*THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY +WRIT PETITION No.2620 of 2009 % Dated: 18-04-2009 # Polam Chenna Reddy Petitioner VERSUS $ The Industrial Tribunal-cum-Labour Court, rep., by Hon’ble Presiding Officer, District Warangal and another. Respondents ! Counsel for Petitioner: Mr. P.Sridhar Rao ^Counsel for Respondent 1: AGP forLabour. ^Counsel for Respondent 2: Smt. P.rajani Reddy, standing Counsel for APSRTC. <GIST: > HEAD NOTE: ? Cases referred 1. (2007) 2 SCC 433 2. Judgment dated 30-12-2008 in W.P.No.27040 of 1998 3. (1886) 17 QDB 536 4. (1959) 1 WLR 698 5. AIR 1967 SC 1274 6. (1992) 4 SCC 54 7. (2006) 1 SCC 479 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) SATURDAY, THE EIGHTEENTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 2620 of 2009 Between: Polam Chenna Reddy, S/o. Venkat Reddy, R/o.H.No.3-10-203, Reddy Colony, Hanamkonda, Warangal District. ..... PETITIONER AND 1 The Industrial Tribunal-cum-Labour Court, Rep by Hon'ble Presiding Officer, District Warangal. 2 The Depot Manager APSRTC, Bus Depot, Parkal, District Warangal. ..RESPONDENTS Counsel for the Petitioner:MR.P.SRIDHAR RAO Counsel for respondent No.1: AGP FOR LABOUR Counsel for respondent No.2: SMT P.RAJANI REDDY, STANDING COUNSEL FOR APSRTC. The Court made the following : O R D E R: This writ petition is filed for a writ of Certiorari to quash award dated 21-02-2007 in I.D.No.86 of 2005 and published on 03-07-2007 on the file of respondent No.1 to the extent of denying continuity of service, back wages and other consequential benefits to the petitioner. The petitioner is a conductor of respondent No.2-Corporation. While he was conducting service on route Parkal-Hanamkonda- Godavarikhani on 27-12-2002, a check was exercised by the checking officials at Stage No.15/17 leading to issuance of charge sheet, against the petitioner, with the following charges: “1. For having collected Rs.21/- from a passenger and issued the tickets bearing No.131/541666 of Rs.40-00 E.1 and 307/190015 of Rs.7/- deno. E.1 (total Rs.47/-) who boarded the bus at Parkal and bound for Garapally Ex-stages 7 to 17/27, these tickets are already issued/sold and accounted on the Stage No.1 at 5.00 a.m vide S.R.No.8509052 these tickets are reissued, which constitutes misconduct under Reg.28 (xxiii) and (ix) (a) read with 28 (x) of APSRTC Employees (Conduct) Regulation, 1963. 2. For having collected Rs.35-00 from another passenger and issued the ticket bearing No.725/818901 of Rs.30/- deno., E.1 and 444/1777790 of Rs.4/- (Total Rs.34/-) who boarded the bus at Parkal and bound for Godavarikhani, ex- stages 7 to 29, those tickets are already issued on the Stage No.1 at 5.00 a.m and accounted vide S.R.No.8509052 these tickets are reissued, which constitutes misconduct under Reg.28(xxiii) and (ix) (a) read with 28 (x) of APSRTC Employees (Conduct) Regulation, 1963. 3. For having collected Rs.8/- from a lady passenger and issued the bearing tickets 225/818900 of Rs.30/- deno, E.1 and 444/177790 of Rs.4/- deno. E1 who boarded the bus at Bhupalapally and found for Kataram, Ex-stages 15 to 19, those tickets are issued and accounted on the Stage No.1 at 5.00 a.m vide S.R.No.8509052 those tickets are reissued at the Stage No.15 to 19, which constitutes misconduct under Reg.28 (xxiii) and (ix) (a) read with 28 (x) of APSRTC Employees (Conduct)Regulation, 1963. 4. For having failed to issue valid passenger tickets to above (3) passengers boarded your bus at their boarding stage and discharged duties negligently causing serious loss of the Corporation while performing duty on 27-12-2002 which constitutes misconduct under Reg.28(xxiii) and (ix) (a) read with 28(x) of APSRTC Employees (Conduct) Regulation 1963.” The petitioner submitted his explanation denying the charges. However, the Enquiry Officer held the petitioner guilty of all the charges. After considering the explanation submitted by the petitioner to the show cause notice issued by respondent No.2, an order of removal was passed on 17-07-2003 by respondent No.2. The appeal and review petitions filed by the petitioner resulted in their dismissal by orders dated 28-08-2003 and 13-05-2005 respectively. The petitioner then raised an industrial dispute by way of I.D.No.86 of 2005 before respondent No.1-Tribunal. The said industrial dispute was disposed of by award dated 21-02-2007. A perusal of the award shows that the Tribunal discussed the material on record and found that re-issue of tickets, which were taken back by the petitioner against refund of fare to the passengers, was purely a technical mistake. The reasoning of the Tribunal on the core issue runs as under- “Admittedly the bus was detained in Parkal depot for five hours and most of the passengers were alighted from the bus. Petitioner refunded the amount to the passengers as per the instructions of the higher authorities and also prepared the statement. The contention of the petitioner’s counsel is that the bus restored after 5 hours and the petitioner was instructed to continue the service up to Godavarikhani. As such the validity of the tickets was not over and to cover up the shortage amount, petitioner issued those tickets to the passengers that too on the oral instructions of the