THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.5652 OF 2000 O R D E R Heard both the counsel. 2. The petitioner was appointed as Conductor in the Andhra Pradesh State Road Transport Corporation (for short ‘the Corporation’) on 16.3.1991 and his services were regularized on 1.1.1992. On 27.5.1994 on the route Pebbair to Gummadam, when the petitioner was conducting the bus, the checking oﬃcials at stage no.18 exercised a check and alleging certain irregularities, memo was issued. The petitioner submitted his explanation denying the said irregularities. After conducting the departmental enquiry, the petitioner was removed from service on 14.11.1994 by the 2nd respondent – Depot Manager, Wanaparthy Depot, Mahaboobnagar, on the ground that the charges leveled against him, with regard to ticket irregularities, were proved. The appeal and the further review ﬁled by the petitioner, were rejected by orders dated 23.5.1995 and 20.07.1995 respectively. Challenging the same, petitioner raised I.D.No.73/1999 on the ﬁle of Industrial Tribunal – I at Hyderabad and by order dated 27.12.1999, the I.D. was dismissed conﬁrming the order of removal passed by the Corporation. Aggrieved by the same, the petitioner ﬁled the present writ petition. 3. The charge against the petitioner are that he failed to collect the fare of Rs.1-25 ps from a passenger who boarded the bus at Gummadam and bound for Pebbaru, (2) having collected the fare of Rs.23/- at the rate of Re.1/- each from a batch of 23 passengers at boarding point itself without issuing tickets to them, (3) having closed the try numbers of all denominations in the S.R. up to stage no.18 and (4) failed to observe the rule ‘issue and start’. 4. The learned counsel appearing for the petitioner submitted that though the petitioner is not disputing the procedure in the enquiry, his case is that the enquiry oﬃcer recorded the ﬁndings, by not considering the evidence on record. He submitted that one of the passengers Beesanna referred to in the charge no.2 in the charge sheet, was examined and he categorically stated that they were not in a position to pay the fare for the children traveling along with them and they were made to alight from the bus and thereby they were walking and reach up to Gummadam Cross Roads and in the meanwhile the checking oﬃcials came in their jeep and took them to the bus and wrote the statement and obtained the thumb impression, without explaining its contents. The contention of the counsel for the petitioner is that the enquiry oﬃcer and the Tribunal have not considered this statement of the passenger. His further case is that the petitioner has not collected the cash from the said batch of 23 passengers and the checking oﬃcials also did not check the bus cash and therefore, the checking oﬃcials have indulged in dereliction of duty and for this, the petitioner cannot be made to suﬀer. He further submitted that the petitioner has submitted an explanation to the charge nos.1, 3 and 4 stating that as he indulged in argument with the marriage party and their chargeable children, failed to collect the fare and issue ticket to the passenger who boarded the bus at Gummadam Village and bound for Pebbair. The learned counsel for the petitioner submitted that by not considering these aspects, the Corporation has imposed the punishment of removal from service and the same is disproportionate to the charges proved and the Tribunal by not exercising its jurisdiction under Section 11-A of the Act, conﬁrmed the same. Therefore, he submitted that this court by exercising the jurisdiction under Section 11-A of the Act, may award appropriate lesser punishment. 5. On the other hand, the learned counsel appearing for the respondent – Corporation submitted that in the enquiry, which was conducted by following the principles of natural justice, the charges leveled against the petitioner, were proved and hence this court under Article 226 of the Constitution of India, cannot interfere with the same. He submitted that as per the charge no.2, the petitioner has admitted in his evidence before the enquiry oﬃcer that those 23 passengers have boarded the bus at Gummadam before starting the bus and they have alighted the bus. According to the petitioner, the 23 passengers alighted the bus after the bus passed one K.M. from Gummadam, but as per the checking oﬃcials, the 23 passengers alighted the bus at Gummadam ‘X’ roads and the headman of those 23 passengers in his spot statement, stated that they paid the requisite fare of Re.1/- per head to the conductor, but he did not issue