THE HON’BLE SRI JUSTICE G.CHANDRAIAH %30.09.2008 W.P.NO.6154/2004 G.B.V.GOPAL PETITIONER And THE APSRTC REP. BY ITS REGIONAL MANAGER, VISAKHAPTNAM REGIONA, VISAKHAPATNAM AND TWO OTHERS. RESPONDENTS Counsel for the petitioner: SRI S.M.SUBHAN Counsel for the respondents- SRIMADHAVA REDDY, STANDING COUNSEL FOR THE CORPORATION. < Gist Ø Head Note. Ø ?Cases Referred: 1. 1988(II) ALT 54 (SN) 2. 2007(6) ALD 122 (DB) 3. AIR 1964 SC 506 THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.6154 OF 2004 O R D E R Heard both the counsel. 2. Aggrieved by the award dated 1.12.2003 passed by the Industrial Tribunal cum Labour Court, Visakhapatnam in I.D.No.226/2001, in dismissing the I.D. and thereby conﬁrming the order of removal passed by the Depot Manager, Andhra Pradesh State Road Transport Corporation, Visakhapatnam Steel City Depot (for short ‘the Corporation’) the petitioner who was working as Conductor in the Corporation, ﬁled the present writ petition. 3. The petitioner was appointed as a Conductor in the Corporation in the year 1995 and was attached to the respondent Depot. On 5.8.1998, while he was conducting the bus, bearing no.AP 9Z 3890, the TTIs checked the bus and it was alleged that after collecting Rs.3/- from a passenger, the petitioner failed to issue ticket to him and also failed to close the Statistical Return properly. The case of the petitioner is that by conducting a mechanical enquiry, without examining the passenger in question to prove the charge against the petitioner and without providing any reasonable opportunity to defend his case, the 2nd respondent – Depot Manager, Simhachalam Depot, Visakhapatnam District, removed the petitioner from service by proceedings dated 20.12.1999. The further case of the petitioner is that he issued the ticket to the passenger after collecting the fare, but the passenger misplaced the ticket and in order to avoid ﬁne, stated that the petitioner did not issue ticket to him. The enquiry oﬃcer believing the version of the passenger, held that the petitioner misappropriated an amount of Rs.3/-. The disciplinary authority, accepting the report of the enquiry oﬃcer, imposed the punishment of removal from service. The grievance of the petitioner is that the non-examination of the passenger, whose statement was believed by the enquiry oﬃcer, vitiated the enquiry and the punishment imposed is unjust and in violation of the principles of natural justice. The further case of the petitioner is that the enquiry oﬃcer, the disciplinary authority and the reviewing authority by not considering his explanation, imposed punishment of removal from service and the same is shockingly disproportionate. It is further stated that the Tribunal by not appreciating these aspects and by not exercising the jurisdiction under Section 11-A of the Industrial Disputes Act, conﬁrmed the order of the removal and hence the same is liable to be set aside. 4. On the other hand, the Corporation ﬁled counter and stated inter alia that the petitioner while conducting the vehicle no.AP 9Z:3890 on the route No.677, collected an amount of Rs.3-50 ps. from a passenger who was traveling from old Gajuwaka to Aganampudi Colony (Ex.stages 17 to 21) and re-issued the ticket of Rs.3-50 ps denomination in 16-25 hours single trip. The petitioner had collected the amount of Rs.3-50 ps and re-issued the above said ticket though he was supposed to collect actual ticket fare of Rs.3-00. As the case is serious in nature and there is a prima facie material, the petitioner was placed under suspension with eﬀect from 12.8.1999 and after duly issuing charge sheet and after conducing the enquiry by following the procedure and aﬀording the petitioner, a reasonable opportunity, he was removed from service with eﬀect from 20.12.1999. It is stated that the charges were proved against the petitioner beyond all reasonable doubt. The petitioner did not choose to cross-examine the checking oﬃcials and he had stated that he had no material evidence or witness to be produced to defend himself. The passenger had given spot statement that the conductor had issued the ticket of Rs.3-50 denomination and on scrutiny of the statistical return of the service, it is clear that the above ticket was already issued in the earlier single trip. As the petitioner indulged in cash and ticket irregularities several times, prior to this case, he is not entitled to any lenient view and as the charges against the petitioner was proved, he was removed from service and further supporting the impugned award passed by the Tribunal, the writ petition was sought to be dismissed. 