THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.14034 OF 2000 O R D E R Heard both the counsel. 2. Aggrieved by the award dated 16.06.1999 passed by the Industrial Tribunal – cum – Labour Court, Visakhapatnam in I.D.No.10/1996 in confirming the order of removal passed by the respondent – Depot Manager, Andhra Pradesh State Road Transport Corporation Palasa Depot, Srikakulam District against the petitioner, who was working as conductor prior to his removal, the present writ petition is filed. 3. The petitioner joined duty as Conductor in the respondent – Corporation on 15.2.1986 and while so, on 23.8.1991 when he was performing duty on the bus AP 9Z 2427, on the route Palasa to Rajahmundry (godavari Pushkaram Camp), a check was conducted at stage no.21 and in the said check, the workman was found to have committed cash and ticket irregularities. Hence he was issued with a charge memo and he gave spot explanation and based on the charge memo, the management issued the charge sheet with the following charges: 1. For having violated the rule ‘issue and start’ which constitutes misconduct under Reg.28(xxxii) of APSRTC Employees’ (Conduct) Regulations, 1963. 2. For having collected the fare from 11 passengers at boarding point and failed to issue tickets to them who boarded your bus at Tuni stage no.15 alighting at Rajahmundry, which constitutes misconduct under Reg.28(x) of APSRTC Employees’ (Conduct) Regulations, 1963. 3. For having closed the try nos. of all denominations upto stage no.21 without completing issues, which constitutes misconduct under Reg.28(xxxii) of APSRTC Employees; (Conduct) Reg., 1963. 4. For having shown RJY as stage no.22 instead of stage no.21 (as per MTD 141) which constitutes misconduct under Reg.28(xxv) of APSRTC Employees’ (Conduct) Regulations, 1963. The petitioner gave explanation on 21.9.1991 and not being satisfied with the same, an enquiry was conducted and in the enquiry three out of the four charges were held to be proved and based on the same, after issuing the final show cause notice, the petitioner was removed from service on 23.3.1992. After exhausting the departmental remedies, the petitioner raised industrial dispute and the Tribunal by impugned award, confirmed the order of removal and challenging the same, the present writ petition is filed. 4. The learned counsel mainly disputed the validity of the departmental enquiry and contended that the same is conducted in violation of the principles of natural justice. He contended that the petitioner was not given opportunity to cross-examine the management witnesses and the workman was denied the opportunity of being heard. He nextly contended that the petitioner had issued tickets to all the passengers in the bus and due to ill-health in a shock, in the spot explanation, he admitted that he did not issue tickets. Without considering the S.R., the oral assertions were considered. He also contended that to confirm the irregularities, the cash bag was not checked. He submitted that the petitioner was suffering from loose motions and ill-health during the relevant time and he performed the duty. The enquiry officer by not considering these factors held that the three charges out of four are proved. He submitted that the Tribunal has not considered the validity of the domestic enquiry and by not appreciating the version putforth by the petitioner, upheld the findings of the enquiry officer. He submitted that the Tribunal under Section 11- A of the Industrial Disputes Act, has the discretion to modify the punishment awarded by the Corporation and the Tribunal by not exercising the said jurisdiction, confirmed the order of removal. He submitted that even assuming that the charges are proved, the petitioner has substantial length of service and he is the only bread earner and for the minor lapses, depriving the livelihood of the family of the petitioner is totally disproportionate to the charges proved and hence sought to take a lenient view by exercising the jurisdiction under Section 11-A of the Act. 5. The Corporation filed counter and the learned standing counsel reiterating the averments made in the counter affidavit submitted that the petitioner has initially admitted the irregularities committed by him in the spot explanation and the enquiry officer after giving sufficient opportunity to the petitioner and in conformity with the principles of natural justice has conducted the enquiry and based on the evidence available on record, found that the charges are proved against the petitioner and the Tribunal by re-appreciating the evidence on record independently, without relying the findings of the enquiry officer, found the petitioner guilty and hence the said finding of fact cannot be interfered with in the writ petition and sought for dismissal of the same. 6. The petitioner mainly disputed the validity of the domestic enquiry on the ground that the principles of natural justice were violated. From a perusal of the impugned award, it could be seen that no issue with regard to the validity of the domestic enquiry was framed. The Apex Court in the decision reported in COOPER ENGINEERING LTD. v. P.P. MUNDHE[1] held as under: “22. We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer there will be no difficulty. But when the matter is in controversy between the parties the question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceedings to raise the issue. . . . . . 7. From the above judgment of the Apex Court it is clear that the Tribunal shall first decide the validity of the domestic enquiry as a preliminary issue, to see whether the principles of natural justice has been violated in conducting the said enquiry. In the present case, as already noted above, the petitioner has disputed the validity of the domestic enquiry on the ground of violation of the principles of natural justice. In view of the judgment of the Apex court, the Tribunal is not justified is not considering the validity of the domestic enquiry by framing an appropriate issue. Therefore, on this ground alone, without going into the other merits of the case, the matter requires to be remitted back. 8. Another learned single Judge of this court in the decision reported in P.F.KHAN E.406046 v. DEPOT MANAGER APSRTC[2] considering similar circumstances held as under: “5. In a writ petition filed under Article 226 of the Constitution of India, this Court cannot sit as an appellate authority over an award passed by the Labour Court. It is well settled that the Labour Court is the final authority, as regards appreciation of the facts in an industrial dispute, before it. Further, the power of the Labour Court in moulding the relief is almost absolute, and except where the award suffers from patent illegality or perversity, the High Court cannot interfere with it. 7. An independent and an unbiased adjudication to the matter would take place in such matters, only when they reach a Labour court. Earlier to that for all practical purposes, one of the parties to the dispute assumes the role of an adjudicator. Therefore, heavy burden rests upon the Labour court to examine the matter from all possible angles, to satisfy itself as to whether there existed proper material to sustain the punishment imposed against the workman. The evidence adduced, may be before the disciplinary authority, needs to be appreciated afresh, as though it was adduced before the Labour Court, for the first time. Any lapse in this regard would have its own dent into the perfection of the adjudication by the Labour Court. Reproduction of charges or making observations with semantic changes, hardly would justify the role of a Labour Court. Oral evidence, be it on behalf of the petitioner or the 1st respondent was not adduced before the Labour court, obviously, because such a step was taken before the disciplinary authority. Failure on the part of the Labour Court to appreciate the evidence that already formed part of the record, would certainly render the adjudication before it, incomplete.” 9. Further under Section 11-A of the Industrial Disputes Act, the Tribunal is vested with discretion, to modify the punishment imposed on a delinquent, considering the facts and circumstances of the case. From a perusal of the impugned award, it could be seen that no sound reasons were recorded by the Tribunal for not exercising the discretionary jurisdiction under Section 11-A of the Act. 10. For the foregoing reasons, the impugned award is set aside and the matter is remitted back to the Tribunal to consider the matter afresh by framing appropriate issues and pass orders in accordance with law, within a period of two months from the date of receipt of a copy of this order. 11. The writ petition is accordingly disposed of. No costs. AVS ----------------------------------------- 05—12—2008 [1] AIR 1975 S.C. 1900 [2] 2008(3) ALT 234