THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION No.20890 of 2001 % 21.07.2011 Between # M.A. Rasheed ……..Petitioner. $ The Presiding Officer, Industrial Tribunal-cum-Labour Court, Goadavari Khani, Karimnagar and another. .……Respondents ! COUNSEL FOR PETITIONER: Sri M.A Rasheed ^ COUNSEL FOR RESPONDENT No.1: G.P for Labour ^ COUNSEL FOR RESPONDENT No.2: Sri P. Sreedhar Reddy < Gist: > Head Note: ? CITATIONS: [1] 1990 SC 1054. 2 1991 (1) An.W.R. 610 3 1991 (3) ALT 418 THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION No.20890 of 2001 (Dated : 21-07-2011) Between: M.A. Rasheed ….…Petitioner. A n d The Presiding Officer, Industrial Tribunal-cum-Labour Court, Goadavari Khani, Karimnagar and another. ….…Respondents. THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION No.20890 of 2001 ORDER: 1. The petitioner-workman is assailing the award of the Chairman, Industrial Tribunal-cum-Labour Court, Godavarikhani in I.D.No.98 of 1999, dated 05.03.2001. 2. The case of the petitioner is that he was appointed as Conductor in the 2nd respondent-Andhra Pradesh State Road Transport Corporation on 31.1.1979. While he was conducting the bus bearing No.AP 10Z 5950 on 05.10.1998, on route Karimnagar to Sholapur, he issued tickets at stage No.5 i.e., Sircilla to all the passengers. The bus had complement of 85 passengers as against the capacity of 55 passengers. When the bus reached stage No.33, a check was exercised by the checking officials, who pointed out that the petitioner had issued Rs.100/- denomination ticket to the passenger who boarded the bus at stage No.5, but failed to enter in the statistical report and thereby not accounted for the sale of the said ticket. The petitioner was charge sheeted for the cash and ticket irregularities. Charge against the petitioner reads as hereunder:- “For having failed to account the ticket No.011/290900 of Rs.100/- denmn. in the service S.R. till the point of check i.e., stage No.33 though it was issued at Stage No.5 (Sircilla) & pocketed the same by you) which constitutes misconduct interms of Reg.28 (vi) (a) & (xxxii) of APSRTC Employees (Conduct) Reg.1963.” 3. The petitioner submitted explanation stating that he issued Rs.100/- denomination ticket from the fresh block instead of from the running block and inadvertently missed to note the number of the ticket sold to the passenger in S.R. He also pleaded in the explanation that omission to mention the ticket number in S.R would cause no loss of revenue to the corporation as the tray has been permanently allotted to him and he has to account for sale of tickets from the tray. 4. Chief Inspector came to be appointed as enquiry officer. The Enquiry Officer found the petitioner guilty of the charge. Thereupon, the 2nd respondent-disciplinary authority accepted the report and removed the petitioner from service by proceedings dated 23.12.1998. Aggrieved by the order of removal, the petitioner raised an industrial dispute I.D.No.98 of 1999 before the Industrial Tribunal- Cum-Labour Court, Godavarikhani and the Tribunal by award dated 05.03.2001 dismissed the I.D. The said award is assailed in this writ petition. 5. Heard learned counsel appearing for the petitioner and learned Standing Counsel for A.P.S.R.T.C., appearing for the 2nd respondent. 6. The contention of the learned counsel is that non-entry of the ticket of Rs.100/- denomination in the S.R by the petitioner is due to inadvertence and unintentional. A further submission has been made that the petitioner has explained the circumstances under which he issued ticket from the fresh block instead of from running block during the enquiry. The learned counsel would submit that the punishment of removal is too harsh and grossly disproportionate to the misconduct alleged against the petitioner. In support of his submissions, reliance has been placed on the judgment of this Court in T.R.C Reddy vs. The Divisional Manager, A.P.S.R.T.C., Chittoor and another (W.P.No.1442 of 1986, dated 26-6-1986). 7. Learned counsel appearing for the 2nd respondent submits that the enquiry officer considered the material brought on record in right perspective and found the petitioner guilty of the charge levelled against him and that the Labour Court, on the appraisal of the material brought on record, did not find any valid ground to interfere with the order of the removal, by award dated 5.3.2001. In which case, it is impermissible for this Court to interfere with the order of the removal in exercise of powers under Article 226 of the Constitution of India. He would further submit that an enquiry was conducted properly and validly and therefore punishment imposed is quite legal and proper. 8. I have gone through the enquiry report and the order passed by the Labour Court. The petitioner has been charge sheeted for cash and ticket irregularity. The charge framed against him reads as hereunder:- “For having failed to account the ticket No.011/290900 of Rs.100/- denmn. in the service S.R. till the point of check i.e.., stage No.33 though it was issued at Stage No.5 (Sircilla) & pocketed the same by you) which constitutes misconduct interms of Reg.28 (vi) (a) & (xxxii) of APSRTC Employees (Conduct) Reg.1963.” 