No.1 without completion of the ticket issue, as referred in charge No.2. All the three actions alleged in the above charges constitute misconduct under the Andhra Pradesh State Road Transport Corporation Employees (Conduct) Regulations, 1963. The petitioner is said to have submitted his explanation to the above charge sheet on the very same day, i.e. 10.9.1993. Being dissatisﬁed with the same, it appears, the Respondent Corporation initiated a domestic enquiry in the matter. Basing upon the enquiry report dated 10.2.1994 holding the above charges to be proved, the Respondent Corporation issued show cause notice dated 21.2.1994 proposing to remove the petitioner from service. Eventually, by proceedings dated 17.3.1994, the petitioner was removed from service. It is stated that the petitioner preferred an appeal to the Regional Manager (Operations) of the Respondent Corporation at Visakhapatnam (Rural). But the same was dismissed by an order dated 21.3.1995. The petitioner sought a further review of the said order before the Regional Manager, Visakhapatnam, which was also dismissed by order dated 10.6.1995. 3. Aggrieved by the same, the petitioner ﬁled I.D. No. 511 of 1995 before the Industrial Tribunal- cum-Labour Court, Visakhapatnam, challenging his removal from service. The Labour Court vide its award dated 11.12.1998 conﬁrmed the action of the Respondent Corporation in removing the petitioner from service but commanded the Respondent Corporation to explore the possibility of appointing the petitioner afresh. The said award is under challenge in the present writ petition. 4. I have heard Sri K.Subrahmanyam, learned counsel for the petitioner and Sri K.Madhava Reddy, learned counsel appearing for the Respondent Corporation. 5. Learned counsel for the petitioner contended that the domestic enquiry was an empty formality as material witnesses were not examined and documents were not properly marked. It is also argued that the statements from the lady passengers and the petitioner were obtained forcibly. He further argued that the punishment imposed is shockingly disproportionate and the Labour Court ought to have exercised jurisdiction under Sec. 11-A of the Industrial Disputes Act in this regard. 6. Learned counsel appearing for the Respondent Corporation on the other hand, contended that the enquiry was held duly following the procedure envisaged under the Regulations and in strict compliance with the principles of natural justice. He argued that the petitioner was given a full and fair opportunity to defend his case. According to him, the Enquiry Officer having applied his mind to the facts, material and evidence on record held the charges to be proved and the order removing the petitioner from service came to be passed as a necessary consequence. 7. It is relevant to note that the award under challenge states at paragraph No. 5 that the petitioner had himself ﬁled a Memo, during the course of the proceedings, giving up his contest against the validity of the domestic enquiry. That being so, it is not open to the petitioner now to seek to reopen the issue with regard to the validity of the said enquiry. Exercising jurisdiction under Article 226 of the Constitution of India, it is not appropriate for this Court to re-appreciate the evidence or sit in appeal over the decision. Therefore, the contentions of the learned counsel for the petitioner with regard to the factual aspects are liable to be rejected. 8. With regard to the issue of punishment being shockingly disproportionate, it is noticed that the Labour Court placed reliance upon the judgment of a Division bench of this Court in P.Maheswar Rao and another Vs. Presiding Oﬃcer, Labour Court, Godavarikhani, Karimnagar and others ([1]), wherein this court laid down guidelines so as to serve as a uniform pattern to be followed in similar cases. The guidelines as laid down in the said judgment are: (1) In a case where the bus fare is collected from a passenger by the bus conductor without issuing the ticket instantly the magnitude of the amount involved shall not be treated as rendering any yardstick for determining the gravity of the misconduct. Such misconduct is a misconduct per se which is serious eventually leading to the cracking of the economic backbone of the Transport Corporation; (2) No lenient view need be taken in such cases. The punishment as may be provided in the Rules and Regulations of the Transport Corporation should be strictly construed without being inﬂuenced by the principles of punishment to be commensurate with the gravity of the misconduct; (3) The bus having been crowded much exceeding its capacity can also not be treated as rendering any justiﬁcation in cases where the conductor has already collected the bus fare and has not issued the ticket; (4) Once fare is collected, the conductor is bound to issue the ticket. It is a diﬀerent situation altogether if the conductor is unable to collect the fare and unable to issue the ticket to a passenger in view of heavy crowd in the bus. In fact the nature of such misconduct is diﬀerent from the misconduct of collecting the fare and not issuing the ticket. The rule of “issue and start” will apply in such cases and the charge, if levelled, has to be viewed from that angle; (5) Closing the SR without issuing ticket to a passenger from whom the bus fare has already been collected is a deliberate act of misconduct on part of the bus conductor; leaving no scope for any presumption other than the presumption that delinquent had a dishonest intention of causing wrongful loss to the corporation and wrongful gain for himself. Such misconduct should be viewed strictly and no interference need be made by the Court of law if the quantum of punishment imposed is in accordance with the disciplinary Rules of the Corporation for that purpose. It is a clear manifestation of the dishonest intention of the delinquent and no leniency could be shown to the culprit; and (6) The defence, if taken by the delinquent that he was about to issue the ticket when the inspecting party raided the bus, could also not be treated as a remitting factor unless the margin of time when the bus fare was collected on one hand and the time when the raiding party raided the bus on the other was very narrow. 