5. The learned counsel appearing for the petitioner contended that the passenger in question who gave spot statement that the petitioner issued ticket of Rs.3-50 ps., was not examined and out of the two checking oﬃcials, only one oﬃcial was examined and non-examination of the passenger, amounts to improper conducting of enquiry and also would amount to violation of principles of natural justice. The Tribunal by not considering these aspects and by not re-appreciating the evidence adduced before the domestic enquiry and without satisfying itself whether the ﬁndings recorded were proper, and by not exercising the discretionary jurisdiction under Section 11-A of the Act, conﬁrmed the order of removal imposed by the Corporation. In this regard, the learned counsel relied on the judgment of the learned single Judge of this court reported in SINGARENI COLLIERIES COMPANY LTD. vs. INDUSTRIAL TRIBUNAL (CENTRAL) HYDERABAD & OTHERS[1]. He nextly contended that for imposing the punishment of removal from service, the Corporation had taken into consideration the past conduct of the petitioner and the said aspect had not been put to notice to the petitioner by way of framing any charge and this would amount to violation of principles of natural justice and that such an approach, is not tenable. In support of this contention, he relied on the judgment of the Division Bench of this court reported in K.NATARAJAN v. STATION COMMANDER , AIR FORCE STATION, HYD.[2]. He further contended that even if the charge against the petitioner is proved, the same is only for a paltry amount of Rs.3-00 and for this minor lapse, removing the petitioner from service is shocking disproportionate and the Tribunal by not exercising the discretionary jurisdiction under Section 11-A of the Act, conﬁrmed the punishment imposed by the Corporation and the same is arbitrary and illegal. With these averments, he sought to set aside the impugned award and to order for reinstatement of the petitioner into service with all consequential benefits. 6. On the other hand, the learned Standing Counsel appearing for the Corporation submitted that the charge against the petitioner was proved in the domestic enquiry beyond all reasonable doubt and the enquiry was conducted after aﬀording suﬃcient opportunity to the petitioner and non-examination of the passenger will not vitiate the enquiry and further it is not the quantum of amount that is involved in the charge, but the trust that is reposed on the petitioner by the Corporation, is paramount and the act of petitioner resulted in loss of legitimate revenue of the Corporation and when once the faith reposed on the conductor is lost, in the light of the charge proved against him, the Corporation is empowered to impose appropriate punishment and accordingly it has imposed the punishment of removal from service and the Tribunal by considering the material on record, dismissed the I.D. by conﬁrming the order of removal from service. He contended that this court under Article 226 of the Constitution of India, cannot interfere with the ﬁndings of fact recorded in the domestic enquiry, which were conﬁrmed by the Tribunal. With these averments, he sought to dismiss the writ petition. 7. In view of the above rival contentions, the points that arises for consideration are: 1. Whether the non-examination of the passenger who gave spot statement at the time of check, would vitiate the domestic enquiry ? 2. Whether the respondent – Corporation is justiﬁed in taking into account the past conduct of the petitioner at the time of imposing the punishment, without putting the said aspect to the petitioner by way of framing any charge in that regard? 3. Whether the punishment imposed by the Corporation and as conﬁrmed by the Tribunal, is justiﬁed in the light of the facts and circumstances of the case? 8. Before proceeding further, it is to be noticed that it is indisputable that under Article 226 of the Constitution of India, this court cannot sit as an appellate authority over the departmental enquiry, but if the ﬁndings are based on no evidence or the ﬁndings are perverse, which no prudent man would arrived at, based on the given set of facts and circumstances, this court would definitely exercise the jurisdiction judicial review. Further this court also would examine whether the Tribunal is justiﬁed in not exercising the discretionary jurisdiction under Section 11-A of the Act. 9. The charges against the petitioner are as under: 1. For having reissued a ticket bearing No.153/820982 of Rs.3.50 ps. to a passenger traveling from old Gajuwaka to Aganampudi Colony (Ex. Stage No.17 to 12) in 16-25 hrs. single trip after collecting Rs.3.50 ps from the passenger which was issued at Anakapalle (stage no.16) in 15-00 hrs single trip while you were conducting vehicle no.AP 9Z 3890 on route no.677 N/o on 5.8.1999 which shows your intention to pocket the legitimate revenue of the corporation which constitutes misconduct under Reg.28(xxiii) of APSRTC Employees (Conduct) Regulation, 1963. 2. For having collected the amount of Rs.3-50 ps from the passenger and reissued the ticket of Rs.3.50 while you were supposed to collect Rs.3/- and issue ticket for the same from old Gajuwaka to Aganampudi colony (Ex.stage no.17 to 12) which shows your gross negligence of duty which constitutes misconduct under Reg.28(vi)(a) of APSRTC Employees (Conduct) Regulations, 1963. 3. For having failed to close the S.R. at Srinagar Stage (ex-stage no.16) which shows your improper maintenance of records which constitutes misconduct under Reg.28(xxv) of APSRTC Employees (Conduct) Regulations, 1963”. 