THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO. 15660 OF 2000 DATED OCTOBER, 2010 BETWEEN Ch.Tirupathi Rao … Petitioner And Presiding Officer-cum-Chairman, Industrial Tribunal-cum-Labour Court, Visakhapatnam and Others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.15660 OF 2000 ORDER: The unsuccessful petitioner/workman in I.D.No.12 of 1997 assails the NIL Award dated 17.06.1999 passed therein by the Industrial Tribunal-cum-Labour Court, Visakhapatnam. He seeks a consequential direction to the Andhra Pradesh State Road Transport Corporation (APSRTC) to reinstate him in service as a Conductor with all consequential benefits. The petitioner entered the service of the APSRTC as a Conductor on 01.11.1993. While he was conducting the bus service between Vizianagaram and S.Kota on 06.05.1995 a check was made at stage No.10, Chinnapuram, and certain cash and ticket irregularities were allegedly detected. This resulted in disciplinary action being initiated against the petitioner on the following charges: 1) For having failed to issue a ticket of Rs.7/- to a lady passenger, who boarded your bus at Vizianagaram and bound for Ksayyapeta, exstages 12-4, even after collecting the requisite fare from the said lady passenger, though the number of passengers in the bus was only 21. While you are conducting the bus 9871 on the route VZM-S.Kota on 06.05.1995 which constitutes misconduct under Reg.28(ix.a) and (vi.a) & (x) of APSRTC Employees’ (Conduct) Regulations, 1963. 2) For having closed the tray numbers of all denominations upto the stage No.10 without completion of ticket issues, while you were conducting the bus 9871 on the route VZM-S.Kota on 06.05.1995, which constitutes misconduct under Reg.No.28(xxxii) of APSRTC Employees’ (Conduct) Regulations, 1963. Dissatisfied with his explanation, the APSRTC instituted a domestic enquiry in the matter. As the Enquiry Officer found against the petitioner on both the charges, he was removed from service under order dated 26.10.1995 passed by the Depot Manager, S.Kota. The petitioner’s appeal and thereafter, his revision met with failure. He thereupon invoked the jurisdiction of the Labour Court under Section 2-A(2) of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’) by way of the subject I.D. As the petitioner did not dispute the validity of the domestic enquiry, no fresh evidence was let in and the Labour Court considered the record, Exs.M.1 to M.17, adduced in evidence by the APSRTC. Thereupon, the Labour held that the misconduct alleged against the petitioner was clearly established upon the evidence recorded by the Enquiry Officer. With regard to charge 1, the inconsistent stands adopted by the petitioner at different stages spoke against him. The Labour Court took note of the fact that there were only 21 passengers in the bus at the time of the check and all the seven Rs.7/- denomination tickets which were said to have been issued by the petitioner were recovered from the passengers. That being so, his statement that he had issued a Rs.7/- denomination ticket to the ticketless lady passenger and that she had lost the same did not hold water. Significant to note, the petitioner in his explanation to the charge sheet claimed that the lady passenger had made a false statement with regard to purchase of a ticket and that she had not even paid the fare to him. These varying stands by the petitioner with regard to charge 1 inevitably led to an adverse inference being drawn against him, both by the disciplinary authority and thereafter, by the Labour Court. With regard to charge 2, the petitioner’s explanation that there was a chargeable child who was sleeping in the lap of another passenger and that he could not tally the total number of passengers properly was also disbelieved by the disciplinary authority and the Labour Court, as there were only 21 passengers on board at the relevant point of time. Being of the opinion that the petitioner’s misconduct was not a minor one, the Labour Court held that it was not a fit case where a lenient view could be taken in the matter of imposition of punishment. In consequence the NIL Award, which led to the filing of the present writ petition. Sri T.S.Venkata Ramana, learned counsel for the petitioner, strenuously contended that the amount involved being a meager sum of Rs.7/-, the punishment of removal from service was shockingly disproportionate. He placed reliance on case law to support his contention. Sri C.Appaiah Sharma, learned standing counsel for the APSRTC, on the other hand, pressed into service judgments of the Supreme Court in support of his contention that in cases involving misappropriation or loss of revenue to the employer, the amount involved is irrelevant and therefore, the doctrine of proportionality could not be invoked on such count. Sri T.S.Venkata Ramana, learned counsel, relied on the unreported Judgment dated 07.04.2010 of a learned Judge of this Court in M.BABU RAO v. THE REGIONAL MANAGER, APSRTC, VISKAHAPATNAM[1]. Perusal of the said Judgment reflects that the learned Judge was impressed with the fact that the bus in that case was overloaded at the time of the check and certain drunken passengers had created a nuisance resulting in the Conductor failing to issue tickets properly. The learned Judge also took note of the fact that the Conductor had not been removed from service earlier and therefore came to the conclusion that the punishment of removal from service was disproportionate to