IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY EIGHTH DAY OF JANUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 24702 of 1999 Between: 1 Managing Director, A.P.S.R.T.C., Musheerabad, Hyderabad. 2 Depot Manager, A.P.S.R.T.C., Anakapalli Depot, Anakapalli. ..... PETITIONERS AND 1 Chairman, Industrial Tribunal-cum-Labour Court, Visakhapantam. 2 Sri K.V.Swamy, S/o Saheb, Sarvasiddi (P), S.Rayavaram (M), Visakhapantam 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 may be pleased to issue a Writ or Direction or order particularly one in the nature of Certiorari, calling for the records relating to ID.No.198/92, dt.11-12-98 on the file of the 1st Respondent and quash the same. Counsel for the Petitioners:K.MADHAVA REDDY(SC FOR APSRTC) Counsel for Respondent No.1: G.P. FOR LABOUR Counsel for Respondent No.2: SRI N.SUBBA RAO FOR SRI R.KAMESWAR RAO The Court made the following : THE HON’BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.24702 of 1999 ORDER: In this writ petition, the Andhra Pradesh State Road Transport Corporation through its Managing Director, Mushirabad, and the Depot Manager, Anakapalli Depot, questions the award, dated 11.12.1998, passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam, in I.D.No.198 of 1992. It appears, while the 2nd respondent herein, who was working as Conductor in the Andhra Pradesh State Road Transport Corporation, was conducting a bus bearing No.AEZ 2620, a check was exercised by the checking officials on 05.10.1990 on the route of the said bus and they noticed that the 2nd respondent has committed certain cash and ticket irregularities. Thereupon, disciplinary proceedings were initiated against the 2nd respondent by framing the following charges:- “1.For having failed to punch the tickets issued to 13 individual passengers who boarded the bus at Yalamanchili and bound for S.Rayavaram exstages 10 to 13 while you were conducting the above service on 5.10.90 which constitutes misconduct under Reg.3, 28 (vi) (a) (x) of APSRTC Employees’ (Conduct) Reg.1963. 2. For having failed to account the said tickets in the SR upto stage No.12 which constitutes misconduct under Reg.28 (xvii) of APSRTC Employees (Conduct) Reg.1963. 3. For having closed the ticket denominations except 0.50 ps. in the SR upto stage No.12 without accounting the above tickets referred to charge No.1, above which constitutes misconduct under Reg.28 (xvii) of APSRTC Employees’ (Conduct) Reg., 1963. 4. For having refused to give spot explanation and attest on the passenger statement which constitutes misconduct under Reg.28 (xvii) of APSRTC Employees’ (Conduct) Reg. 1963.” The 2nd respondent submitted his explanation to the charge memo, denying the charges, but however, having not satisfied with the same, a regular enquiry was conducted by appointing an Enquiry Officer. The Enquiry Officer, after recording necessary oral and documentary evidence, found the 2nd respondent guilty of the charges framed against him and submitted a report to that effect. Thereafter, basing on the report of the Enquiry Officer, the 2nd respondent was removed from service, by order dated 17.06.1991. Aggrieved thereby, the 2nd respondent preferred departmental appeal, but the same was dismissed by order dated 21.01.1992 and pursuant thereto, a review petition was preferred before the reviewing authority and it was also rejected by an order dated 11.06.1992. Challenging the rejection order, dated 11.06.1992, passed in the review petition, the 2nd respondent has raised an industrial dispute, being I.D.No.198 of 1992, under Section 2-A (2) of the Industrial Disputes Act, 1947 (for short ‘the I.D.Act’), before the Industrial Tribunal- cum-Labour Court, Visakhapatnam. Before the Tribunal, no oral evidence was let in on behalf of both parties, but Exs.M1 to M17 were marked on behalf of the Management. The Tribunal, at first instance, passed an award on 31.12.1994 in I.D.No.198 of 1992, recording the following findings:- “The petitioner was found that he did not account for 12 tickets issued by him till stage No.12, though the passengers boarded the bus at stage No.10. He also did not close the SR upto stage No.12. For the said misconduct, a lesser punishment can be given to the petitioner.” The Tribunal, probably, in exercise of its discretionary powers under Section 11-A of the I.D.Act, by award dated 31.12.1994, has set aside the order of removal passed by the Management and directed the Management to reinstate the 2nd respondent-workman into service, but without backwages and increments for the period the 2nd respondent was out of service. Aggrieved by the said award, dated 31.12.1994, passed by the Tribunal, the 2nd respondent filed a writ petition being W.P.No.23782 of 1995. In the said writ petition, it was the case of the workman that though he has raised a plea before the Tribunal that he was not well on the date of inspection and he has adduced evidence in support of his plea, the Tribunal did not consider the same. However, considering the said contentions of the petitioner, this Court, by order dated 03.07.1998 in W.P.No.23782 of 1995, remanded the matter to the Tribunal directing it to dispose of the matter within six months from the date of the order, considering the plea raised by the petitioner that he was not well on the date of inspection and the evidence adduced by the petitioner. Pursuant to the said order of this Court, the Tribunal passed the impugned award on 11.12.1998 in I.D.No.198 of 1992 modifying its own award dated 31.12.1994 passed at the first instance, by ordering for the payment of 50% of backwages for the period the 2nd respondent was out of service and also for releasing all increments due to the 2nd respondent treating his service as continuous. Challenging the same, the Management filed the present writ petition. Heard the learned Standing counsel for