THE HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION NO.13360 OF 1998 Dated:12.08.2010 Between: A. Balakistaiah …. Petitioner AND The Depot Manager, APSRTC, Tandur Bus Depot, Ranga Reddy District and others …..Respondents THE HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION NO.13360 OF 1998 ORDER: This writ petition is filed for issuance Writ of Certiorari to call for the records relating to I.D.No.390 of 1992 on the file of the Labour Court-III at Hyderabad, dated 15.12.1995 and consequently to quash the G.O.Rt.No.1967 dated 09.07.1996 and to declare the removal order of the petitioner from the service from the date of his suspension i.e., from 29.09.1984 issued by the second respondent, as illegal and void, and to grant all consequential benefits such as arrears etc., 2. The brief facts of the case are as under:- The petitioner in the writ petition is a workman within Section 2 (A) of the Industrial Disputes Act, 1947 (hereinafter in short referred to as “the Act”). He filed an application under Section 2A (2) of (Andhra Pradesh Amendment Act, 32 of 87) of the Act before the Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad, which was taken on file and the case was numbered as I.D.No.75 of 1990. While it was pending for adjudication, the Government of Andhra Pradesh issued G.O.Ms.No.146, dated 07.10.1992 determining the territorial jurisdiction of all the Industrial Tribunals and Labour Courts and as per the territorial limits, the case was transferred to the Labour Court-III, Hyderabad for disposal. Therefore, the said I.D. was renumbered as I.D.No.390 of 1992. 3. The petitioner filed an application under Section 2A (1) read with Sub Section (2) of the Act for adjudication. He was appointed as a conductor in the year 1960. Later on, he was promoted to as an Assistant Depot Clerk from the post of Conductor to controller post and latter allotted to Respondent No.1 and he was removed from service and on 26.12.1989 on the ground of certain charges. Questioning the same, he raised an industrial dispute by way of filing an application under Section 2A (1) read with Section (2) of the Act. The Industrial Tribunal-cum-Labour Court-III, Hyderabad passed an award on 15th December, 1995 dismissing the I.D. Aggrieved by which, the present writ petition has been filed by the petitioner-workman. 4. The learned counsel for the petitioner raised six grounds mainly as under:- The learned counsel for the petitioner-workman contended that during the suspension period the petitioner was not paid the subsistence allowance; that he was not supplied certain documents mainly (i) PWD 4 cash book and (ii) J forms; that he was removed from the service with retrospective effect i.e., from the date of suspension; that the officer, who conducted the enquiry and the officer passed an order of dismissal is one and the same; that the Labour Court has relied upon the evidence led in I.A.No.387 of 1992 relating to one H.K.Babu and the learned counsel for the petitioner further raised a ground that Section 11 (A) proviso contemplated that no fresh evidence can be taken by the Labour Court and contrary to the same the Labour Court had taken a fresh evidence from the management. For these reasons, the learned counsel for the petitioner/workman submitted that the award passed by the Labour Court is liable to be set aside. 5. In support of his contention, the learned counsel for the petitioner submitted on the aspect of non-payment of subsistence allowance, which resulted the petitioner did not go and attend the enquiry from Kosigi to Hyderabad and Hyderabad is the place where the enquiry was conducted. Therefore, it amounts to violation of principles of natural justice, for which he relied upon the judgment of the Supreme Court reported in Ghanshyam Das Shrivastava Vs., State of Madhya Pradesh[1] and Capt. M. Paul Anthony Vs., Bharat Gold Mines Ltd., (1999 (3) All India Services Law Journal) paragraph 32. It is also submitted that because the petitioner was not supplied the documents i.e., four cash books and J forms were not furnished to him and were produced before the Court. Therefore, the enquiry conducted by the enquiry officer and also the Labour Court is improper, for which he relied upon the judgment of the Apex Court reported in State of Gujarat and another Vs., Ramesh Chandra Mashruwala[2]. The learned counsel for the petitioner further submitted that with regard to the order of dismissal with the retrospective nature is concerned, he relied upon the judgment of the Supreme Court reported in R. Jeevaratanam Vs., State of Madras[3]. 