10. From the above, the charge against the petitioner is that he had re-issued a old ticket to the passenger worth Rs.3-50 and collected the amount for traveling from old Gajuwaka to Aganampudi Colony, when the fare of which is only Rs.3/- and further he failed to close the S.R. and thus alleged to have committed the misconduct under Regulations 28(xxiii), (vi)(a) and (xxv) of APSRTC Employees (Conduct) Regulations, 1963. In the present writ petition, the petitioner comes with the explanation that he issued ticket to the passenger after collecting the requisite fare, but the passenger misplaced the ticket and in order to avoid ﬁne, stated that the petitioner has not issued ticket and by believing his version, and by alleging that the petitioner mis- appropriate the amount, the punishment of removal was imposed. This version of the petitioner, is an after thought for the reason that before the Enquiry Oﬃcer, one of the T.T.Is. who participated in the check by name A.Venkateswara Rao, was examined and he deposed about the detecting of the cash and ticket irregularities. The petitioner did not choose to cross-examine him and further the petitioner in his statement given before the Enquiry Oﬃcer, which is marked as Ex.M-11, stated that the mistake took place due to rush and that he has not done intentionally. These circumstances, would lead to an irresistible conclusion that he admitted the charge. Therefore, in these circumstances, non-examination of the passenger will not vitiate the enquiry. Accordingly the issue no.1 is answered in the negative. 11. The Tribunal by considering the evidence on record held that the charges leveled against the petitioner are proved and these being ﬁndings of fact, based on evidence, cannot be interfered with under the writ jurisdiction. 12. The contention of the counsel for the petitioner is that the Corporation has taken into consideration the past conduct of the petitioner without framing any charge in this regard and without aﬀording the petitioner an opportunity to defend his case. 13. From the material on record, it could be seen that the Corporation has taken the past conduct of the petitioner into consideration before imposing the punishment of removal from service. In the counter ﬁled by the respondent – Corporation to the writ petition, the irregularities committed by the petitioner and the punishments given were shown in a tabular form and contended that the petitioner was involved in cash and ticket irregularities several times prior to this case and hence he is not entitled to be given any lenient view. It is well settled that before considering any material against the delinquent and which is prejudical to him, principles of natural justice demand that such material shall be put to him by framing appropriate charge, enabling the delinquent an opportunity to put forth his case. In the present case, as per the charges, which were noted above, no charge pertaining to his previous conduct, was framed. Then, without putting the petitioner on notice about the consideration of his past conduct and being inﬂuenced by such conduct and imposing the punishment of removal from service, cannot be sustained and the same amounts to violation of the principles of natural justice, inasmuch as the petitioner has no opportunity to defend his case and could not give any explanation meeting the averments of the Corporation. The Apex Court in the decision reported in STATE OF MYSORE v. MANCHE GOWDA[3] held as under: “It is suggested that the past record of a Government servant, if it is intended to be relied upon for imposing a punishment, should be made a speciﬁc charge in the ﬁrst stage of the enquiry itself and if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a Government is a continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory in nature and the ﬁnal authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject-matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the sub-matter of charge at the ﬁrst stage of the enquiry. But nothing in law prevents the punishment authority from taking the fact into consideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt. But what is essential is that the Government Servant shall be given a reasonable opportunity to know that fact and meet the same.” 13. From the above judgment of the Apex Court it is clear that if the past record of a Government servant is intended to be relied upon in imposing the punishment, a speciﬁc charge in this regard in the ﬁrst stage of the enquiry shall be made and if it is not done, it cannot be relied upon after the enquiry is closed. It is further held that whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject-matter of the enquiry. The Apex Court eventually held that nothing prevents the punishment authority from taking the fact of past conduct into consideration, sine it essentially relates more to the domain of punishment rather that of a guilt, but the essential factor is that such a Government Servant shall be given a reasonable opportunity to know the fact and meet the same. Therefore, from the judgment of the Apex Court, it is clear that before taking the past conduct into consideration, the delinquent shall be given notice, enabling him a reasonable opportunity to know the charge and meet the same. 14. A Division Bench of this court in the decision reported in K.NATARAJAN v. STATION COMMANDER, AIR FORCE STATION, HYD. (2supra), considering the above judgment of the Apex Court (3 supra) and noting the above extracted portion, held as under: “18. The ratio of the above quoted observation is that if the past adverse record of an employee is sought to be used by the employer for imposing any particular penalty, then he must be informed about this and give an opportunity to explain his position. To put it diﬀerently, the delinquent must be foretold that his past adverse record or punishments are likely to be taken into consideration for determining the gravity of misconduct and the quantum of punishment. The most convenient method of doing so is to give an indication of the same in the memo of charges. . . .” 