tickets to them and the petitioner himself endorsed the said statement and that it was recorded in his presence. He further submitted that the petitioner closed the S.R. up to the stage of 18 and this shows that he has no intention to issue tickets to them and thus caused loss to the legitimate revenue to the Corporation. He further submitted that the petitioner did not collect fare and issue ticket to one passenger who boarded the bus at stage no.20 and bound for stage no.11 and further he violated the rule of ‘issue and start’. These facts were proved in the departmental enquiry and the same were rightly conﬁrmed by the Tribunal and hence cannot be interfered with by this court. With these averments, he sought to dismiss the writ petition. 6. Before proceeding further it is to be noticed that this court under Article 226 of the Constitution of India cannot sit as an appellate authority over the ﬁndings of the departmental enquiry and recorded its own ﬁndings. However, there cannot be any dispute that if the ﬁndings before the enquiry oﬃcer are based on no evidence or are perverse in nature, then this court deﬁnitely would interfere with the said ﬁnding, in exercise of its jurisdiction under the judicial review. Further it is also to be noticed that the Tribunal is vested with the jurisdiction to appreciate the evidence and record ﬁndings with cogent and convincing reasons and it cannot rely merely on the departmental enquiry and it shall invariably re-evaluate the evidence on record, and record its independent ﬁndings, considering the contentions of the parties. A learned single Judge of this court in the decision reported in P.F.KHAN E.406046 v. DEPOT MANAGER A.P.S.R.T.C[1] held as under: “5. In a writ petition ﬁled under Article 226 of the Constitution of India, this Court cannot sit as an appellate authority over an award passed by the Labour Court. It is well settled that the Labour Court is the ﬁnal authority, as regards appreciation of the facts in an industrial dispute, before it. Further, the power of the Labour Court in moulding the relief is almost absolute, and except where the award suﬀers from patent illegality or perversity, the High Court cannot interfere with it. 7. An independent and an unbiased adjudication to the matter would take place in such matters, only when they reach a Labour court. Earlier to that for all practical purposes, one of the parties to the dispute assumes the role of an adjudicator. Therefore, heavy burden rests upon the Labour court to examine the matter from all possible angles, to satisfy itself as to whether there existed proper material to sustain the punishment imposed against the workman. The evidence adduced, may be before the disciplinary authority, needs to be appreciated afresh, as though it was adduced before the Labour Court, for the ﬁrst time. Any lapse in this regard would have its own dent into the perfection of the adjudication by the Labour Court. Reproduction of charges or making observations with semantic changes, hardly would justify the role of a Labour Court. Oral evidence, be it on behalf of the petitioner or the 1st respondent was not adduced before the Labour court, obviously, because such a step was taken before the disciplinary authority. Failure on the part of the Labour Court to appreciate the evidence that already formed part of the record, would certainly render the adjudication before it, incomplete.” 7. From a reading of the impugned award, it could be seen that the Tribunal after noting the relevant contentions concluded at paragraph no.8 as under: “In these hard days when it is very diﬃcult to ﬁnd a job and if there is something in favour of the employee, the Tribunal or Labour Court, tend to lean in favour of the employee, but I have gone through the report of the Enquiry Oﬃcer Ex.M-12, which gives convincing reasons and the total number of passengers were 23 and even if there was dispute over some collection of fare for about 3 children, he ought to have collected Rs.23/- from the 23 passengers. It is not denied by the conducted that they did board the bus. So it is proved beyond any reasonable doubt that he has collected the fare from the passengers and not issued any tickets. Further once it is proved that he collected Rs.23/- and not issued the tickets, it amounts to misappropriation and I feel that as the passengers were also only 22 leaving the 23 passengers, it would not be proper on my part to interfere with the exercise of executive functions performed by the APSRTC and it is not proper case to interfere with under Section 11-A of the I.D. Act. The point is answered accordingly against the petitioner.” 