6. On the other hand, the learned counsel appearing for the respondent-Corporation contended that the petitioner did not raise any dispute with regard to the non-payment of the subsistence allowance during the course of enquiry or before the enquiry officer or during the course of enquiry before the Labour Court. Therefore, the said ground is also sustained. On the other hand, he submitted that the subsistence allowances were paid to the petitioner on 09.8.1985, 07.08.1986 and 13.01.1988 and the petitioner received and passed on the receipts of all the acknowledgements. He further submitted that since the domestic enquiry conducted by the enquiry officer during the course of domestic enquiry was held to be invalid, the Labour Court had given an opportunity by exercising the powers under Section 119 and giving the opportunity both the parties to the litigation namely the workman and the management and the workman has not availed the opportunity given to him for adducing the evidence and marking the documents whereas the management has adduced the evidence and marked the documents. Therefore, came to the conclusion that the charges leveled against the workman were proved and consequently, passed an award for dismissal. Therefore, the impugned award does not suffer from any legal infirmity and therefore, the writ petition is liable to be dismissed. 7. He further submitted that there is no scope for interference when the Labour Court passed an order by exercising its power under Section 11 (A) of the Industrial Disputes Act, this Court has a limited power to interfere with the award passed by the Labour Court. He submitted that unless the Labour Court passed an award without there being a jurisdiction or it passed an award without considering the evidence on record or the award passed by the Labour Court is perverse. He also submitted that the domestic enquiry conducted by the management held to be irregular and illegal by Labour Court, The Tribunal has got power to conduct enquiry. By placing the reliance in the case reported in M/s. Amrit Vanaspati Co, Ltd., Vs., Khem Chand and another[4]. He submitted that the Labour Court has got power to conduct the enquiry and in the process of enquiry it can take fresh evidence also. Therefore, no irregularity is committed by the Labour Court. 8. The undisputed facts are that the petitioner was appointed as a conductor in the respondent-Corporation in 1960 and later on, he was promoted to as an Assistant Depot Clerk from the post of Conductor to Controller post and latter allotted to Respondent No.1. While he was working as a Depot Clerk, the respondent-corporation placed the petitioner under suspension on the ground that he violated the regulations. Consequently, an enquiry officer was appointed and he was given a show cause notice and in response to which, he submitted his explanation. The enquiry officer submitted the enquiry report. Thereafter, basing on the enquiry report, the petitioner was given a show cause notice as to why he shall not be removed from the service. In response to which, the petitioner submitted his explanation. Nnot satisfying with the explanation submitted by the petitioner, the disciplinary authority passed the order of removal on 26.12.1989. Having agreed by the said order, the petitioner raised an Industrial Dispute by way of filing application under the Industrial Disputes Act. During the course of enquiry, the Labour Court framed the following issues.- 1. For having failed to remit into bank, after disbursement of salaries to the employees, an amount of Rs.90,963.28 Ps. which was drawn excess in the salary bills of Tandur Depot for the months of March, 1983 to April, 1984 or inform the Depot Manager, Tandur as per the particulars sanctioned in annexure-A and thus misappropriated the said amount, which act amounts to misconduct under Regulation No. 28 (x) Conduct Regulations read with Regulation 9.2 (xi) of C.C.C.A. Regulations, 1967. 2. For having retained an amount of Rs.6,000/- which was drawn excess in the salary bill of August, 1984 without informing the Depot Manager or remitting it in the bank under suspicious circumstances, which act amounts to misconduct under Regulation No.28 (xxxi) of A.P.S.R.T.C. Employees (Conduct) Regulations, 1963. 3.For having failed to affix revenue stamps worth Rs.279.80 (as shown in annexure-B) in the salary bills of Tandur Depot for the months of April, 1984 to August, 1984 which was misappropriated by you which amounts to misconduct under Regulation 28 (ii) and (x) of APSRTC Employees Conduct Regulations, 1963. 