9. The petitioner has not disputed of his not accounting for Rs.100/- denomination in the S.R. The explanation of the petitioner is that he inadvertently issued Rs.100/- denomination ticket from the fresh block instead of running block. It is a matter of record, the tray has been allotted to the petitioner permanently and he has to account for the tickets sold while handing over the cash in the concerned depot. There is no dispute that the petitioner is not diligent in conducting the service since he issued ticket from the fresh block instead of from the running block and failed to enter the ticket number in S.R. The question is whether the punishment of removal is disproportionate to the proved misconduct of the petitioner. 10. In Workmen of Bharat Fritz Werner (P) Ltd. vs. Bharat Fritz Werner (P) Ltd.[1] the Supreme Court dealt with a case arising out of a petition under Article 226 of the Constitution and held as follows:- ““Moreover, in view of the provisions contained in Section 11- A of the Act, which empowers the industrial tribunal to go into the question whether the order of discharge or dismissal passed against a workman is justified or not and permits the tribunal to set aside the order of discharge or dismissal as the circumstances of the case may require, it was open to the High Court to consider what would be adequate punishment for the misconduct found to have been committed by these workmen and take the view that the act of misconduct found proved against these five workmen were not such as to warrant dismissal and denial of one half of the back wages for the period of about six years was adequate punishment for the misconduct found to have been committed. We do not find any infirmity in the aforesaid view expressed by the Appellate Bench of the High Court.” In J.V. Subbaiah vs. Labour Court[2] a learned Judge of this Court (M.N.Rao, J.) held as follows:- “It is now well settled that, in exercise of its powers of judicial review under Article 226 of the Constitution of India, this Court, if facts compel, can pass appropriate orders under Section 11-A of the Industrial Disputes Act instead of remitting the matter to the Industrial Court.” The learned Judge further observed that the aspect of punishment being disproportionate to the gravity of charge has not received due consideration by the Labour Court in that case and that the passing reference made by the Labour Court that the punishment was justified did not amount to consideration of the question of proportionality of the punishment imposed. The petitioner in that case was a Conductor for 26 years and the allegation levelled against him was that he failed to account for a sum of Rs.3/- and that he collected Rs.3-80 ps. and issued ticket only for Rs.0-80 ps. The learned Judge observed that he had undergone enough suffering and misery for 15 years for which his matter was pending and directed reinstatement into service without backwages treating the petitioner before him as fresh recruit for the purpose of salary. In T.Ali Akbar vs. Labour Court[3] also the same learned Judge held as follows:- “Under Section 11-A of the Industrial Disputes Act, it is incumbent on the part of the Industrial Court to go into the question of the quantum of punishment imposed. If the punishment awarded was disproportionate to the charges held proved, the Industrial Court, would, in exercise of its discretion, alter the punishment. In the present case, the Industrial Court held the punishment of removal is justified, in the circumstances of the case. This Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, has power to modify or alter the punishment imposed by the Industrial Court.” On the facts of that case, the learned Judge interfered with the punishment of removal imposed on the petitioner and directed reinstatement of the petitioner into service afresh in the initial time scale of pay without any claim to backwages/arrears of salary and allowances holding that the said punishment was proportionate to the gravity of the charges held proved viz., the petitioner did not collect the fares and did not issue tickets to 71 passengers as there were 156 passengers some of whom were traveling on the top of the vehicle. The main question that remains to be considered is whether the punishment of removal imposed on the petitioner is excessive on the facts and circumstances of the case. A Division Bench of this Court in B. Babu vs. The Industrial Tribunal-cum-Labour Court, Warangal and another (Order in Writ Appeal No.687 of 1992, dated 29-10-1992) interfered with the award of the Labour Court, Warangal which held that the employer was justified in removing the employee from service. That Writ Appeal was preferred against the order of the learned Single Judge in Writ Petition No.16859 of 1987 dated 12-4-1990 refusing to set aside the said award and dismissing that Writ Petition. In that case also the employee was a Conductor and the employer was the APSRTC. There the charge proved was that the Conductor failed to collect fares and issue tickets to eight passengers found alighting without tickets. There also