8. From the above concluding paragraph of the Tribunal, it could be seen that no reasons are recorded for negativing the contentions of the petitioner and it has not met the contentions raised by the petitioner and it has merely accepted the ﬁndings of the enquiry officer. Therefore, I am of the view that the appreciation of evidence by the Tribunal is in a perfunctory manner and the same requires to be interfered with in exercise of the power under the juridical review. 9. The charges against the petitioner are as under: 1. For having ﬁled to collect the fare and issue ticket to a passenger found traveling without ticket who boarded the bus at Gummadam and bound for Pebbair ex-stages 20 to 11, which constitutes mis conduct under Reg.28(vi)(a) of A.P.S.R.T.C. Employees’ (Conduct) Regulations, 1963. 2. For having collected the fare of Rs.23/- @ Re.1/- from a batch of 23 passengers at boarding point itself and failed to issue tickets who boarded the bus at Gummadam village and found alighted without tickets at Gummadam X road ex-stages 20 to 19, which constitutes mis-conduct under Reg.28(vi)(a) of APSRTC Employees’ (Conduct) Regulations, 1963. 3. For having already closed the tray nos. of all denominations in the SR up to stage no.18, which constitutes mis- conduct under Reg.28(xxxii) of APSRTC Employees’ (Conduct) Regulations, 1963. 4. For having failed to observe the rule issue and start, which constitutes mis- conduct under Reg.28(xxxii) of APSRTC Employees’ (Conduct) Regulations, 1963. 10. First of all, it is necessary to examine the charge no.2, since the petitioner admits the other charges and comes with an explanation, which is connected with the charge no.2. 11. The petitioner was conducting the bus bearing no.AP9Z 6575 (Gramani) operating on the route Pebbair – Gummadam on 27.5.1994 and at about 15-45 hours, a check was conducted and certain alleged cash and ticket irregularities were detected. As per the charge no.2 the petitioner collected the requisite fare of Rs.23/- @ Re.1- 00 each from a batch of 23 passengers at boarding point itself i.e., Gummadam and failed to issue tickets to them, who alighted at Gummadam X road ex-stages 20 to 19. 12. The 23 passengers is a marriage party and they boarded the bus at Gummadam and they are bound to Pebbair Ex-stages. The case of the petitioner is that they were a batch of 30 passengers including the kids. They have boarded at Gummadam village before starting of the bus. He was in the act of issuing the tickets from back side of the bus and that he asked some of the passengers about their tickets, they informed that their head man will purchase tickets for them. The bus already passed one kilo meter and that when he asked the head of the passengers about their tickets, he argued with him regarding half tickets stating that as the fare for adult is Re.1/-, the half ticket would be only 0.50 ps. The further case of the petitioner is that he stated that the minimum fare in the Grami bus is Re.1/- and in this argument, they refused to give the fare according to the fare chart and he asked them to get down and accordingly they got down. Therefore, the case of the petitioner is that though they boarded the bus, as they did not pay the fare as per the fare chart, he got them alighted. 13. The head of the said passengers by name M.Beesanna s/o Karrenna R/o Gummadam village, gave spot statement to the eﬀect that they were 23 passengers and they boarded the bus at Gummadam village and alighted at Gumamdam x Road; that they paid Rs.50/- note to the conductor for their charges at boarding point itself, but the conductor took each Re.1/- in total for 23 and returned Rs.27/- and not given tickets; that the checking oﬃcials came after they alighted and the bus started towards Pebbair; that the TTIs asked about their tickets; that immediately the TTIs took him to Ayyawaripally and stopped the bus and a check was exercised and that though they demanded to give the tickets, but the conductor did not issue the tickets. 