THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 20676 OF 1998 Date: 06.02.2008 Between: The Depot Manager, A.P.S.R.T.C., Adilabad. … Petitioner and K. Govardhan, E. 303103, Ex. Conductor and another. … Respondents. THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 20676 OF 1998 ORDER: Aggrieved by the award of the Industrial Tribunal-cum-Labour Court, Godavarikhani, in I.D. No. 68 of 1994 dated 22.01.1997, the present writ petition is filed by the A.P.S.R.T.C. The first respondent herein, a Conductor with the A.P.S.R.T.C, was issued charge memo dated 05.03.1993 containing three charges which read as under: 1. for having violated the rule ‘Issue and start’. 2. for having failed to issue tickets to 23 (twenty three) passengers even after collecting the requisite fare of Rs.1.50 ps from each passengers at boarding point itself who boarded the bus at Ichoda stage No. 8 and alighting at crushing Machine, near Ichoda stage No. 8/7. 3. for having closed the SR upto stage No. 7 without completing the tickets issues. The first respondent was placed under suspension on 05.03.1993, an enquiry was held and the enquiry officer submitted his report holding him guilty of both charges 1 and 2. Thereafter the disciplinary authority issued show cause notice dated 13.09.1993 and, on receipt of the first respondent’s explanation thereto, passed an order dated 23.09.1993 imposing on the first respondent the punishment of removal from service. The appeal preferred there against by the first respondent was rejected by order dated 03.02.1994. Aggrieved thereby the first respondent invoked the jurisdiction of the Industrial Tribunal-cum- Labour Court, Godavarikhani under Section 2-A(2) of the Industrial Disputes Act. Before the Industrial Tribunal-cum-Labour Court, no evidence was adduced on behalf of the first respondent-workman either oral or documentary. On behalf of the petitioner, no oral evidence was adduced. However, Exs.M-1 to M-3 were marked as exhibits. Ex.M-1 is the enquiry report dated 23.07.1993. Ex.M-2 is the order of the disciplinary authority dated 23.09.1993 imposing on the first respondent- workman the punishment of removal from service and Ex.M-3 is the proceedings of the Appellate Authority dated 03.02.1994 rejecting the appeal. While exercising jurisdiction under Section 11-A of the Industrial Disputes Act, to re-appreciate the evidence on record, the Industrial Tribunal-cum-Labour Court held that the enquiry officer had not properly considered the evidence of Sri D. Rajanna, a passenger in the bus who was examined as a witness in the departmental enquiry and had failed to consider the consequences of the failure of the checking officials in not counting the bus cash. It noted that Sri D. Rajanna, had deposed that the passengers were in a drunken condition, they had tried to beat the conductor, they had neither tendered the ticket amount nor had they taken the tickets, that while he had tried to pacify the passengers they did not heed his words and that he had produced the tickets purchased by him before the checking officials. It also took note of the admission of Sri Y.V.B. Reddy, Deputy Superintendent (Traffic), who had the conducted check along with another, that the passengers were in a drunken condition and that he had not checked the bus cash as the bus had been stopped at an isolated place. The Labour Court held that the eye witness to the incident had categorically stated that the passengers mentioned in charge No. 2 had not paid the bus fare, that non- examination of the passengers, who had stated before the T.T.Is that they had tendered the fare, was fatal to the version of the management and that it was for the management to establish that though the passengers had paid the fare to the Conductor he had failed to issue the tickets. The Industrial Tribunal-cum-Labour Court further held that, not only were the passengers not examined, but also that the T.T.Is, who had conducted the check, had no personal knowledge of what transpired within the bus, and that the passenger witness Sri D. Rajanna had categorically stated that the passengers had not paid the bus fare to the Conductor. The Labour Court further observed that had the bus cash been checked the mist would have cleared and that failure to verify the bus cash coupled with non-examination of the passengers who had stated that they had paid the bus fare would necessitate the conclusion that charge No.2 was not proved. While holding that charge No.1 was proved, the Labour Court noted that charge No.3 was dropped in the enquiry itself. On the proportionality of punishment, the Industrial Tribunal-cum-Labour Court held that only the charge of failure to abide by the rule of issue and start had been established and imposition of the punishment of removal from service for this minor charge was certainly excessive, not commensurate with the gravity of the charge held established, and instead the penalty of censure would meet the ends of justice. While directing the petitioner herein to reinstate the first respondent with continuity of service and attendant benefits only in respect of increments and in direceting that the penalty of censure be imposed, the Industrial Tribunal-cum-Labour Court held that the first respondent was entitled to half the back wages as he had a large family and was unable to secure alternative employment. Smt. P. Rajani Reddy, learned Standing Counsel for the A.P.S.R.T.C, would submit that the degree of proof required in departmental enquiry is preponderance of probabilities and not proof beyond reasonable doubt, that in a departmental enquiry evidence, which is reasonably capable of establishing the charge, would suffice and that failure to examine the passengers who had tendered the fare, as witnesses would not vitiate the enquiry proceedings. Learned Counsel would refer to the statement of passengers, recorded at the time of check, that they had tendered the fare of Rs.1.50ps despite which the first respondent-conductor had not issued the tickets. Learned Counsel would contend that failure on the part of the Industrial Tribunal-cum-Labour Court, in considering this material evidence on record, would constitute