9. The Labour Court also observed that the said judgment was approved by a Full Bench of this Court in G.R. Reddy Vs. Presiding Oﬃcer, Labour Court, Godavarikhani and another ([2]). It is on the basis of these judicial pronouncements that the Labour Court held that once the petitioner admitted the fact during his spot explanation on 23.8.1993 that he had received the fare from four lady passengers and returned the change due to them but failed to issue tickets, the guidelines laid down by the Division Bench in the afore stated judgment squarely apply to the case and accordingly, his removal from service was valid and justified. 10. Learned counsel for the petitioner relied upon the subsequent judgment of a learned Single Judge of this Court in B.H.K. Rao Vs. Industrial Tribunal- cum-Labour Court, Visakhapatnam and others ([3]), wherein this court observed that the earlier judgment of the Division Bench in P. Maheshwar Rao’s case (1st supra) was considered in the later judgment of this Court in Divisional Manager, A.P.S.R.T.C. Vs. E.Raga Reddy (1999(5) ALT 450) and the same was distinguished on the ground that it did not deal with the cases falling under the provisions of Sec. 11-A of the Industrial Disputes Act and, therefore, would have no application to such cases. 11. It is no doubt true that a learned Judge of this Court in E.Raga Reddy’s case observed that very wide power is conferred upon the Labour Court under Sec. 11-A of the Industrial Disputes Act, which also included the power to consider proportionality of the punishment imposed. The learned Judge observed that the judgment of the Supreme Court in The Workmen of Firestone Tyre and Rubber Copany of India (P) Ltd., Vs. The Management (AIR 1973 S.C. 1227) was not brought to the notice of the Division Bench and accordingly, the said judgment was passed without reference to the powers of the Labour Court under Sec. 11-A of the Industrial Disputes Act. 12. Be that as it may, the issue with regard to the scope of exercise of jurisdiction by the Labour Court under Section 11-A of the Industrial Disputes Act with regard to the proportionality of the punishment imposed, need not be gone into in the present case inasmuch as the learned counsel for the Petitioner fairly conceded that the recent judgments of the Supreme Court on the aspect of the punishment being shockingly disproportionate in cases of misappropriation by conductors of the Road Transport Corporations are against him. He placed before me the judgment of the Supreme Court in Depot Manager, APSRTC V/s. B.Swamy( [4]), wherein the Supreme Court held that even one act of dishonesty amounting to breach of faith may invite serious punishment inasmuch as the conductor of a bus enjoys the faith reposed in him. In this regard it may also be noticed that a Full Bench of this Court had an occasion to consider this issue in V.Ramana Vs. APSRTC( [5]). In the said judgment, this Court while considering the speciﬁc question as to whether it would be a shockingly disproportionate punishment to remove a conductor from service when the amount embezzled or misappropriated is meagre, held that the quantum of amount misappropriated or embezzled by a delinquent oﬃcial may not be taken into consideration in deciding the adequacy or otherwise of the punishment and the punishment of removal from service for such embezzlement or misappropriation cannot be termed as shockingly disproportionate. The judgment of the Full Bench in the above case was conﬁrmed by the Supreme Court in V.Ramana Vs. APSRTC ([6]). The Supreme Court, relying upon its judgment in V.Ramana’s Vs. APSRTC, once again in Uttaranchal Transport Corporation Vs. Sanjay Kumar Nautiyal([7]) did not accept the reasoning of the High Court that the amount involved was meagre, and therefore, the punishment of dismissal from service was disproportionate. The Supreme Court extracted its observations in V.Ramana’s case stating to the eﬀect that a conductor holds a position of trust and if guilty of breach of such trust, he should be imposed punishment of removal from service. 13. In the light of the afore recent judgments of the Supreme Court, it cannot be argued that the punishment imposed upon the petitioner is shockingly disproportionate. The petitioner has failed to make out any ground warranting interference with the award of the Labour Court upholding his removal from service. 14. The learned counsel for the petitioner submits that the petitioner was not provided fresh appointment inspite of the direction by the Labour Court in this regard. The Respondent Corporation in its counter aﬃdavit stated to the eﬀect that owing to the past record of the petitioner, the Corporation is not inclined to appoint him afresh. The said issue is outside the scope of the present writ petition, which is ﬁled by the petitioner workman against the portion of the award upholding his removal from service. 15. The writ petition is, therefore, dismissed. There shall be no order as to costs. _____________________ Justice P.V. Sanjay Kumar August 26, 2008 MAS ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Divisional Manager, A.P.S.R.T.C., Visakhapatnam (Rural), Visakhapatnam. 2 The Dept Manager, A.P.S.R.T.C., Narasipatnam, Visakhapatnam District. 3. 2CCs to 4 .2CD copies [1] 1997(3) An.W.R. 805(D.B) [2] 1998(1) A.L.D. 616 (D.B.) [3] 2000(1) ALT 538 [4](2007(5) ALD 41 (SC) [5] 2001(5) ALD 425 (FB) [6] AIR 2005 S.C. 3417 [7] 2008 (2) SCJ 779