IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTEENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT HON'BLE MR JUSTICE R.SUBHASH REDDY WRIT PETITION No.5789 of 2000 Between: A.P.S.R.T.C., rep. by its Depot Manager, Warangal. II Depot ... PETITIONER AND T. Narayana E.305704, C/o. P. Surender Kumar, Advocate Padmakshi Colony, Hanamkonda, Warangal District. ...RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ, order or direction especially in the nature of certiorari calling for the records in ID.No.235/95, Dt.07/12/99 and quash the same as it is invalid, ultra vires and illegal Counsel for the Petitioner: Smt. P. Rajani Reddy (SC FOR APSRTC) Counsel for the Respondent: Mr. A.K. Jayaprakash Rao The Court made the following Order: This writ petition is filed by A.P. State Road Transport Corporation, represented by the Depot Manager, Warangal II Depot, Warangal District, aggrieved by the award dated 07-12-1999 passed by the Industrial Tribunal-cum-Labour Court, Warangal in I.D.No.235 of 1995. 2. The first respondent herein was appointed as conductor in APSRTC on 25-02-1987. On 06-10-1991, while he was on duty, conducting the bus on the route Mulug, checking officials inspected the bus at stage No.22, i.e. Pandikunta, and noticed certain cash and ticket irregularities. With reference to the same, disciplinary proceedings were initiated against the first respondent and charge sheet was issued to him with the following charges: “1. For having failed to observe the rule ‘Issue and Start’ 2. For having failed to issue tickets to six passengers having boarded the bus at Mallampally and alighting at Pandikunta, ex.stages 10 to 11, despite collecting the requisite fare at their boarding place itself. 3. For having failed to issue ticket to one more passenger having boarded the bus at Mallampally and alighting at Pandikunta, ex.stages 10 to 11, despite collecting the requisite fare at the outskirts of Mallampalli village. 4. For having failed to collect the fare and issue tickets to three passengers (individuals) who boarded the bus at Mallampalli stage No.10 and traveling upto Mulug Stage No.13.” 3. In view of denial of the said charges by the first respondent, a regular enquiry was conducted by appointing an enquiry officer. The enquiry officer, during the course of enquiry, found that the charges framed against the first respondent are proved. Based on the findings recorded by the enquiry officer, the disciplinary authority, after issuing show cause notice and following the procedure as contemplated under Employees (Classification, Control and Appeal) Regulations, 1967 framed under Section 45(1) of the Road Transport Corporations Act, 1950, passed order dated 28-04-1992 removing the first respondent from service. Questioning the said order, the first respondent filed an application under Section 2(A) 2 of the Industrial Disputes Act, 1947 by way of an industrial dispute in I.D.No.235 of 1995 before the Industrial Tribunal-cum-Labour Court, Warangal. The Tribunal, by the impugned order, by recording a finding that the charges framed against the first respondent will amount to irregularity not amounting to misconduct within the meaning of the APSRTC Employees’ (Conduct) Regulations 1963, ordered reinstatement of the first respondent into service with back wages and continuity of service. It was further ordered that two increments of the first respondent, after reinstatement, shall be postponed without cumulative effect. 4. Heard Smt. P. Rajani Reddy, learned Standing Counsel for the petitioner-corporation and Sri A.K. Jayaprakash Rao, learned counsel appearing for the first respondent. 5. It is contended by the learned Standing Counsel appearing for APSRTC that though the charges framed against the first respondent are serious and are proved in the enquiry conducted, in spite of the same, without recording valid reasons, the Tribunal has recorded a finding that they will not amount to misconduct. It is submitted that as much as the first respondent has collected the fare for about 9 tickets, covered by charges 2 and 3, and failed to issue tickets, the same will amount to misconduct. It is further submitted that the findings recorded by the Tribunal are perverse and contrary to the evidence on record. 6. On the other hand, it is contended by the learned counsel for the first respondent that as much as the statement of passengers which was recorded during the enquiry proceedings is not properly appreciated by the enquiry officer, the Tribunal, by re-appreciating the same has found that there was no misconduct on the part of the first respondent. It is submitted that there are no grounds to interfere with the award of the Tribunal in this petition filed under Article 226 of the Constitution of India. 7. With reference to the aforesaid submissions, it is to be noticed that on a perusal of the charges framed against the first respondent it is clear that on the date of check the officials have noticed that altogether ten passengers were traveling without ticket. There is a specific charge that out of ten passengers the first respondent has collected fare but failed to issue tickets to seven of them. The said charge is proved in the enquiry. The statements of passengers were recorded during the course of enquiry and they have deposed that they have paid the requisite fare to the first respondent at the time of boarding the bus. The said statements were signed by the first respondent and also by the checking officials. But the Tribunal, only on the ground that the passengers who were examined during the course of enquiry, have stated that they have not paid the fare to the first respondent, has taken it as a gospel truth and recorded a finding that the said statements were not correctly appreciated. However, fact remains that the enquiry officer has appreciated the total evidence on record and recorded the statements of the passengers at the time of inspection and also recorded their depositions during the course of enquiry. Merely on the ground that the said depositions were not correctly appreciated, the Tribunal has interfered with the findings of the enquiry officer. The statements recorded at the time of check will have true reflection of facts as there will be no time to tamper with the same. Ignoring such statements, there is no reason to give much weightage to only the oral evidence which is recorded after much delay, i.e. during the course of enquiry. On account of such delay, there is every possibility of tampering with the witnesses by the delinquent employee. In such an event, the Tribunal ought not to have relied totally on the depositions during the conduct of enquiry, ignoring the other material on record. When the enquiry officer has recorded his conclusion based on the total material available on record, this court is of the view that that the Tribunal erred in interfering with the findings in the enquiry in exercise of the power of re-appreciation of evidence. The findings of the Tribunal that the charges will amount to only irregularity but not misconduct, within the meaning of the Regulations, are not only perverse and contrary to the evidence and other material on record but also purely based on assumptions and presumptions. At the same time, it is to be noted that the Tribunal has passed the award as early as on 07-12-1999 and the writ petition was filed in the year 2000 and as no stay of reinstatement was granted by this court, the first respondent was taken into service in the year 2000. This writ petition has been pending before this court for more than nine years and the first respondent has also put in about nine years of service after his reinstatement. Taking the same into account, this court is of the view that interests of justice would be met by modifying the award of the Tribunal to the following effect. 8. Award of back wages by the Tribunal to the first respondent is set aside. The reinstatement of the first respondent into service as ordered by the Tribunal is confirmed and benefit of continuity of service shall be extended only for the purpose of calculating the retiral benefits of the first respondent. At the same time, punishment of stoppage of two increments without cumulative effect, as imposed by the Tribunal, is also confirmed. 9. The writ petition is allowed in part to the extent indicated above. No order as to costs. _____________________ R. SUBHASH REDDY, J. February 16, 2009 MRR