15. From the above judgments it is clear that for taking the past conduct of the delinquent into consideration, for imposing a particular penalty, a charge in this regard shall be framed and the delinquent shall be given an opportunity to explain the circumstances. In the present case, no charge with regard to past conduct was framed in the charge sheet and even the appellant authority which took the past conduct into consideration for imposing the punishment of removal from service, did not give an opportunity to the petitioner by way of issuing any notice, calling for his explanation in this regard. Therefore, following the judgments of the Apex Court and the Division Bench of this court, it has to be necessarily held that the punishment of removal imposed by the respondent is contrary to the principles of natural justice, since the authority was inﬂuenced by the earlier conduct of the petitioner in imposing the major punishment of removal from service. This has caused prejudice to the petitioner. 16. At this juncture it is necessary to note Section 11-A of the Industrial Disputes Act as under: 11-A Power of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen: Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisﬁed that the order of discharge or dismissal was not justiﬁed, it may, by its award, set aside the order of discharge or dismissal and direct re-instatement of the workman on such terms and conditions, if any, as it thinks ﬁt, or give such other relief to the workman including the award of lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this Section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the material on record and shall not take any fresh evidence in relation to the matter. 17. From the above provision it is clear that the Tribunal has discretionary jurisdiction and if it is satisﬁed that the order of discharge or dismissal was not justiﬁed, it may set aside such order of discharge or dismissal and may direct reinstatement of the work on such terms and conditions, if any, as it thinks ﬁt or give such other reliefs, including lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. In the present case, as noted above, the gravity of punishment, was inﬂuenced by the earlier conduct of the petitioner, which was not put to notice to the petitioner, enabling him to oﬀer his explanation. This aspect was lost sight of by the Tribunal for exercising its discretionary jurisdiction under Section 11-A of the Act, based on the facts and circumstances of the case. 18. Therefore, considering the facts and circumstances, this court is of the view that the quantum of punishment imposed on the petitioner requires to be interfered with and the issues 2 and 3 are answered accordingly. 19. In the usual course, this court would have remitted the matter back to the Tribunal for considering the appropriate punishment to be imposed in the light of the present facts and circumstances of the case. But it is to be noticed that the petitioner was appointed in the year 1995 and he was removed from service in the year 1999 and he preferred I.D. in the year 2001 and the same was disposed of in the year 2003 and thereafter he preferred the present writ petition in the year 2004 and by the time of ﬁling writ petition, he was aged 46 years and as on the date of disposal of the writ petition, he is aged about 50 years and, therefore, I am of the view that suﬃcient time has elapsed and again remitting the matter, would further delay his cause and, therefore, having regard to the facts and circumstances, in exercise of the power under judicial review under Article 226 of the Constitution of India, it would be proper to grant the appropriate relief to the petitioner. 20. As noted above, the charge against the petitioner is proved, but the decision on the gravity of the punishment was inﬂuenced by his earlier conduct, which was not put to the notice of the petitioner as required by the judgment of the Apex Court and the Division Bench judgment of this Court and hence I am of the considered view, that the punishment imposed is not proportionate to the misconduct proved and, therefore, it would be just and proper, in the facts and circumstances of the case to exercise the discretionary jurisdiction under Section 11-A of the Act. Accordingly in exercise of the jurisdiction under Section 11-A of the Act, the punishment imposed by the Corporation and as conﬁrmed by the Tribunal, is modiﬁed to that of reinstatement without back wages but with continuity of service. It is made clear that the continuity of service shall be reckoned only for the purpose of terminal benefits. 21. The writ petition is accordingly disposed of. No costs. AVS ------------------------------------ - 30—09—2008 Note: L.R. copy to be marked. B/O [1] 1988 (II) ALT 54 (SN) [2] 2007(6) ALD 122 (DB) [3] AIR 1964 SC 506