IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE EIGHTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE R.SUBHASH REDDY WRIT PETITION Nos.20736 of 1999 and 17764 of 2000 WRIT PETITION NO : 20736 of 1999 Between: G.Muli Naidu S/o Nooki Naidu R/o Rama Rayudu Palem, Somalinga Palem,(Post), Yela Manchili Mandal, Visakhapatnam District ..... PETITIONER AND 1 The Chairman Cum Presiding Officer, Industrial Tribunal Cum Labour Court Visakhapatnam 2 The A.P.S.R.T.C Rep.by its Regional Manger, Srikakulam Srikakulam District 3 The Depot Manger, Rep.by its A.P.S.R.T.C, Srikakulam-II Depot, Srikakulam District .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a writ order or direction more particularly one in the nature of Writ of Mandamus declaring the proceedings No.H6/785(9)/99- RM.SKLM. dt 11.3.99 issued by the 2nd respondent as illegal, arbitrary, unjustiﬁed, unsustainable and contrary to the award in I.D.No.376/95 dt 16.11.98 passed by the 1st respondent and consequently direct the 2nd respondent to appoint the petitioner as fresh conductor in pursuant to the award in I.D.No.376/95 dt 16.11.98 Counsel for the Petitioner: MR.A.RAMA RAO Counsel for the Respondents: MR.C.APPAIAH SARMA AND WRIT PETITION NO : 17764 of 2000 Between: G. Muli Naidu, S/o. Nooki Naidu, R/o. Rama Rayudu, Palem, Somalinga Palem (PO), Yalamanchali Mandal, Visakhapatnam District. ..... PETITIONER AND 1 The Chairman cum Presiding Officer, Industrial Tribunal cum Labour Court, Visakhapatnam. 2 The A.P.S.R.T.C., Rep. by its Regional Manager, Srikakulam. 3 The Depot Manager, Rep. by A.P.S.R.T.C., Srikakulam-II Depot, Srikakulam District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue an appropriate Writ order or direction mostly one in the nature of "WRIT OF CERTIORARI" calling for the records in and relating to the award dt. 16-11-98 in I.D.No. 376/95 of the 1st Respondent which is published through G.O.Rt.No. 206 Labour Employment Training Factories (LAB-I) Department dt. 6-2-99 by the State Government and the consequential removal order of the 3rd Respondent to set-aside the same holding that the Petitioner the entitled to re- instatement with full back wages and pay all a consequential beneﬁts to the Petitioner and to pass such other order or orders as this Hon’ ble Court deems fit and proper. Counsel for the Petitioner: MR.A.RAMA RAO Counsel for the Respondents: MR.C.APPAIAH SARMA The Court made the following : THE HON’BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION Nos.17764 of 2000 and 20736 of 1999 COMMON ORDER: In both these writ petitions, the parties are common and the issues that arise for consideration are also inter-related, hence they are disposed of by this common order. In Writ Petition No.17764 of 2000, the petitioner challenged the order, dated 16.11.1998, passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam, (for short ‘the Industrial Tribunal’) in I.D.No.376 of 1995, which was published in the gazettee, vide G.O.Rt.No.206, Labour Employment Training Factories (LAB-I), Department, dated 06.02.1999. In Writ Petition No.20736 of 1999, the petitioner seeks to declare the proceedings No.HC/785(9)/99-RM:SKLM, dated 11.03.1999, issued by the second respondent, pursuant to the observations made by the Industrial Tribunal in I.D.No.376 of 1995, as illegal and arbitrary. The petitioner was a Conductor in Andhra Pradesh Road Transport Corporation. On 16.07.1993, the respondent-management found that there was short remittance by the petitioner to a tune of Rs.283/- . On further veriﬁcation, they have also found that there were such short remittances by the petitioner on 07.07.1993, 08.07.1993, 09.07.1993 and 11.07.1993. On the said allegations of short remittances, disciplinary proceedings were initiated against the petitioner by issuing a charge sheet with the charges, which reads as under: - 1) for having shown in the Service S.R.No.7137231 an amount of Rs.1,749.50 remitted into depot out of this amount you have remitted an amount of Rs.1,741.50, thus short by Rs.8/- as against the actual amount of bus each of Rs.2,024.50 to be remitted into depot i.e., short by Rs.275/-+Rs.8/- by showing that the ticket block No.051/905200 of Rs.2.75 denomination containing tickets was returned back to the depot vide way bill No.114493082 of the above service even though the said ticket block was sold out by you and accounted its sale in the S.R.No.7137231 of the above service in the 1st, 2nd and 3rd single trips of the service. Thus you have pocketed an amount of Rs.275/- belonging to the Corporation and short remitted an amount of Rs.8/-. This constitutes serious misconduct in terms of Reg.28(x), (xxv) and (xxxii) of APSRTC Employees (Conduct) Regulations, 1963. 