Chief Inspector and Depot Manager. Petitioner in his spot explanation clearly submitted that Chief Inspector of Parkal depot instructed him to issue the refund tickets and he issued those tickets as per the instructions of the higher authorities and he is not at fault. Even in his explanation to the charge memo, he specifically stated that he issued the tickets only with the instructions of the higher authorities otherwise he has to bear the loss. During the enquiry, the statement of the TI-II was recorded and he specifically stated the passengers of charges 1 to 3 except one were traveling from Parkal itself and hence they have framed charges against the petitioner and he further stated that when once the ticket amount was refunded to the passengers, the ticket will loose its validity and it cannot be issued again. Petitioner in his spot explanation submitted that he issued the refunded tickets on the instructions of Chief Inspector, Parkal, but it was not denied by the Chief Inspector, Parkal at any point of time. The Enquiry Officer observed that it is a technical fraud. The petitioner resold the dead tickets to the fresh passengers. He further submitted that there is no endorsement of any Supervisor or Depot Manager regarding the issue of refund tickets If at all there was any endorsement, the preliminary enquiry should not have conducted. Respondent also argued the Depot Manager and Chief Inspector did not made any endorsement or gave any instructions to the petitioner in writing to issue those tickets. When once the amount is refunded the ticket will loose its validity and the petitioner is not supposed to issue the invalid tickets. He has to handover the same along with fare refunded statement in the depot. Petitioner is a senior conductor and he is expected to know rules of the corporation or otherwise he ought to have taken the written endorsement of the Chief Inspector or Depot Manager, but he failed to do so. However, on the particular day the bus was detained for five hours in the Parkal depot due to TRS bundh and hence, the petitioner refunded the amount to the alighting passengers and also prepared the fare refunded statement, but when the bus was restored against at about 11.30 hours the Controller instructed him to perform duty up to Godavarikhani, he issued the above said tickets to the passengers. In view of the circumstances prevailing at that time, the Court cannot presume mala fide intention on the part of the petitioner. For example if a passenger boarded the bus at Hanamkonda and bound to Godavarikhani he was compelled to alight at Parkal. In view of the Bundh the petitioner withhold the fare amount from Hanamkonda to Parkal and refunded the amount from Parkal to Godavarikhani. The argument of the petitioner’s counsel is that as the ticket was not used from Parkal to Godavarikhani, it is valid and only with that intention the petitioner issued the said tickets to the passengers who boarded the bus at Parkal. Whereas the contention of the respondent is that when once amount is refunded it become invalid and he cannot issue the same ticket to another passenger and it is against the standing instructions of the Corporation. Court feels that petitioner might have issued the tickets as he misunderstood the standing instructions, but not with any mala fide intention. However, petitioner is also duty bound to know the instructions properly and to follow them. He has not obtained the written endorsement of the Chief Inspector or the Depot Manager.” On the strength of the above reproduced reasoning, the Tribunal felt that the punishment of removal inflicted on the petitioner is disproportionate to the alleged misconduct and accordingly, the removal order was set aside with the direction to respondent No.2 to reinstate the petitioner into service as a fresh conductor in the present scale of pay, without continuity of service, back wages and attendant benefits. At the hearing, Sri P.Sridhar Rao, learned counsel for the petitioner, submitted and in my view rightly that denial of back wages and other service benefits on the facts of the present case is wholly unreasonable. Opposing this contention, Smt P.Rajani Reddy, learned Standing Counsel for respondent No.2-Corporation, submitted that even though the Enquiry Officer held that the petitioner committed a technical lapse and that there is no charge of mala fide intention on the part of the petitioner to misappropriate the amount by reissuing the tickets from Parkal to Godavarikhani, the fact still remains that the petitioner is found to be guilty of misconduct albeit technical in nature. She, therefore, relied upon the judgment of the Supreme Court in J.K.Synthetics Ltd., v. K.P.Agrawal and another[1] and submitted that as the petitioner is found guilty of misconduct, he is not entitled to the consequential benefits. In my considered view, the submission of the learned counsel for the petitioner deserves acceptance. The admitted facts are that when the bus reached Parkal, it was stopped by certain agitating persons and as the bus was detained at Parkal depot for five hours, most of the passengers, who bought tickets up to Godavarikhani, discontinued their journey and demanded the petitioner to