THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.4024 OF 2008 DATED NOVEMBER, 2010 BETWEEN M.Narasaiah … Petitioner And The Depot Manager, APSRTC., Bus Depot, Narketpally, Nalgonda District. … Respondent THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.4024 OF 2008 O R D E R Exercise of jurisdiction by the Labour Court-III, Hyderabad, under Section 11-A of the Industrial Disputes Act, 1947 falls for consideration. In exercise of such jurisdiction the Labour Court, by its NIL Award dated 20.09.2007, dismissed the claim of the petitioner in I.D.No.86 of 2006. Aggrieved thereby, he is before this Court. The petitioner, a Conductor in the service of the Andhra Pradesh State Road Transport Corporation (APSRTC) since the year 1991, was subjected to disciplinary proceedings under charge sheet dated 14.12.2005 on the following two charges: “1. For having collected Rs.3.00 at the place of boarding point itself and issued used ticket bearing No.620/920064 of Rs.6/- deno., (which was already sold and accounted at stage No.13 in STAR No.020/06256) to a passenger who boarded the bus at Malkapuram and alighting at Toopranpet ex-stages 10 to 9, which constitutes misconduct under Reg.28(xxiii) of APSRTC Employees (Conduct) Regulations, 1963. 2. For having issued the tickets bearing No.493/920660 to 666 of Rs.3/- deno., to 7 passengers on sighting the TTIs even after collecting the requisite fare at the place of boarding itself, who boarded the bus at Malkapuram and alighting at Toopranpet ex-stages 10 to 9, which constitutes misconduct under Reg.28(xxii) of APSRTC Employees (Conduct) Regulations, 1963.” After a regular enquiry, the petitioner was removed from service under order dated 05.06.2006. His appeal and thereafter, his review petition met with failure. He therefore approached the Labour Court by way of the subject I.D. As the petitioner did not dispute the validity of the enquiry but only the findings recorded therein, the Labour Court framed the following issues: 1. Whether the domestic Enquiry Officer and the respondent were justified in holding that the petitioner was guilty under the charges levelled against him? 2. Whether the punishment of removal from service imposed against the petitioner was appropriate? 3. To what relief?” Upon examining the evidence adduced in the enquiry, the Labour Court concurred with the Enquiry Officer that the charges levelled against the petitioner were duly established and being of the opinion that the punishment of removal from service was not disproportionate, it dismissed the I.D. By virtue of Section 11-A of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’), the Labour Court is empowered in the case of an industrial dispute relating to the ‘discharge’ or ‘dismissal’ of a workman to set aside the same and direct reinstatement of the workman on such terms and conditions as it thinks fit, if it is satisfied that such ‘discharge’ or ‘dismissal’ was not justified. It is also entitled to award lesser punishment in lieu of ‘discharge’ or ‘dismissal’ as the circumstances of the case require. This power of the Labour Court has now been conditioned by the judgments of the Supreme Court, requiring it to undertake an enquiry as to whether the case before it is an appropriate one for re-appreciation of the evidence adduced during the enquiry. The Labour Court should not interfere with the findings of the Enquiry Officer only because it is lawful to do so or because another view is possible. It has to come to the conclusion that a verdict of guilt has been arrived at by the Enquiry Officer where the materials on record suggested otherwise, i.e., such findings were perverse (USHA BRECO MAZDOOR SANGH V/s. MANAGEMENT OF USHA BRECO LIMITED[1]). Needless to state, in the event the Enquiry Officer records a manifestly perverse finding contradictory to the evidence on record or overlooks material evidence or misinterprets the same, there can be no dispute that it would be a ‘proper case’ for the Court to re-appreciate the evidence. The issue presently is whether the Labour Court discharged this statutory duty as per established norms and parameters. Both the charges against the petitioner were serious in nature reflecting upon his integrity and threatened his basic entitlement to continue in the service of the APSRTC. In UNION OF INDIA V/s. GYAN CHAND CHATTAR[2], the Supreme Court observed that a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the employee concerned and he would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi criminal nature was required to be proved beyond any shadow of doubt and to the hilt. The Supreme Court was of the opinion that it could not be proved on mere probabilities. On the facts of that case, where the finding of guilt was based on hearsay evidence, the Supreme Court held that it was certainly not legal evidence to sustain a serious charge of corruption against an employee. As pointed out by a Division Bench of this Court in DEPOT MANAGER, ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION V/s. MOHD. ISMAIL[3], and reiterated thereafter by another Division Bench of this Court in DAVID WILSON K V/s. SECRETARY TO GOVERNMENT[4], the charges against the employee are required to be proved in the departmental enquiry by adducing substantive material evidence. The findings of guilt recorded against the petitioner on both the charges would therefore turn upon the evidence recorded in the enquiry, which was subjected to analysis and re-appreciation by the Labour Court. In so far as the first charge is concerned, though the passenger involved, T.Giri, said in his spot statement that he had tendered the ticket fare of Rs.3/- to the petitioner and was issued ticket No.628/920064 of Rs.6/-, he backtracked from the said version when examined in the enquiry. Before the Enquiry Officer, he unequivocally stated that he had not purchased a ticket but being afraid upon seeing the checking officials, he had taken a used ticket from the bus floor and given it to the TTI. He also stated that when he was asked for the ticket he falsely informed the TTI that the said ticket was issued by the Conductor after he paid him the ticket fare of Rs.3/-. This deposition stood unshaken. The TTI, N.H.Babu, during his cross-examination by the petitioner in the course of the enquiry also admitted that there was a chance that an alighting passenger may have thrown the Rs.6/- denomination ticket on the floor of the bus. He conceded that the used ticket was punched correctly showing its usage between stages 13- 10. He also admitted that the