4. For having failed to obtain signatures of the following 18 employees in the Salary bill of June, 1984 as having paid salaries, in spite of making payment of salaries which act amounts to misconduct under Regulation No.20 (xxxi) of A.P.S.R.T.C. Employees (Conduct) Regulations. Sl.No. Name Staff No. Designation 1. M.Y.A. Khan 47387 Driver 2. Abdul Sattar 49767 Driver 3. A. Samad 80795 Driver 4. Jani Pasha 87935 Driver 5. Afsar Jani 88139 Driver 6. Abdul Khader 88247 Driver 7. Sultan Khan 88756 Driver 8. Abdul Sattar 89818 Driver 9. Kagbool Ahmed 90648 Driver 10. Khallluddin 38606 Driver 11. M.A. Hanman 78629 Driver 12. Md.Mukta Pasha B.480 Conductor 13. Syed Naseer 72834 Mechanic 14. H.A. Neeri 85898 B.S. 15. S.A. Aziz 30244 Cleaner 16. Balaiah - Casual Cleaner 17. Jalul Hussain - -do- 18. Tajul Hassan - -do- 1. For having maintained PWD-4 cash book in improper and clumpsy manner as shown below, which act amounts to misconduct under Regulation 28 (xxxi) of APSRTC Employees (Conduct) Regulations, 1963. 1. Noting making the entries relating to cash transaction date-wise but showing them all in one entry i.e., on one day prior to 20.06.84. 2. No entries were made in the cash book after 20.06.84 3. Not noting the voucher particulars in the cash book for the period for the payment made. 9. On behalf of the workman, neither himself nor anybody was examined but on behalf of the workman Exs.W.1 to W.20 were marked. On behalf of the respondent-management, M.Ws.1 to M.W.3 were examined and Ex.M1 to M.25 were marked. 10. The Labour Court found that since the domestic enquiry conducted by the enquiry officer was held to be irregular it was not taken any consideration and accordingly held it is illegal. Therefore, a fresh opportunity was given to both the parties i.e., the workman as well as the management. After considering the evidence on record on all the five charges, the Labour Court held that the charges leveled against the workman are proved. The Labour Court observed as far as the domestic enquiry is concerned, the enquiry was an ex parte one as well as it is found that the domestic enquiry is vitiated and the respondent is given an opportunity to adduce the evidence to prove the charges. On behalf of the respondent-management, three witnesses were examined and Exs.M.1 to M.25 were marked and no witness was examined for the petitioner. The petitioner relied upon Exs.W.1 to W.20, which were marked at the time of hearing. Hence, the contention of the advocate of the petitioner that adverse inference can be drawn for not filing of PWD 4 cash book. While answering charge No.2, the Labour Court held charge No.2 is also established as the petitioner himself admitted that the excess amount drawn was kept with him till 22.12.1984. It also amounts to temporary misappropriate. It also held that M.W.1, who deposed that the Depot Clerk while disbursing the salaries to the employees has to collect 0.20 Ps. from the employees and he should affix revenue stamps on the acquittance register. As per the record for the period in question of the disbursement, the depot clerk was Sri Rama Krishnaiah. It is the petitioner. M.W.2 on verification of the salary bills right from January, 1984 to March, 1984 that there was an excess drawal and for the above period stamps worth of Rs.279.80 was not affixed. The delinquent/petitioner herein had not accounted a sum of Rs1,243.08 Paise 11. M.W.3 deposed that he verified the salary bills pertaining to the case and they are filed in I.D.No.387 of 1993 at the time of enquiry and he perused the originals of audit report and stamps were not properly affixed. In view of the same it was held that charge No.3 is also proved. 12. The acquittance of 18 employees not filed by the respondent- corporation but there was evidence of M.W.2 and M.W.3 and the audit report to say that the signatures of 18 employees were not obtained and paid the amount to the 18 employees and therefore, charge No.4 was also held to be proved. As far as charge No.5 is concerned, the finding of the Labour Court that the respondent did not file PWD-4 cash cash book but there is evidence to show that the cash book was improperly maintained in adamant manner and that he did not make entries and hence, charge No.5 was also established. 13. Having regard to its findings recorded by the Labour Court what is the scope of this Court to interfere with the matter in question? 14. The learned counsel for the petitioner submitted that during the pendency of the enquiry, the petitioner was not paid the subsistence allowance. 