refund the balance fare. Accordingly, the petitioner, on the oral instructions of the Chief Inspector, refunded the fare and took back the tickets issued to them. However, the service of the bus was resumed from Parkal up to Godavarikhani thereafter and the petitioner, instead of issuing fresh batch of tickets to the passengers, who boarded the bus at Parkal bound to Godavarikhani, re-issued the same tickets, which were earlier issued to the passengers, who discontinued their journey from Parkal. Though the word misconduct is not capable of a precise definition, this Court reviewed the case law on this aspect in Abdur Rahim v. Osmania University, Hyderabad[2]. It is relevant to extract a relevant portion of the judgment in the said case hereunder: “In Pearce Vs. Foster[3] the Queen’s Bench Division held that if a servant conducts himself in a way inconsistent with the faithful discharge of his duty in service, it is misconduct. In Laws Vs. London Chronicle (Indicator Newspapers) Ltd., [4] the Court of Appeal held that a disregard of an essential condition of the contract of service may constitute misconduct. The Stroud’s Judicial Dictionary described ‘misconduct’ as “misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct”. In S.Govinda Menon Vs. Union of India[5] the Supreme Court held that “the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings”. In State of Pubjab Vs. Ram Singh, Ex.Constable[6] the Supreme Court while considering the scope and ambit of the expression ‘misconduct’ in Rule 16.2(1) of Punjab Police Manual, 1934 referred to Black’s Law Dictionary and P.Ramanatha Aiyar’s Law Lexicon, which are reproduced hereunder: “Misconduct has been defined in Black’s Law Dictionary, Sixth Edition at page 999 thus: ‘A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness’. Misconduct in office has been defined as: ‘Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act’. P.Ramanatha Aiyar’s Law Lexicon, Reprint Edition 1987 at page 821 defines ‘misconduct’ thus: ‘The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or Statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, which some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected”. After considering the said expression with reference to the above reproduced meaning of the expression contained in the Law Dictionaries, the Supreme Court held: “Thus it could be seen that the word ‘misconduct’ though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve mortal turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty, the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order”. The judicial opinion on the expression ‘misconduct’ appearing in the case law referred to above undoubtedly brings every act of an employee, whose conduct is inconsistent with the faithful discharge of his duties, who had ill-motive or who abused his power, within the sweep of the said expression.” On the above admitted facts, even taking the most stringent view, it cannot be said that the misconduct of the petitioner is such that he intended to make any personal gain out of such re-issue of tickets. Applying the ratio contained in the above mentioned judgments, I am of the view that the petitioner is not guilty of misconduct in its true sense. Therefore, the judgment of the Supreme Court in J.K.Synthetics (1 supra) has no application to the present case. Then coming to the payment of back wages, in U.P.Brassware Corpn., Ltd., v. Uday Narain Pandey[7], the Supreme Court held that the initial burden is on the employee to show that he was not gainfully employed. In para 8 of the pleadings filed before the Tribunal, the petitioner pleaded as under- “It is submitted that the petitioner is now 52 years old and that there is no possibility to secure any alternative job being his over age. Due to which the family of the petitioner has been struggling a lot and putting into untold hardship.” There is no record to show that the Corporation has denied the said averments. In my considered view, in the absence of any denial by the Corporation that the petitioner was not gainfully employed during the period he was out of service, he cannot be denied back wages on the ground that he was gainfully employed. But, however, in order to balance the interests of the petitioner with that of the public interest, a suggestion is made by the Court to the learned counsel for the petitioner that the petitioner may agree for receiving 50% of the back wages. The learned counsel fairly conceded to this suggestion. In view of the same, the award of the Tribunal is modified by directing respondent No.2 to extend the benefit of continuity of service including that of notional increments to the petitioner with 50% of back wages for the period, during which he was out of employment. Subject to the above modification, the writ petition is disposed of. As a sequel to disposal of main petition, WPMP No.3357 of 2009 filed by the petitioner for interim relief is disposed of as infructuous. C.V.NAGARJUNA REDDY, J Dated 18th April, 2009 vrn L.R. Copy to be marked. [1] (2007) 2 SCC 433 [2] Judgment dated 30.12.2008 in WP.No.27040 of 1998 [3]) (1886) 17 QDB 536 [4]) (1959) 1 WLR 698 [5]) AIR 1967 SC 1274 [6]) (1992) 4 SCC 54 [7] (2006) 1 SCC 479