the Conductor closed the S.R as if he issued tickets to all passengers and there were none to be issued tickets. The Labour Court held that the contention of the Corporation that the Conductor wanted to collect the fare of Rs.0-65 ps. from each of the passengers at the time of alighting and appropriate the same could be accepted. The Labour Court observed that the Conductor was found guilty of malpractices earlier and that he was removed and reappointed as a fresh candidate and in spite of that he resorted to that practice within a few months again and on that basis held that he was rightly removed from service. The learned Single Judge observed that both in the domestic enquiry and also by the Labour Court the charges framed against the Conductor were found to have been established beyond doubt and that this Court could not reassess the evidence and reappraise a finding of fact under Article 226 of the Constitution of India and that the Conductor was disentitled to the relief of reinstatement. The Division Bench observed as follows:- “None of the charges refers to misappropriation of the fares collected. Therefore, the evidence regarding collection of fare is totally irrelevant in the present case. All that is established is that he is negligent in not issuing tickets to passengers. When the bus was having about 65 passengers, for such a negligence on his part, the punishment of removal from service is too severe. Consequently, Section 11-A of the Industrial disputes act directly gets attracted and we are inclined to invoke it in favour of the appellant………It is true that the past record of the appellant-original petitioner is bad. Therefore, in our view, interests of justice would be served if the second respondent-Corporation is directed to appoint the appellant as a fresh Conductor. It would not entitle the appellant for any backwages or for continuity of service. He starts as a fresher. We hope and trust that the appellant will be more careful in future and will not give any occasion for compliant by the management against him, while working as a freshly recruited Conductor and allowed the Writ Appeal to that limited extent.” I n R. Raja Reddy vs. Depot Manager, APSRTC, Karimnagar and others (Order in Writ Petition No.20028 of 1987, dated 9-12-1991) the main charge was that the conductor failed to collect the fares and issue tickets to the passengers at various stages. That charge was proved and the Conductor was removed from service. That was questioned in the Writ Petition. The learned Judge held that in so far as the punishment was concerned, the labour Court was swayed away by assuming that the Conductor wanted to misappropriate after collecting the fares from the passengers though that did not from part of the charge and observed as follows:- “Under Similar circumstances, this Court in Writ Appeal No.1444 of 1987 reduced the penalty imposed in the factual circumstances of that case. Similarly, this Court in Writ Petition No.17613 of 1987 dated 18-4-1991 also reduced the punishment under similar circumstances. In the absence of any charge that the petitioner entertained an evil idea of misappropriating the fares after collecting them from the passengers alighting from the bus, the imposition of extreme penalty is not warranted in this case.”” 11. The petitioner gave a spot explanation that he issued the ticket of Rs.100/- denomination from the fresh block instead of running block and thereby omitted to mention the number of the ticket in the S.R. In any event, the petitioner has to account for the tickets while handing over the cash in the concerned depot after completing the service. The petitioner was appointed as conductor on 31.7.1979 and he was kept under suspension on 15.10.1998 and after due enquiry he was removed from service on 23.12.1998. The petitioner raised industrial dispute before the Labour Court by filing I.D.No.98 of 1999 and the said I.D came to be dismissed on 5.3.2001. The learned Presiding Officer of the Labour Court, except referring the enquiry report, did not consider whether the punishment of removal is disproportionate or not? The learned Presiding Officer of the Labour Court thoroughly failed to exercise the discretion conferred under Section 10-A (2) of the Industrial Disputes Act, 1947. 12. In that view of the matter, I am of the view the punishment of removal is shockingly disproportionate to the charge proved against the petitioner. In the given facts and circumstances treating the period from the date of removal till 30.6.2011 i.e., date of suspension without out any pay would meet the ends of justice. 13. Accordingly, the writ petition is disposed of setting aside the order of termination and treating the period from 15.10.1998 to 30.6.2011 (date of the age of superannuation) as suspension period. He is not entitled to any monetary benefits but the period from 15.10.1998 to 30.6.2011 is to be counted for the purpose of other retiremental benefits. ____________________________________ JUSTICE B.SESHASAYANA REDDY Date:21.07.2011 L.R. Copy to be marked. Note: Furnish CC in a week. B/O mrb [1] 1990 SC 1054. [2] 1991 (1) An.W.R. 610. [3] 1991 (3) ALT 418