passenger, T.Giri, searched for the ticket in his pocket and delayed showing the same and while the TTIs were checking the tickets of other passengers, he showed the Rs.6/- denomination ticket. The Enquiry Officer dealing with this evidence opined at one stage that the clarification given by the TTI during his cross-examination supported the latter version of the passenger put forth during the enquiry. Having said so, the Enquiry Officer baldly acted upon the fact that the petitioner had attested the spot statement of the passenger, T.Giri, without protest and held that he had issued the used ticket of Rs.6/- denomination to the passenger. Relevant to note, the attestation of the petitioner in the passenger’s spot statement is only to the effect that it had been recorded in his presence. The petitioner did not admit the truth of the said statement. Further, the Enquiry Officer completely brushed aside the contrary evidence given by the passenger during the enquiry and did not refer to it at all while forming his conclusion. Surprisingly, the Labour Court while examining this evidence stated that the TTI, N.H.Babu, deposed that he recorded the statement of another passenger and the other passenger also said that Rs.6/- denomination ticket was issued to the passenger in question relating to the first charge. This evidence is not forthcoming from the deposition of N.H.Babu. It is inexplicable as to how the Labour Court concocted this piece of evidence. The Labour Court also did not deal with the contradiction in the statements put forth by the passenger in question, T.Giri. Without dealing with this crucial aspect the Labour Court summed up that the Enquiry Officer rightly came to the conclusion that the petitioner was guilty under the first charge. It was not open to the Enquiry Officer or the Labour Court to completely ignore the evidence of the passenger to suit their own convenience. In M.V.BIJLANI V/s. UNION OF INDIA[5], the Supreme Court observed that merely because the evidence was against the department, the Enquiry Officer could not opine that the same was false without at least subjecting such witnesses to cross-examination. In the present case, the statement of the passenger, T.Giri, stood unrebutted in the enquiry. Therefore, the Enquiry Officer and thereafter, the Labour Court were not correct in ignoring this evidence, which found support in the evidence of the TTI, and returning a finding of guilt against the petitioner on the first charge. In so far as the second charge is concerned, the position is much worse. The Enquiry Officer proceeded on the assumption that the seven passengers boarded the bus at Malkapur boarding stage. This is not borne out by the evidence on record. One of the said passengers, Md.Gouse, who was a signatory to the spot statement and was also examined during the course of the enquiry, specifically stated that they boarded the bus en route between stages, about one kilometer from Malkapur. This also found support in the statement of the passenger, T.Giri, who was examined in connection with the first charge. The passenger, Md.Gouse, also stated that as they did not have the requisite ticket fare in change, they tendered a hundred rupee note and that the petitioner was in the process of issuing them tickets when the check took place. These facts were also borne out by the evidence of the TTI during the enquiry. Ignoring this evidence, the Enquiry Officer proceeded as if the seven passengers boarded at Malkapur itself and paid the exact ticket fare of Rs.21/- but and in spite of the same the petitioner failed to issue them the tickets. In fact, the Enquiry Officer having extracted the statements of the passenger, Md.Gouse, and also N.H.Babu – the TTI, brushed aside all that was inconvenient to suit a finding of guilt. The finding of the Enquiry Officer that the latter version of Md.Gouse is varying with the spot statement regarding their boarding the bus is also not borne out. Stating that the petitioner should have collected the fare and issued tickets at the boarding place itself, the Enquiry Officer returned a positive finding on the second charge also. Dealing with this charge, the Labour Court opined that the petitioner had violated the rule of ‘issue and start’. Relevant to note, this was not one of the charges levelled against the petitioner under the charge sheet dated 14.12.2005. T h e Labour Court thereafter repeated the same blunder committed by the Enquiry Officer in picking and choosing evidence to support the charge while brushing aside crucial elements thereof, which established that the charge was not made out. As pointed out in M.V.BIJLANI, this was not a permissible course to be adopted in such proceedings. Thus, the findings against the petitioner on both charges rested on mere probabilities and in the light of the observations in GYAN CHAND CHATTAR, the same cannot be sustained. This was therefore a clear case of perverse findings, completely opposed to the material on record, being returned by the Enquiry Officer. Unfortunately, the Labour Court did not examine the matter in the correct perspective and in the light of the law laid down by the Courts. The NIL Award passed by the Labour Court is therefore unsustainable on facts and in law. As to the relief to be granted to the petitioner, it is to be noticed that the petitioner did not make an averment before the Labour Court that he was not gainfully employed during the period that he remained out of the service of the APSRTC. In the light of the law laid down by the Supreme Court in J.K.SYNTHETICS LIMITED V/s. K.P.AGRAWAL[6], the workman must at least aver on oath that he is not gainfully employed and only then the burden would shift to the employer. As the petitioner did not fulfill this requirement, he would not be entitled to back wages for the period that he remained out of service. It is however to be noted that the petitioner was a regular employee and had rendered considerably long service before his removal. The APSRTC shall therefore reinstate the petitioner in service forthwith with continuity of service and attendant benefits but without back wages and monetary benefits till the date of such reinstatement. The writ petition is allowed to the extent indicated above. No order as to costs. -------------------------- SANJAY KUMAR,J _____NOVEMBER, 2010 PGS (P.D.) THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.4024 OF 2008 _______NOVEMBER, 2010 [1] (2008) 5 SCC 554 [2] (2010) 1 SCC (L&S) 129 [3] 1996 (4) ALD 749 [4] 2001 (5) ALD 406 [5] (2006) 5 SCC 88 [6] (2007) 2 SCC 433