the misconduct proved. The learned Judge therefore set aside the NIL Award in that case and directed reinstatement of the Conductor with continuity of service for the purpose of retiral benefits but without back wages and other attendant benefits. This Judgment was confirmed in appeal by a Division Bench of this Court by Judgment dated 21.06.2010 in THE REGIONAL MANAGER, APSRTC, VISKAHAPATNAM v. M.BABU RAO[2]. The Division Bench Judgment reflects that the Bench was impressed by the fact that the allegation against the Conductor was that he had failed to issue change of Rs.2/- to the passenger at the boarding point itself and held that the same would not lead to an inference that there was a dishonest intention to retain the said amount; all the more so when the bus was overcrowded with 85 passengers. The Division Bench observed that in these peculiar facts and circumstances the learned single Judge had exercised discretion under Section 11-A of the Act of 1947 which did not warrant interference. The aforestated Judgments therefore turned upon the peculiar facts of that case and did not lay down any ratio as such. The other decision relied upon by Sri T.S.Venkata Ramana, learned counsel, is the common order dated 21.02.2002 passed by a learned Judge of this Court in S.V.S.SUBBA RAO v. THE INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, VISAKHA- PATNAM AND BATCH[3]. Except for one writ petition in the batch, the other cases dealt with the misconduct of under-issue or non-issue of tickets. Only in one case the allegation was that the Conductor had collected the ticket fare but failed to issue the tickets. The Labour Court having passed NIL Award in all the cases, the challenge before the learned Judge was as to the failure of the Labour Court to exercise jurisdiction under Section 11-A of the Act of 1947. Though the learned Judge referred to the Full Bench Judgment of this Court in V.RAMANA v. A.P.S.R.T.C.[4] which was to the effect that the quantum of the amount misappropriated by a delinquent official may not be relevant for the purpose of deciding the adequacy or otherwise of the punishment and that removal from service for such misappropriation could not be termed to be shockingly disproportionate, the learned Judge was of the opinion that while deciding the proportionality of the punishment, the Court was expected to appreciate all the facts and circumstances by taking the total material available on record. The learned Judge observed that though the amount involved as such may not be the sole ground while exercising discretion, it may also be a relevant ground to be appreciated to the limited extent of deciding the proportionality of the punishment. The learned Judge opined that the power under Section 11-A of the Act of 1947 was conferred with a view to protect workman from the possible vindictive and arbitrary orders of termination from service on trivial grounds. The learned Judge thereupon stated that he had no hesitation in holding that the punishment of removal in those cases could not be said to be proportionate and accordingly directed reinstatement of the workmen in service afresh. This order was confirmed in appeal by order dated 07.06.2005 passed by a Division Bench of this Court in APSRTC v. S.V.S.SUBBA RAO AND BATCH[5]. However, this order reflects that as a similar order passed earlier had already been implemented by the APSRTC, the Division Bench was of the opinion that there was no reason to interfere with the common order under appeal. On that ground, the writ appeals were dismissed. Ergo, these judgments do not lay down any absolute principle of general applicability. On the other hand, the judgments of the Supreme Court relied upon by Sri C.Appaiah Sharma, learned standing counsel, leave no room for doubt that in cases of misappropriation, lenity has no role to play. I n REGIONAL MANAGER, U.P.SRTC v. HOTI LAL[6], the Supreme Court was dealing with the case of a Conductor who had caused loss of Rs.16/- to the Corporation. The argument pressed into service on behalf of the Conductor was that the punishment of termination from service was disproportionate. The Supreme Court observed that it is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision making process while considering whether the punishment is proportionate or disproportionate. The observations of the Supreme Court in this regard are apposite: “10. ……… If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. ………” Relevant to note, the Full Bench Judgment of this Court in Writ Petition No.4968 of 2000 which found mention in the common order in Writ Petition No.5574 of 2000 and batch was confirmed by the Supreme Court in V.RAMANA v. A.P.SRTC[7]. The Supreme Court reiterated therein that it is the responsibility of the conductors to collect correct fare charges from the passengers and deposit the same with the Corporation. They act in fiduciary capacity and it would be a case of gross misconduct if they do not collect any fare or the correct amount of fare. The Court pointed out that a Conductor holds a post of trust and a person guilty of breach of trust should be imposed punishment of removal from service. The Supreme Court therefore upheld the Full Bench’s Judgment that quantum of the amount involved in the misappropriation was inconsequential while deciding the proportionality of the punishment. In T.N.C.S. CORPN. LTD. v. K. MEERABAI[8], the Supreme Court observed that sympathy or generosity as a factor is