2) On 07.07.1993 after performing Pinnintipeta special service you have shown the closing number of Rs.4.25 denomination ticket number as 040/402698 in S.R.No.7143213, whereas the closing number of some denomination ticket was shown as 040/402638 in way bill No.0545/11493078 and thus short remitted an amount of Rs.42.50 being the cost of 10 tickets shown less in the way bill and thus pocketed this amount. This constituted a serious misconduct in terms of Reg.28 (x), (xxv) and (xxxii) of APSRTC Employees (Conduct) Regulations, 1963. 3) On 08.07.1993, after performing 5.30 hours Bathili Service, you have shown the closing number of Rs.3.50 denomination ticket number as 074/006998 in Sr.No.7135457 whereas the closing number of same denomination ticket was shown as 074/006983 in way bill No.0545/11493079 and thus short remitted an amount of Rs.35/- being the cost of 10 tickets shown less in the way bill and thus pocketed this amount. And also in the same way bill you shown the closing No. of Rs.5.25 denomination ticket number as 087/842462 whereas the closing number of the same denomination was shown as 467 in the same Sr and thus short remitted an amount of Rs.26.25 being the cost of 5 tickets shown less in the way bill and thus pocketed this amount. This constitutes a serious misconduct in terms of Regulations 28 (x), (xxv) and (xxxii) of APSRTC Employees (Conduct) Regulations, 1963. 4) On 09.07.1993, after performing 5.45 hours Somrajapuram R/o duty, you have shown the closing number of Rs.6/- denomination ticket No. as 134/96311 in Sr.No.7135524, whereas the closing number of the same denomination ticket was shown as ‘101’ in way bill No.0545/11493080 and thus short remitted an amount of Rs.60/- being the cost of 10 tickets shown less in the way bill and thus pocketed this amount. And also in the same way bill you have shown the closing number of Rs.8.50 denomination ticket number as 003/452803 whereas the closing number of the same denomination was shown as ‘313’ in the same Sr and thus short remitted an amount of Rs.85/- being the cost of 10 tickets shown less in the way bill and thus short pocketed this amount. This constitutes a serious misconduct in terms of 28 (x), (xxv) and (xxxii) of APSRTC Employees (Conduct) Regulations, 1963. 5) On 14.07.1993, after performing 10.30 hours Bathili N/O service you have shown the closing number of Rs.4.25 denomination ticket number as 051/402523 in the Sr No.7137445 whereas the closing number of the same denomination ticket was shown as 051/402503 in the way bill No.0545/11493081 and thus short remitted an amount of Rs.85/- being the cost of 20 tickets shown loss in the way bills and thus pocketed this amount. And also in the same way bill you have shown the closing number of Rs.5.25 denomination ticket No. as 313/884604 whereas the closing number of the same denomination is shown as ‘614’ in the same SR and thus short remitted an amount of Rs.52.50 being the cost of 10 tickets shown less in the way bill and thus pocketed this amount. This constitutes serious misconduct in terms of 28 (x), (xxv) and (xxxii) of APSRTC Employees (Conduct) Regulations, 1963.” The petitioner submitted an explanation in response to the said charge sheet. A reading of the explanation ﬁled by the petitioner shows that he has almost admitted the guilt. In spite of the same, an Enquiry Oﬃcer was appointed, who, after conducting necessary enquiry, found the petitioner guilty of the said charges, levelled against him. On receipt of the enquiry report, the disciplinary authority, after issuing the show cause notice, with reference to the ﬁndings recorded by the enquiry oﬃcer, invited explanation from the petitioner, and passed ﬁnal order on 04.03.1994, removing the petitioner from the service. The said order of removal was questioned by the petitioner before the Industrial