IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE NINETEENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO:18228 of 1999 Between: 1 P.Narsimlu, S/o.Sailu R/o. Kyasaram, Gajwel (M), Medak District - 502278 2 Smt P.Parvathamma, W/o. Narsimulu R/o. Kyasaram, Gajwel Mandal, Medak District Petitioner No.2 isbrought on record as LRs. of deceased Petitioner No.1as per court order dt 24-9-03in WPMP 23944/03 ..... PETITIONERS AND 1 The Labour Court-Ii Rep by its Presidint Officer, 4th Floor, Chandravihar Complex, M.J.Road Hyderanad. 2 The Depot Manager, APSRTC, Zaheerbad,Medak District .....RESPONDENTS Counsel for the Petitioners:MR.A.K.JAYAPRAKASH RAO Counsel for Respondent No.2:SMT. B.G.UMA DEVI The Court made the following : ORDER: This writ petition is filed for a writ of certiorari to quash award, dated 18.12.1998 passed in I.D.No.75 of 1994 by respondent No.1 - Labour Court II, Andhra Pradesh, Hyderabad, insofar as denying petitioner No.1 (hereinafter referred to as ‘the petitioner’) back wages and imposing on him the punishment of deferment of two annual increments for a period of two (2) years without cumulative effect. Heard Sri A.K.Jayaprakash Rao, learned counsel for the petitioners and Smt. B.G.Uma Devi, learned Standing Counsel for respondent No.2. The petitioner was a driver of respondent No.2 – Andhra Pradesh State Road Transport Corporation (for short ‘the Corporation’). On 16.01.1993, when he was on duty on the route Zaheerabad to Patancheru driving a bus bearing No.AEX 5477, he has allegedly not stopped the vehicle in spite of observing 100 passengers on the road. The first petitioner was faced with a disciplinary enquiry, wherein a charge sheet was filed with the following charges: 1. For having not stopped the vehicle AEX –5477 at the outskirts of Nandikandi Village to allow the passengers of failure vehicle No.AEZ 3673, while proceeding on the same direction which is a misconduct in terms of Reg.28(ix-a) of APSRTC Employees (Conduct) Regulations, 1963. 2. For having caused much inconvenience to the travelling public, besides loss of legitimate revenue of the corporation which is a misconduct in terms of Reg.28(xvi) of APSRTC Employees (Conduct) Regulations, 1963. 3. For having failed to stop the vehicle despite stopped by the AM(T)/Enquiries, Sangareddy and the STI/ZHB who were also travelling in the failure bus, which is misconduct in terms of Reg.28(viii) of APSRTC Employee’s (Conduct) Regulations, 1963. Having not been satisfied with the explanation offered by the petitioner, enquiry was conducted and he was removed from service. The appeal filed by him having been rejected, the petitioner raised Industrial Dispute vide I.D.No.75 of 1994 before respondent No.1. The said I.D. was disposed of by award, dated 18.12.1998 modifying the order of punishment of removal from service to that of imposition of deferment of two annual increments for a period of two (2) years without cumulative effect apart from denying the back wages. This award to the extent of punishment imposed on the petitioner and denial of back wages to him is questioned in this writ petition. During the pendency of the writ petition, the petitioner died and his wife was brought on record as his legal representative. I have carefully considered the nature of the charges as set out hereinabove and I am of the view that the modified punishment imposed by respondent No.1 is too disproportionate to the proven misconduct against the petitioner. The sum and substance of all the three charges is that the first petitioner failed to stop the vehicle to carry the passengers of a failed vehicle bearing No.AEZ 3673 on the route and thereby, he caused inconvenience to the travelling public besides loss of revenue to the Corporation. The doctrine of proportionality as propounded by the Apex Court in a plethora of judgments envisages that the punishment imposed on a delinquent shall commensurate with the gravity of the misconduct. I n Ranjit Thakur v. Union of India[1], the Supreme Court held “Sentence has to suit the offence and the offender.” This doctrine has been reiterated in several subsequent judgments. (Union of India v. G.Ganayutham[2], Om Kumar v. Union of India[3], V.Ramana v. APSRTC [4] , Ram Saran v. IG of Police [5] and Divisional Controller, KSRTC v. A.T.Mane [6]). In Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Association and another[7], the Supreme Court held that the Courts shall apply two tests, namely, “balancing test” and “necessity test” while applying the doctrine of proportionality. It is held that in the balancing test, the Court should undertake scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations and in necessity test, the Court shall ensure that infringmenet of human rights to the least restrictive alternative is caused. In the instant case, even assuming that the petitioner conducted negligently while driving the bus in not stopping the vehicle and thereby failing to accommodate the passengers of the failed vehicle, the punishment of removal or denial of back wages and deferment of two annual increments for a period of two (2) years is indeed disproportionate to the proven misconduct and it shocks the judicial conscience. The charges, at the most, prove somewhat negligence or indifference or insensitivity on the part of the petitioner and not beyond that, for which, a far lesser degree of penalty is warranted. Respondent No.1 failed to properly exercise it’s discretion vested in it under Section 11-A of the Industrial Disputes Act, 1947. Ordinarily, this matter would have been relegated to the departmental authorities for imposing appropriate punishment. But, considering the fact that the employee died and his wife came on record, I have not chosen this option. Instead, in the peculiar facts and circumstances of the case and to meet ends of justice, I set aside the award passed by respondent No.1 to the extent of imposition of the above-mentioned penalties. The respondents are directed to impose on the petitioner punishment of withholding of one increment without cumulative effect, which in the view of this Court is the suitable penalty. The punishment imposed on the petitioner in the domestic enquiry by the departmental authorities and modified by respondent No.1, is accordingly modified. The Corporation shall pay the entire retirement benefits, back wages and all other benefits to petitioner No.2 on the basis of the above-mentioned punishment substituted by this Court. The writ petition is accordingly, partly allowed. C.V.NAGARJUNA REDDY, J 19th NOVEMBER, 2008. L.R.Copies to be marked. kvni [1] (1987) 4 SCC 611 [2] (1997) 7 SCC 463 [3] (2001) 2 SCC 386 [4] (2005) 7 SCC 338 [5] (2006) 2 SCC 541 [6] (2005) 3 SCC 254 [7] (2007) 4 SCC 669