THE HON'BLE MR JUSTICE C V RAMULU Writ Petition No.28219 OF 2005 DT. 14.2.2011 Between: The Depot Manager, Kushaiguda,Hyd … Petitioner And SAR Ahamed and another … Respondents Counsel for the Petitioner: Sri K Madhava Reddy Counsel for respondents: The Court made the following ORDER: THE HON’BLE SRI JUSTICE C V RAMULU WRIT PETITION No. 28219 of 2005 ORDER: This writ petition is directed against the award passed by the Industrial Tribunal-II , Hyderabad in I D No. 77 of 2005 (Old I D No. 142 of 2003 on the file of the Labour Court-I, Hyderabad), wherein the application filed by the first respondent herein/workman under section 2 (A) (ii) of the Industrial Disputes Act seeking to set aside the removal order passed by the management was allowed and the petitioner/management was directed to reinstate the workman/first respondent herein with continuity of service and all other attendant benefits together with only 20% of the backwages . It appears that the first respondent herein was appointed as conductor in APSRTC on 23.3.1990 and subsequently his services were regularized w.e.f. 1.9.1994. While so, on 30.5.2001 when the petitioner was conducting bus on route ‘ECIL to Ghatkesar’, a check was exercised at stage no.12 and the checking officials found certain cash and ticket irregularities and issued a charge sheet enumerating the following charges; “1.. For having failed to complete the ticket issues even after passed one fare stage. 2.. For having collected the requisite fare of Rs.5.50 Ps from a lady passenger at boarding point and issued un-connected ticket bearing No.092/945602 of Rs.5.50 ps denomination found traveling from ECIL Cross Roads to Pogulagudem on stage 6 to 13, which constitutes misconduct in terms of Reg. 28 (xxiii) of APSRTC Employees ( Conduct ) Regulation 1963. 3.. For having detained the service for 40 minutes duly arguing with the checking officials and inconvenience to the traveling public, which constitutes misconduct in terms of Reg. 28 (viii) and (ix) (a) of APSRTC Employees (Conduct) Regulation 1963. 4.. For having refused to attest the charge memo, conductors check sheet i.e., 43 R and passengers statements, which constitutes to a serious misconduct in terms of Reg. (viii) and (ix) (a) of APSRTC Employees (Conduct ) Regulations, 1963.” The workman submitted his explanation denying all the charges, however, having not satisfied with the explanation, an enquiry was ordered and enquiry officer was appointed. On completion of the enquiry, the enquiry officer submitted a report holding the petitioner guilty of the charges. The disciplinary authority after going through the report of the enquiry officer and relevant material available on record and after completing all the formalities passed an order of removal on 7.5.2001. Aggrieved thereby, the workman preferred an appeal and the same was rejected on 31.12.2001 and the revision also dismissed by orders dated 30.9.2002. Having no other option, the workman filed an application under section 2 (A) (ii) of the I D Act seeking to set aside the removal order passed by the management. The case of the workman before the Tribunal is that enquiry was not properly conducted and charges are trivial in nature and absolutely there was no evidence to prove the same, even assuming that there is some misconduct on the part of the workman, the punishment is shockingly disproportionate. The management/petitioner herein filed a counter affidavit denying the allegations made by the workmen and it is further stated that the workman in short span of 10 years of service, suffered punishment of warning for once and his increments were deferred twice and was removed from service in the present case, therefore the order of removal from service by the management is just and proper and does not call for any interference by the Court below/Labour Court. Before the Labour Court, though none were examined and no documents were marked, however, on the basis of the material available on record, the Labour court observed that enquiry was properly conducted and same is valid, however it came to the conclusion that the charges framed against the petitioner were not proved and recorded its findings, which read as under; “Out of the confiscated tickets, ticket no. 082/945633 finds place in the record and according to the petitioner he issued the said ticket to the said passenger and in such circumstances, it was the duty of the respondent to examine the said passenger either in departmental enquiry or with permission before this Court to say that in fact the said conductor had given her the ticket bearing No. 082/945602 and that did not issue the ticket bearing No. 082/945633 to her to substantiate the case of the respondent corporation against the petitioner. It is much more so in view of two different statements of the said witness one is being attested by alleged independent witness and another is not attested by such an independent witness. Had the said passenger namely Usha Rani was examined by the respondent corporation as it is it’s witnesses there was possibility for the petitioner to cross examine her and elicit the truth, from her as to how and under what circumstances she gave such two statements and that who compelled her to give statements in such a way one without mentioning the ticket number and another mentioning the details of the ticket number etc., so as to suit the circumstances of the case of the disciplinary authority. In such circumstances non examination of the said passenger is definitely fatal to the case of the disciplinary authority. The above aspects were not at all considered by the enquiry officer, appellate authority and review authority though persistently canvassed and contended on behalf of the petitioner. As seen from the document no.12 i.e., statement of N G Rao, concerned TTI recorded during the enquiry also he did not clarify that under such and such circumstances he had to record two statements of the said passenger in the manner described supra. The case of the respondent that for about 40 minutes the petitioner went on arguing the matter with the checking officials causing inconvenience to the traveling public. But in the evidence of the said TTI recorded before the enquiry officer he did not depose that the conductor prevented the service for 40 minutes. However, he deposed that said conductor developed some argument and prevented the checking officials from writing the case. Astonishingly, document no.1 statistical return discloses that the said bus reached the destination at 10.05 hours instead of 9.55 hours on that day i.e., with 10 minutes delay because the concerned controlled mentioned the arrival time of the said bus as 10.05 and that again left the bus at 10.10 hours in the relevant column