Tribunal, by ﬁling an application under Section 2-A (2) of the Industrial Disputes Act, 1947 (for brevity ‘the Act’). The Industrial Tribunal recorded a finding that there are no grounds to interfere with the ﬁndings recorded by the enquiry oﬃcer. Further, while examining the scope of interference with the punishment imposed by the disciplinary authority, a categorical ﬁnding was recorded by it that as the petitioner has committed cash and ticket irregularities, there are no grounds to interfere with the punishment imposed by the disciplinary authority. However, curiously, while recording such a ﬁnding, as referred to above, a further observation is made by the Industrial Tribunal to the following effect: “Still, it is not out of place for this tribunal to commend the management to explore the possibilities of appointing the workman afresh, such that he would get an opportunity to make a fresh beginning with a clear slate.” Pursuant to such an observation made the Industrial Tribunal, the Regional Manager, Srikakulam, has passed the orders, dated 11.03.1999, vide proceedings No.HC/785(9)/99-RM:SKIM, stating that there is no provision in the Regulations/Standing Orders of the Corporation to extend any beneﬁt of fresh appointment for such of the personnel who are removed on disciplinary proceedings. The said consequential order, dated 11.03.1999, is questioned in Writ Petition No.20736 of 1999. In both the writ petitions, Sri Aravala Rama Rao, learned counsel appearing for the petitioner, contended that the Industrial Tribunal failed to exercise the power under Section 11-A of the Act in a proper perspective. He further contended that having regard to the charges framed against the petitioner, it is not a case for removal of the petitioner from service; that though there was an observation by the Industrial Tribunal to the respondent-Management to consider the appointment of the petitioner afresh, the respondent-Management passed the proceedings, dated 11.03.1998, refusing to appoint the petitioner, without recording any valid reasons. Learned counsel appearing for the petitioner further submitted that in similar cases, in W.P.No.5574 of 2000 and batch, a learned Single Judge of this Court by an order, dated 21.02.2002, allowed the said writ petitions, directing the respondent-Corporation to give fresh appointments to the petitioners therein. On appeal by the respondent- Corporation, in Writ Appeal No.455 of 2003 and batch, a Division Bench of this Court upheld the said order by its judgment, dated 07.06.2005. Though learned counsel appearing for the petitioner has relied on the judgment, dated 21.02.2002, rendered by a Single Judge of this Court in Writ Petition No.5574 of 2000 and batch, which was upheld by a Division Bench of this Court, by the judgment, dated 07.06.2005, it is pertinent to note that in the said order, the learned Single Judge categorically found that the amounts involved therein are on minimal side and as such, granted the relief. In the instant case, at the outset, it is to be noticed that before the Industrial Tribunal, neither oral nor documentary evidence was adduced on behalf of the petitioner-workman. On behalf of the respondent-Corporation, the documentary evidence under Exs.M-1 to M-25 were marked though no oral evidence was let in. A reading of the charges framed against the petitioner, in the disciplinary proceedings, which are already extracted above, indicate that on various dates, the petitioner did not remit the sale proceeds of the bus tickets and thus, misappropriated the same. Initially, on 16.07.1993, the management found short remittance by the petitioner and on further enquiry, it came to light that even on 07.07.1993, 08.07.1993, 09.07.1993 and 11.07.1993 short remittances were made by the petitioner. In Ex.M-16, which is the reply of the petitioner to the charge sheet, he has clearly admitted that he failed to remit Rs.270/-, representing the sale proceeds of 100 tickets of Rs.2-75 paise denomination each. But, however, as regards the short remittances of sale proceeds of the bus tickets on various dates, he sought to give some explanations for it, which was not accepted by the disciplinary authority. It is also to be noted that before the Industrial Tribunal, on behalf of