14. But when the said Beesanna was examined in the regular enquiry, stated that he boarded the bus along with 25 members at Gummadam village; that there were small kids including the batch; that the conductor asked the tickets @ Re.1/- each for their travel, for that, he requested the conductor about children’s fare stating i.e. ﬁfty paise, for that the conductor made them to alight and that they reached the X road by walk. After 20 minutes the TTIs came in a jeep and took them to the bus at Ayyavaripally; that one of the passengers recorded the statement; that what the said passenger wrote, he did not know. 15. From the above, there is contradiction between the statements given by the headman of the passengers Beesanna before the TTIs and before the enquiry oﬃcer. The version of the petitioner before the TTIs in the spot explanation is that the passengers boarded the bus and did not pay the amount and even in the enquiry, he stated that they did not pay the fare as per the fare chart and he got them alighted. It is also to be noticed that the TTIs spotted the 23 passengers after they alighted the bus. It is to be further noticed that when the version of the headman of the 23 passengers in the spot statement is that they paid the amount and that the conductor did not issue the tickets; and on the contrary when the version of the conductor is that they did not pay any amount, the TTIs ought to have checked the bus cash with the conductor and this would have conﬁrmed either of the statements. The TTIs have not checked the cash and there is contradiction between the statements of the headman made at the spot and in the departmental enquiry. It is also to be noticed that the 23 passengers boarded the bus at Gummadam and they are bound from Gummadam x Road ie., stages 20 to 19. This shows, that the distance they have to travel is also very short. The passenger, who recorded the statement of the head of the passengers at the spot, deposed before the enquiry oﬃcer that that he traveled in the bus from Gummadam to Pebbair; that the checking oﬃcials came to Ayyawaripally in a jeep along with the said ticketless passenger and; that the checking oﬃcials requested him to record the statement as per their version. Therefore, having regard to the above facts and circumstances and also considering the fact that the non-checking of the bus cash in order to conﬁrm the allegation made against the petitioner, would probablises the case of the petitioner that he did not collect the fare and issue tickets and he got them alighted and further as stated above, the passengers were spotted by the TTIs after they alighted the bus and the bus left towards Ayyavaripalli. 16. From a perusal of the enquiry report and also the impugned award, the above contention of the petitioner was not considered and the enquiry oﬃcer proceeded only on the statement of the TTIs and he eschewed the explanation of the petitioner and also the evidence given by the head man of the passengers and also the evidence given by the passenger who recorded the statement of the headman at the spot and failed to take into consideration the fact that the bus cash was not checked and he also failed to analyze the circumstances based on the evidence on record. It is well settled that ‘innocent are not punished’ applies not only to criminal proceedings, but also to domestic enquiries (see UNION OF INDIA v. H.C.GOEL[2]) 17. Therefore, having regard to the facts and circumstances and the above evidence available on record, it can held that the charge no.2 against the petitioner is not proved and in exercise of the power under judicial review, the said charge is accordingly set aside. 18. With regard to charge nos.1,3 and 4 the same are proved and the explanation oﬀered by the petitioner to charge no.1 is that he was indulged in argument with the marriage party and thus failed to issue ticket and collect fare. Therefore, the petitioner has admitted this charge, but the explanation oﬀered by him, having regard to the facts and circumstances, can be taken as an extenuating circumstance, while imposing the punishment. 19. Therefore, in view of the above reasons, I am of the view that the punishment imposed by the Corporation and which has been conﬁrmed by the Tribunal, is not proportionate to the misconduct proved and the same requires to be interfered with, by exercising the discretionary jurisdiction under Section 11-A of the Industrial Disputes Act. 20. Having regard to the facts and circumstances, as the charge nos.1, 3 and 4 are proved against the petitioner and also considering the extenuating circumstances, and in exercise of the jurisdiction under Section 11-A of the Industrial Disputes Act, the punishment of removal from service is modiﬁed to that of reinstatement into service without back wages and with continuity of service and the petitioner is further imposed punishment of stoppage of two increments with cumulative effect. 21. The writ petition is accordingly disposed of. No costs. AVS -------------------------------------- 22—09—2008 [1] 2008(3) ALT 234 [2] AIR 1964 SC 364