15. On behalf of the respondents, a counter affidavit was filed. In paragraph 10 of the counter affidavit, it is mentioned that in view of a representation made by the petitioner, the subsistence allowances were paid from time to time duly obtaining sanction from the competent authority. Coming to the non-supply of the documents is concerned, in paragraph 11, it is stated that all the documents relating to the charges were already supplied and the petitioner deliberately avoided to attend the enquiry before the enquiry officer. It is further submitted that in view of the opportunity given by the Labour Court, the respondent herein have adduced the evidence before the Labour Court and all the charges leveled against the petitioner were established before the Labour Court in I.D. Therefore, the plea of non-payment of salaries, subsistence allowance is not taken before the Labour Court. The Labour Court had considered as to whether the order of removal passed by the management was correct or not and whether the charges leveled against the petitioner were proved or not. The Labour Court after considering the evidence on record that the charges leveled against the petitioner were proved. Referring to section 11 (A) of the Act, it is submitted that by virtue of the proviso to Section 11 (A) of the Act, the Labour Court is not proper to take any evidence in spite of that the Labour Court had taken the evidence from the management. Therefore, the order passed by the Labour Court is illegal. Admittedly, the case of the petitioner was during the course of enquiry because of non-payment of subsistence allowance he could not appear before the enquiry officer. Therefore, the enquiry was ex parte. Therefore, the labour Court in its findings held that the enquiry was also irregular as such a fresh opportunity was given to both the parties to adduce the evidence, which is permissible under law. Accordingly, an opportunity was given to the petitioner/workman as well as the respondent- management. The petitioner did not adduce any oral evidence but he got marked Exs.W.1 to W.20 and on behalf of the management Ex.MWs.1 to MW.3 were examined and Exs.M1 to M.25 were marked . All the charges relating to the finance irregularities. It is a misappropriation and tampering of misappropriation. The first charge is framed against the petitioner was about the non-remittance of the amount of Rs.90,963.28 Ps., which constitute a misconduct under Regulation 28 (x) of the Conduct Regulations read with Regulation 9.2 (xi) of C.C.C.A. Regulations, 1967. Second charge is relating to the retention of amount by the petitioner relating to the bills for the month of August, 1984 without informing to the depot manager, which is also constitute misconduct under Regulation N.28 (xxxi) of APSRTC Employees (Conduct) Regulations, 1963. With regard to the third charge is concerned, it is with regard to non-affixing of the revenue stamps worth of Rs.279.80 paise in the salary bills for the months of April, 1984 to August, 1994 which constitute misconduct under Regulation 28 (ii) and (x) of APSRTC Conduct Regulations 1963. With regard to the fourth charge is concerned, having failed to obtain the signatures of about 18 employees in the salary bills after June 1984 having paid the salaries in spite of making the payment of salaries, which amounts to misconduct under Regulation No.28 (xxxi) of APSRTC Employees (Conduct) Regulations 1963. With regard to charge No.5 is concerned, that having maintained P.WD 4 cash-book, in improper and clumpsy manner, which act also amounts to misconduct under Regulation 28 (xxxi) of the APSRTC Employees (Conduct) Regulations, 1963. 16. Therefore, as could be seen the finance irregularities in respect of charge Nos.1 to 3 and though charge Nos.4 and 5 are concerned, they did not belong to the finance irregularities, but it is with regard to non-obtaining signatures of the employees, to whom the petitioner stated to have paid the salaries and non-payment of cash book by the petitioner pursuant to the payment make to the employees, it also constitutes misconduct, which are also proved. 17. Under these circumstances, when the Labour Court conducted the enquiry by exercising the powers under Section 119 of the Act, held that the charges leveled against the petitioner are proved, the grounds that have been raised by the learned Counsel for the petitioner are unsustainable, under law. Therefore, I do not find any reason to interfere with the impugned award. 18. Accordingly, the writ petition is dismissed. No order as to costs. _______________ G. CHANDRAIAH, J 12th August, 2010 bud THE HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION NO.13360 OF 1998 Dated:12.08.2010 [1] AIR 1973 Supreme Court 1183 [2] AIR 1977 Supreme Court Page 1619 [3] AIR 1966 SC 951 [4] AIR 2006 SC 2739