HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 11797 OF 2003 . DATED 19th September, 2011 BETWEEN APSRTC, rep. by its Managing Director, Musheerbad, Hyderabad and anr …Petitioners And A.G. Reddi and anr ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 11797 of 2003 ORDER: Challenging the Award dated 13.12.2002 passed in I.D.No. 97 of 2002 by the second respondent-Labour Court-III, Hyderabad, the present Writ Petition is filed. By the said Award, the Labour Court directed the petitioner-APSRTC to reinstate the first respondent-workman in service while setting aside the removal order dated 6.7.1999 passed against him, with continuity of service, 50% back wages and all other attendant benefits. The first respondent (herein after referred to as ‘the workman’) was appointed in the petitioners-Andhra Pradesh State Road Transport Corporation (APSRTC) in the year 1991 as a driver on daily wage basis and later his services were regularized w.e.f. 1.8.1992. While so, he was charge sheeted on 21.11.1998 on the ground that he unauthorizedly stopped the material collecting vehicle (DVT vehicle) near Deccan Profile Factory at the outskirts of Kadthal village; and that he decanted 10 liters of HSD oil in a can from the tank of the said vehicle; and that he absconded from the spot on noticing the Depot Manager, Kalwakurthy Depot. The petitioner submitted his explanation to the said charges. Not being satisfied with the explanation of the workman, the petitioner-APSRTC after giving him reasonable opportunity and conducting due enquiry into the three charges levelled against him, removed him from service. The workman, without availing statutory remedies of appeal and review, directly invoked the jurisdiction of the Labour Court under Section 2-(A)2 of the Industrial Disputes Act, 1947 by raising an industrial dispute in ID.No. 97 of 2000. The Labour Court upon consideration of the evidence and material placed on record, allowed the said ID as directed supra. Hence the present Writ Petition. The learned Standing Counsel for the petitioner-APSRTC submitted that the Labour Court has not exercised its jurisdiction conferred under Section 11-A of the Industrial Disputes Act, 1947 in the right perspective. The workman without availing statutory remedies of appeal and review straight away raised the Industrial Dispute and as such the Labour Court ought not to have entertained the same. He argued that as the statements of the complainant (Depot Manager) were recorded in the preliminary enquiry under Ex.M.4 and referred to in the enquiry report Ex.M.8, which were supplied to the workman, the Labour Court ought not to have held that the non examination of the complainant is fatal to the case of the petitioner-APSRTC. He asserted that the findings recorded by the Labour Court are perverse and opposed to the material evidence on record. He prayed for setting aside of the award of the Labour Court and allow the Writ Petition. On the other hand, the learned Counsel for the workman submitted that the findings recorded by the Labour Court are purely based on the evidence on record. While explaining as to why the material collecting vehicle of the corporation was required to be stopped at the alleged spot, he submitted that the petitioner had not committed any misconduct or alleged theft. He contended that The Depot Manager, who was the complainant was not examined during the domestic enquiry and therefore there was no opportunity for the workman to cross examine him to elicit the truth and as such the non examination of crucial witness (Depot Manager) was fatal to the case of the petitioner-APSRTC. Perused the case file meticulously. As can be seen from the record, it is revealed that it was the case of the petitioner-APSRTC that when the Depot Manager was travelling in the bus belonging to Achampet Depot from Hyderabad to Kalwakurthy on 13.10.1998, he found the alleged material collecting vehicle (DVT vehicle) was stopped unauthorizedly at the Deccan Profile Factory and when the said bus was stopped on his request, he alighted from said bus and rushed to the spot and observed that the workman suddenly started the vehicle and proceeded towards Hyderabad. It is the further case of the petitioner-APSRTC that the Depot Manager had noticed a can containing 10 liters of HSD oil kept in the bushes by the side of the road. In the enquiry conducted by the petitioner- APSRTC, L.P.Reddy and K.Yadaiah cleaners were examined, who were said to have accompanied with the workman in the material collecting vehicle. The said L.P.Reddy deposed that the Depot Manager had obtained his statement forcibly as per his dictation and that he did not know anything as to theft of the alleged HSD oil. He further deposed that the statement recorded in the preliminary enquiry was not his true version. Even in the cross examination of this witness, nothing was elicited in support of the charge levelled against the workman. Further a perusal of the evidence of another witness, viz., Mr.K.Yadaiah, discloses that after filling the radiator with water, the workman moved the vehicle and nothing elicited from his evidence as to unknown person, who was alleged to have been with the workman and the aforesaid two witnesses. It was further established that no further witness, neither the complainant nor the workman was examined as to whom the HSD oil said to have been committed to theft was sold. From the established facts on record , it is clear that the Depot Manager, who was the complainant, was not examined during the domestic enquiry. Had he been examined, there could have been an opportunity to the workman to cross examine him and to elicit the veracity of the complaint. But that was not done. Though it was the case of the petitioner-APSRTC that as the Depot Manager being the Head of the Department and reporting authority, he could not give false report, but, when he was the crucial witness as he was the complainant, he was to be examined and had he been examined, the workman would have an opportunity to cross examine him. Further, in the enquiry, except the aforesaid two witnesses, no other independent witness was examined though the petitioner-APSRTC alleged that a unknown person was present at the material collecting vehicle (DVT Vehicle). Though the Depot Manager complained that he had seen the oil decanted from the diesel tank into the can, the two witnesses who were said to have accompanied the workman and examined in the enquiry on behalf of the petitioner-APSRTC, did not say anything as to alleged theft of HSD oil in support of its case. In those circumstances, the Labour Court rightly came to a conclusion that the Depot Manager being the reporting authority, complainant as well as direct witness had not been examined during the domestic enquiry and had he been examined, there could have been an opportunity for the workman to cross examine him and to elicit the truth thereon, but that was not done, as such, it was fatal to the case of the petitioner-APSRTC. Needless to observe, non examination of the complainant amounts to flagrant violation of the doctrine of audi alteram partem which caused prejudice to the case of the workman. It was further rightly observed that L.P.Reddy and K.Yadaiah, cleaners, who were said to be the direct witnesses to the alleged incident were examined during the domestic enquiry, but they did not support the case of the petitioner-APSRTC and that their evidence supported the case of the workman. The Award of the Labour Court is a well reasoned and based on the evidence on record. I do not see any reason to interfere with the same. For the foregoing discussion, the Writ Petition is liable to be dismissed and accordingly the same is dismissed. There shall be no order as to costs. ------------------------------------ -- JUSTICE ASHUTOSH MOHUNTA Dated 19th September, 2011. Msnro