the petitioner memo was not ﬁled questioning the validity of the ﬁndings recorded by the Enquiry Oﬃcer. In view of such a situation and also in the absence of any further evidence from the side of petitioner questioning the ﬁndings recorded by the enquiry oﬃcer, the same has become ﬁnal. Even before this Court, no attempt is made to attack the findings of the Enquiry Officer. The next submission made by the learned counsel appearing for the petitioner is that the Industrial Tribunal did not exercise the power conferred on it under Section 11-A of the Act from a proper perspective. With regard to the scope of interference by the Industrial Tribunal with the punishment imposed on the petitioner by the disciplinary authority, it is to be seen that the Industrial Tribunal, after referring to various documents available on record, while examining the punishment imposed by the disciplinary authority, has categorically recorded a ﬁnding that this a case where the petitioner misappropriated the funds of the respondent-Corporation, having collected the fare but failed to issue tickets and also closed SR, which speaks of the deliberate attempt on the part of the petitioner in committing the cash and ticket irregularities. Ultimately, it held that there are no grounds to interfere with the punishment imposed on the petitioner by the disciplinary authority to substitute the same with any other lesser punishment. The point as to whether the Industrial Tribunal has exercised its discretion under Section 11-A of the Act from a perspective or not is a matter which has to be examined having regard to the facts and circumstances of each case, the gravity of the charges and the evidence available on record. In the case on hand, all the charges framed against the petitioner are very grave in nature and even in the explanation submitted by the petitioner to the charge sheet, virtually, all the charges were admitted by him. In that view of the matter, I am of the considered opinion that it is not a ﬁt case to award any lesser punishment than the punishment awarded by the Industrial Tribunal. Having regard to the gravity of the charges framed against the petitioner and also in view of the said ﬁndings recorded by the Industrial Tribunal, I do not ﬁnd any merit in the argument advanced by the learned counsel appearing for the petitioner that the Industrial Tribunal failed to consider the scope of Section 11-A of the Act from a proper perspective. Further, though the Industrial Tribunal recorded ﬁndings against the petitioner in the impugned order, however, in the penultimate portion of the order, it has observed that the Management may explore the possibilities of appointing the petitioner afresh. Such an observation, by itself, will not confer any right on the petitioner for seeking any appointment afresh in the respondent-Corporation. With reference to such an observation made by the Industrial Tribunal, the respondent-Corporation considered the case of the petitioner and passed the proceedings, vide dated 11.03.1999, rejecting the case of the petitioner for appointment as a fresh candidate as there is no such provision in the Regulations/Standing Orders of the Corporation. Once the Industrial Tribunal has recorded the ﬁndings that the charges levelled and proved against the petitioner are grave, and no interference is called for with the punishment awarded by the disciplinary authority, such an observation made by it is not a mandate for appointment of the petitioner as a fresh candidate. In view of the above, no grounds are made out warranting interference by this Court with the impugned order, dated 16.11.1998, in Writ Petition No.17764 of 2000 and accordingly, the writ petition same is liable to be dismissed. Consequently, Writ Petition No.20736 of 1999 is also liable to be dismissed. In the result, both the writ petitions are dismissed. There shall be no order as to costs. ____________________________ JUSTICE R.SUBHASH REDDY 08.09.2008 DR ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Chairman Cum Presiding Officer, Industrial Tribunal- Cum- Labour Court, Visakhapatnam 2 The A.P.S.R.T.C Rep.by its Regional Manger, Srikakulam Srikakulam District 3 The Depot Manger, A.P.S.R.T.C, Srikakulam-II Depot, Srikakulam District 4 2 CD copies.