impermissible; that loss of confidence is the primary factor and not the amount of money misappropriated. In such cases, the Court was of the opinion that there was no room for generosity or misplaced sympathy on the part of judicial fora while interfering with the quantum of punishment. I n UTTARANCHAL TRANSPORT CORPN. v. SANJAY KUMAR NAUTIYAL[9], the High Court had interfered with the punishment on the ground that the amount involved was meager and that the punishment awarded was disproportionate. Referring to the law laid down in V.RAMANA7 and HOTI LAL6, the Supreme Court was of the opinion that the Courts below were not justified in holding that the punishment was disproportionate and accordingly restored the punishment of dismissal from service. In U.P.SRTC v. NANHE LAL KUSHWAHA[10], the Supreme Court was dealing with the case of removal from service of a Conductor on the ground of failure to issue tickets. The Supreme Court placing reliance on HOTI LAL6 observed that as the respondent was appointed as a Conductor it was not the amount which would be material for the purpose of determining the quantum of punishment. In U.P.SRTC v. SURESH CHAND SHARMA[11], the Supreme Court was dealing with the case of a Conductor who had collected the fare but failed to issue tickets, as in the present case. The Supreme Court did not accept the submission advanced on behalf of the Conductor that for embezzlement of a petty amount, punishment of dismissal was not justified. The Court pointed out that it is not the amount embezzled by a delinquent employee but the mens rea to misappropriate public money which was of relevance. Reference was made to its earlier Judgment in MUNICIPAL COMMITTEE, BAHADURGARH v. KRISHNAN BEHARI[12], wherein it was observed: “4. ……… In a case of such nature –– indeed, in cases involving corruption –– there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant.” Reference was also made to N.E.K.R.T.C. v. H. AMARESH[13] and U.P.SRTC v. VINOD KUMAR[14], wherein the Supreme Court had observed that the punishment should always be proportionate to the gravity of the misconduct but however in a case of corruption/ misappropriation, the only punishment was dismissal. Earlier, in K.S.R.T.C. v. B.S.HULLIKATTI[15], the Supreme Court was dealing with a case where a Conductor charged 50 paise per ticket less than the required fare from 35 passengers. This act was held to be either dishonest or so grossly negligent that the Conductor was not fit to be retained in service as his action/inaction resulted in financial loss to the Corporation. The Court observed that it is the responsibility of the Conductors to collect the correct fare from the passengers and deposit the same with the Corporation; that they act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare. I n DEPOT MANAGER, A.P.SRTC v. B.SWAMY[16], the Conductor was charged with the misconduct of pocketing the ticket fare while issuing lesser denomination tickets to illiterate passengers. He was therefore removed from service. In this scenario, the Supreme Court observed: “8. A conductor of a bus enjoys the faith reposed in him. He accepts the responsibility of honestly collecting fares from the passengers after issuing proper tickets and is obliged to account for the money so collected. If conductors were to be dishonest in the performance of their duties, it would cause serious pecuniary loss to the employer The High Court was therefore, not justified in observing that the management gave "excess gravity" to the offence. 9. We are constrained to observe that the High Court was not justified in characterising the order of the management as one induced by exaggeration of the gravity of the offence. The conductor performs only the duty of issuing tickets to the passengers and accounting for the fare collected from the passengers to the management. If he is dishonest in the performance of his duties, he is guilty of serious misconduct and the gravity of the misconduct cannot be minimized by the fact that he was not earlier caught indulging in such dishonest conduct. There is no guarantee that he had not acted dishonestly in the past as well which went undetected. Even one act of dishonesty amounting to breach of faith may invite serious punishment.” In the light of the aforestated established legal position, there can be no doubt that even a single instance, as in the present case, substantiating the charge of misappropriation of ticket fare by the Conductor would be sufficient to justify his termination from service. Such occurrence, albeit singular, would inevitably lead to loss of confidence in the Conductor by the APSRTC. In such circumstances, no lenient view can be taken in the matter. The NIL Award dated 17.06.1999 passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam, in I.D.No.12 of 1997 therefore does not warrant interference by this Court and is accordingly confirmed. The Writ Petition is devoid of merit and is dismissed without costs. ____________________ SANJAY KUMAR, J. _________ OCTOBER, 2010 VGSR [1] Writ Petition No.3094 of 2005 [2] Writ Appeal No.459 of 2010 [3] Writ Petition No.5574 of 2000 and batch [4] Writ Petition No.4968 of 2000 [5] Writ Appeal No.455 of 2003 and batch [6] (2003) 3 SCC 605 [7] (2005) 7 SCC 338 [8] (2006) 2 SCC 255 [9] (2008) 12 SCC 131 [10] (2009) 8 SCC 772 [11] (2010) 6 SCC 555 [12] (1996) 2 SCC 714 [13] (2006) 6 SCC 187 [14] (2008) 1 SCC 115 [15] (2001) 2 SCC 574 = 2001 (I) LLJ 725 [16] (2008) 2 SCC (L&S) 396