the Corporation and Sri N. Subba Rao, learned counsel appearing for the 2nd respondent. Learned Standing Counsel appearing for the petitioner Corporation contended that it is a case where the Conductor has not punched the tickets issued to 13 individuals, that he has not accounted for the said tickets upto stage 12 till the time the check was exercised and that the Conductor has closed the SR without accounting for the said tickets, which clearly show the intention on the part of the Conductor that he wanted to defraud the revenues of the Corporation. He also contended that though the misconduct alleged to have been committed by the 2nd respondent is proved in the departmental proceedings, the Tribunal has ordered for payment of 50% of backwages and release of all increments due to the workman treating his service as continuous, and therefore, the impugned award is liable to be set aside. Learned counsel, in support of his arguments, has placed reliance on J.K.Synthetics Ltd. v. K.P.Agrawal[1]. On the other hand, Sri N.Subba Rao, learned counsel appearing for the 2nd respondent, contended that in the case on hand, there was no charge to the effect that the 2nd respondent has misappropriated the revenues of the Corporation and caused loss to the Corporation. Learned counsel further contended that since the 2nd respondent was sick while he was conducting the bus on the date of inspection, he issued the tickets to 13 passengers without punching them and the 2nd respondent raised the plea of his sickness in the enquiry conducted by the disciplinary authority as well as before the Tribunal. He also contended that the plea of the 2nd respondent that he was sick on the date of inspection was proved by adducing documentary evidence. Hence, the Tribunal has rightly awarded payment of 50% of backwages by giving the benefit of continuity of service and increments. In the present case, it is not in dispute that the check was exercised by the checking officials on 05.10.1990 at stage No.12 and, at that time, the checking officials found 13 individual passengers, who boarded the bus at Yelamanchili and were about to alight at S.Rayavaram, were in possession of the tickets, which were not punched, and basing on this irregularity, which constitutes misconduct within the meaning of Regulation 3, 28 (xi) (c) (x) of APSRTC Employees (Conduct) Regulation, 1963 (for short’ the Regulations’), the 1st charge was framed. Further, as the 2nd respondent failed to account for the said 13 tickets in the SR even upto stage No.12, the place where the checking officials exercised the check, the 2nd charge was framed. In the domestic enquiry, a clear finding was recorded by the enquiry officer that the 2nd respondent, the delinquent employee, has not punched the tickets issued to 13 passengers, who boarded the bus at Yelamanchili and bound for S.Rayavaram ex-stages 10 to 13, and thereby the 2nd respondent has violated the Regulations. With reference to the 2nd charge that the 2nd respondent failed to account for the said 13 tickets in the SR even upto stage No.12, it was also proved. In spite of a clear direction by this Court in the earlier writ petition to the Tribunal to dispose of the matter considering the plea of the petitioner that he was sick on the date of inspection, the Tribunal, without recording the effect of such sickness in not punching the tickets, which were already issued, ordered for payment of 50% of backwages. Although it is contended by the learned counsel appearing for the 2nd respondent that there was no charge with regard to the misappropriation of revenues of the Corporation, at the same time it is to be noticed that the very fact of the 2nd respondent in not punching the tickets and failing to account for the said tickets in the S.R. will indicate the clear mind of the 2nd respondent to misappropriate the amounts of the Corporation. Merely because the 2nd respondent was found sick on the date of the inspection, that itself will not be the ground to defend the charges particularly framed under charge Nos.1 and 2. It is not a case that the 2nd respondent did not issue tickets at all in view of his ill-health. In the explanation filed by the 2nd respondent, it is clearly stated that he has issued tickets to the said 13 passengers, but by mistake he did not punch them before issuing them to the passengers. Inasmuch as the extent of not punching the tickets and failing to account them in the SR even upto stage No.12 were held to be proved, it cannot be the case to award any amount towards backwages. The judgment relied on by the learned counsel for the petitioners in J.K.Synthetic’s referred supra will support the case of the petitioners. In the said case, the Hon’ble Supreme Court has clearly held that grant of backwages has to be considered having regard to the facts and circumstances of each case. There cannot be any straight- jacket formula for awarding the backwages. It all depends upon the nature of charges, defence putforth by the 2nd respondent and the period for which he was out of service. Though the Tribunal has also granted the benefit of continuity of service and increments for the period of interrugnum, however, having regard to the nature of charges framed and the evidence on record, I am of the view that interest of justice will be met if the impugned award to the extent of granting 50% of backwages is set aside. For the aforesaid reasons, the impugned award, dated 11.12.1998, in I.D.No.198 of 1992 passed by the Tribunal, to the extent of granting 50% of backwages is set aside. However, it is made clear that the 2nd respondent is entitled to the benefit of continuity of service and all other benefits as awarded in the impugned award. Accordingly, the writ petition is allowed in part. No order as to costs. ___________________ R.SUBHASH REDDY,J 28.01.2009 v v [1] (2007) 2 SCC 433