an error of law apparent on the face of the record necessitating interference in certiorari proceedings under Article 226 of the Constitution of India. Learned Counsel would further contend that, even with regards charge No.1 for failure to abide by the rules of issue and start the punishment of censure was extremely lenient and that the Labour Court ought to have imposed a more stringent penalty on the first respondent-workman. Sri K. Balagopal, learned Counsel appearing on behalf of the first respondent-workman, on the other hand, would place emphasis on the fact that the passenger, examined in the departmental enquiry, had categorically deposed that all the passengers were in a drunken state, that they were arguing with the conductor on the fare to be paid, that, while the first respondent-conductor had demanded payment of Rs.1.50ps per ticket, they were willing to pay only Rs.1/- and when this argument was in progress the check was conducted. Learned Counsel would contend that failure on the part of the checking officials to verify the bus cash was fatal and that it is only if excess cash was found with the conductor, can he be held guilty of collecting the fare without issuing tickets. Learned Counsel would submit that passengers, who have not purchased tickets, would invariably claim to have paid the fare and their self-serving statement to the contrary cannot be relied upon. Learned Counsel would submit that the very fact that the statement of passengers in the bus had been recorded by the checking officer would itself belie his contention that he had failed to check the bus cash only because the place at which the check was conducted was dark. According to the Learned Counsel, not only had the first respondent- workman imposed the punishment of censure but he had also been denied half the back wages as a measure of punishment and, for the charge held established of failure to abide by the rule of issue and start, the punishment, as substituted by the Labour Court for the one imposed by the Employer, was commensurate. It is well settled that Section 11-A of the Industrial Disputes Act confers power on Industrial Tribunals/Labour Court not only to re- appreciate the evidence on record but also to substitute the penalty imposed by the employer with another. While exercising jurisdiction under Section 11-A, and in re-appreciating the evidence, the Labour Court should record its conclusions taking into consideration the entire material evidence on record. Failure on the part of the Labour Court, to take into consideration relevant evidence, would be an error apparent on the face of the record justifying interference in certiorari proceedings under Article 226 of the Constitution of India. The High Court, while exercising jurisdiction under Article 226 of the Constitution of India, would not sit in appeal over findings of fact recorded by the Labour Court/Industrial Tribunal and would not substitute its views for that of the Labour Court, since the jurisdiction which its exercises is supervisory and not appellate. The only question which necessitates examination, therefore, is whether the Labour Court has failed to take into consideration relevant material in arriving at its conclusions that charge No. 2, levelled against the first respondent-workman, has not been established. Even “hearsay evidence” is permissible in departmental enquiries and failure to examine the passengers in the bus as witnesses in the departmental enquiry would not, by itself, vitiate the departmental enquiry proceedings. (State of Haryana Vs. Rattan Singh[1]). While taking into consideration the deposition of Sri D. Rajanna, a passenger of the bus who was examined as a witness in the departmental enquiry, as also the admission of the checking officer that he did not verify the cash in the conductor’s bag, the Labour Court has failed to take into consideration the passengers’ statement recorded by the checking officials at the time of the check. This Statement, if accepted, shows that the first respondent-workman had collected the fare of Rs.1.50 ps from each of the passengers and had not issued tickets. The said statement has been verified by the first respondent-conductor himself. While this statement is undoubtedly a relevant piece of evidence, the weight to be attached thereto is again a matter for the Labour Court to consider. I consider it appropriate, therefore, to set aside the award passed by the Labour Court and direct it to consider the entire material on record, including the spot explanation of the passengers in the bus at the time of check, and thereafter record his conclusions afresh on the question whether charge No. 2 has been established or not. It is only after the evidence on record has been re-appreciated would the Labour Court be required to examine the question whether or not the punishment imposed by the petitioner on the first respondent-workman, is commensurate to the charge/ charges held established. Since the dispute relates to the year 1994, and nearly 14 years has been elapsed since then, it is but appropriate that the Industrial Tribunal-cum-Labour Court considers the matter afresh as expeditiously as possible, in any event not later than four months from the date of receipt of a copy of the order. The apprehension expressed by Sri K. Balagopal, learned Counsel for the first respondent-workman, that, on the award being set aside, the petitioner may well terminate the services of the first respondent- workman cannot be said to be without justification. Smt. P. Rajani Reddy, learned Standing Counsel for the Corporation, fairly states that the first respondent was reinstated into service on 12.06.1997 subject to the result of the writ petition. Since the first respondent-workman has been working with the APSRTC for the past more than a decade, ends of justice would be met if the petitioner herein were directed to continue him in service pending reconsideration of the matter by the Industrial Tribunal-cum-Labour Court. The writ petition is disposed of accordingly. However, in the circumstances, without costs. ____________________________ Date: 06.02.2008 RAMESH RANGANATHAN, J MRKR [1] AIR 1977 SC 1512