and for the said reason also I am not convinced with the contention of the respondent that the said conductor detained the bus for40 minutes. There is no evidence from the passengers of the bus that the conductor so detained the bus for 40 minutes. There is no evidence from the passengers of the bus that the conductor so detained the bus for 40 minutes and that caused inconvenience to them. When a reasonable doubt is entertained about the genuiness of MTD 43 R and also about the said two statements of the passenger the charge no.4 also holds no water wherein it is alleged that the petitioner refused to attest the said charge memo, conductors check sheet and passengers statement. Similarly when it is believed that petitioner issued ticket no.982/945633 to the said passenger, the charge no.1 also holds no water to come to a conclusion that he failed to complete the ticket issues even after passing one fare stage. Even though the petitioner put forth his case in document no.6, explanation to the charge memo, in his statement during the enquiry in document no.13, in document no. 15 objections and comments submitted by him as against the report of the enquiry officer and in document no. 17 explanation to the show cause notice so also in the appeal and revision pertaining to the proceedings in document 19 and 20 the same was not appreciated by the concerned authorities. Therefore, I am totally convinced with the contention of the learned counsel for the petitioner that the domestic enquiry report in document no. 11 and the enquiry officers report dated 8.10.2001, removal orders of the petitioner issued by the Depot Manager, Kushaiguda depot dated 7.12.2001 and also the document No. 19 and 20 proceedings of the Divisional Manager and Regional Manager concerned to in the appeal and review filed by the petitioner are unjust, illegal and therefore they are liable to be set aside and accordingly they are hereby set aside. Thus, points 1 and 2 are decided against the respondent and in favour of the petitioner. Point No.3 : For the reasons mentioned above under points 1 and 2 the removal orders passed by the respondent against the petitioner which were confirmed by appellate and revisional authorities are set aside. As seen from the record, the review petition was dismissed on 30.9.2002 and the petitioner filed the present I D nearly after about one year and there is some in action on his part in getting progress of the proceedings of this petition. But for such delay it is not desirable to refuse him the relief of reinstatement and therefore I am satisfied to hold that this is a fit case for ordering reinstatement of the petitioner. According to the petitioner ever since his removal orders from service he is unemployed and could not seek employment else where in spite of his best efforts and the respondent in his counter denied the same and required the petitioner to prove the said aspects. Prima facie, the petitioner did not prove with any material that he was not gainfully employed during the said removal period and therefore question of failure of the respondent to prove that the petitioner was gainfully employed does not arise. In every case of reinstatement it is not automatic to award backwages and the said delay and in action on his part can be considered in favour of respondent in awarding full back wages. Therefore, in the circumstances of the case, I am inclined to award back wages of only 20 % to the petitioner and together with all other benefits and continuity of service. In the result, petition is partly allowed setting aside the removal orders passed by the respondent against the petitioner (which were confirmed by the appellate and review authorities) directing the respondent to reinstate the petitioner into service with continuity of service and all other attendant benefits together with only 20 % of backwages and nothing more. The parties shall bear their own costs.” Aggrieved by the same, the present writ petition is filed. Learned standing counsel for petitioner corporation Mr K Madhava Reddy strenuously contended that the Labour Court having found that the enquiry was valid, just and proper, ought not to have interfered with findings recorded therein. I am afraid, I am not able to agree with such submission made by the learned counsel for petitioner corporation. May be in a given case, the Labour Court may hold that the enquiry is properly conducted but still it may record a finding stating that the evidence let in is not sufficient to hold the workman guilty or say that particular witness was not examined, therefore there is no sufficient evidence to hold the workman guilty. In the present case, the Labour Court examined the matter as to the very issuance of ticket in respect of a lady passenger traveling from stage No.6 to 13 and it gave a finding that the ticket held by the lady passenger was found to be genuine one and not unconnected ticket as alleged in the charge. Both tickets were marked and on close examination of the tickets, it appears that the petitioner has issued a correct ticket but to implicate the workman, the TTIs have framed a wrong charge, and the very pleadings shows that the workman has argued for some time with the TTIs as regards genuineness of the tickets and detained the bus for some time. This appears to have in fact provoked the TTIs in framing the charges. Be that as it may, the Labour Court as noticed above has recorded a clear findings that the workman was not guilty of the charges but under the circumstances passed an award directing the petitioner management to reinstate the workman into service with continuity of service, attendant benefits but only with 20 % of the backwages. Insofar as awarding of backwages is concerned, I am of the considered opinion that the Labour Court ought not to have granted 20 % of the backwages while exercising the powers under section 11 (A) of the I D Act. Admittedly, the past conduct of the workman was not that good as he was warned once and his increments were deferred twice in a short period of service of about 10 years. Therefore I am of the opinion that the award passed by the labour Court requires to be modified by deleting the portion of award wherein workman/first respondent herein was awarded 20% of the backwages, which is nothing but rewarding the workman. In the circumstances, the award of the labour Court is modified and the same be read as under; The petitioner management is directed to reinstate the workman/first respondent with continuity of service and all the attendant benefits, but without backwages. Accordingly, the writ petition is disposed of. No costs. ____________ C V RAMULU,J DATE: 15.2.2010 TVK THE HON’BLE SRI JUSTICE C V RAMULU WRIT PETITION No. 28219 OF 2005 DATE: 14.2.2010