THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.4691 OF 2003 O R D E R Heard both the counsel. 2. Aggrieved by the award dated 6.2.2001 passed by the Industrial Tribunal-II, Hyderabad in I.D.No.124/2000 in confirming the order of removal passed by the Andhra Pradesh State Road Transport Corporation against the petitioner who was working as Conductor, the present writ petition is filed. 3. The brief facts of the case are that the petitioner was appointed as conductor in the respondent – Corporation in the year 1991. On 26.7.1995 on the route Tandur to Karnakota, when the petitioner was performing the duty, the checking officials at stage no.2/3 conducted a check at 17-45 hours. During the check, it was detected by the checking officials that the petitioner has collected the requisite fare at the rate of Rs.3-50 ps. each from 12 passengers for their journey from stages 1 to 5 and issued tickets, which were already issued in previous trips. From the statistical return it was established that the petitioner had re-issued 12 tickets of Rs.3-50 paise to passengers traveling in up-journey though the sale of these tickets were accounted as sold in down journey in previous trip. Even the punch marks on the face of the tickets reveals that the tickets issued to the passengers were having punch marks against stages 5 and 1. Therefore, alleging that the petitioner had mala fidy intention to defraud the revenue of the Corporation by re-issuing 12 tickets, charge sheet was issued on 26.7.1995 and he was suspended from service vide proceedings dated 26.7.1995. After conducting of the enquiry, the enquiry officer submitted his report on 16.2.1996. The petitioner was issued show cause notice dated 22.2.1996 and by order dated 10.4.1996 the petitioner was removed from service. The appeal filed by the petitioner was rejected by the Deputy Chief Traffic Manager-II, Rangareddy Region by order dated 23.10.1996 and the review filed to the Regional Manager, Rangareddy Region also met the same fate by order dated 16.7.1997. Aggrieved by the order of removal, the petitioner raised an industrial dispute in I.D.No.124/2000 and by award dated 6.2.2001 the action taken by the disciplinary authority of the Corporation was confirmed. Challenging the same, the present writ petition is filed. 4. The charge against the petitioner is as under: “For having (12) individual passengers found traveling with ticket numbers 547/660133, 134, 135, 136, and 660157, 66058, 660161, 162 and 660166 to 167, 168 & 169 of Rs.3-50 denomination, the above tickets which are already taken in accounted in previous trips. The above passengers boarded the bus at Tandur and bound to Karnakota ex-stages nos.1 to 5, you have collected the requisite fare from each Rs.3-50 at boarding point.” 5. The case of the petitioner in the affidavit filed in support of the writ petition is that there was heavy rush of 59 passengers at the time of check and the 12 passengers traveled in the previous trip and produced the same tickets during the time of check. The petitioner had no intention to defraud the revenue of the corporation and the Tribunal by not considering this aspect and also by not examining that the punishment imposed is shocking disproportionate, rejected the case of the petitioner. The further case of the petitioner is that the enquiry was conducted in violation of the principles of natural justice. With these averments, the award of the Tribunal was sought to be set aside. 6. The Corporation filed counter and while reiterating the allegations in the charge sheet and stated inter alia that a detailed enquiry was conducted and the petitioner failed to submit his explanation to the charge sheet and also failed to attend the enquiry to offer his explanation and, therefore, considering the material on record, the petitioner was removed from service and the appeal and review were also dismissed and the Tribunal by re-appreciating the entire evidence, confirmed the impugned action of the Corporation and the same does not warrant any interference. Accordingly the Corporation sought to dismiss the writ petition. 7. From the above, the allegation against the petitioner is that on 26.7.1995 on route Tandur to Karankote a check was exercised and it was found by the checking officials that he collected the requisite fare of Rs.3.50 ps each from 12 passengers for their journey from stages 1 to 5 and issued tickets which were already issued in the previous trip. The spot explanation of the petitioner was recorded and after framing charges, an enquiry was conducted and the enquiry officer submitted his report dated 16.2.1996 and by order dated 22.2.1996, the petitioner was issued the show cause notice for removal from service and by proceedings dated 10.4.1996 the petitioner was removed from service. 8. A perusal of the contents in the show cause notice dated 22.2.1996 and the final order of removal dated 10.4.1996 shows that they are in verbatim and there is no material to show that respondent – Depot manager has applied his mind independently considering the material on record. This, in my considered view, is violation of the principles of natural justice. 9. Further from a perusal of the impugned award it could be seen that the Tribunal below has not framed any issuing with regard to the validity of the enquiry. No doubt, the counsel for the petitioner before the court below has conceded that no irregularity has been committed by the enquiry officer in conducting the enquiry, but that does mean that he is not disputing the validity of the enquiry and the findings thereof and the specific case of the petitioner is that enquiry was conducted in violation of the principles of natural justice. The Apex court in the decision reported in COOPER ENGINEERING LTD. v. P.P. MUNDHE[1]. held as under: “22. We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the Labour Court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer there will be no difficulty. But when the matter is in controversy between the parties the question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the Labour court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceedings to raise the issue. . . . . . 10. In the present case, the petitioner has specifically raised the ground that the enquiry was conducted in violation of the principles of natural justice. But the court below has not framed any issue with regard to the validity of the domestic enquiry. 11. It is well settled that punishment imposed shall be proportionate to the gravity of the misconduct. Under Section 11-A of the Industrial Disputes Act, the Tribunal has jurisdiction to modify the punishment imposed by the Corporation, considering the facts and circumstances and the past conduct and the length of service of the petitioner and the dependants on the petitioner. From the impugned order, no sound reasons are found, for not exercising the jurisdiction under Section 11-A of the Act. 12. For the foregoing reasons, I am of the view that the impugned order is liable to be set aside and the matter needs to be remitted back for fresh disposal in accordance with law. 13. Accordingly the impugned award is set aside and the writ petition is disposed of remitting the matter to the Tribunal below for disposal afresh in accordance with law, within a period of two months from the date of receipt of a copy of this order. 14. In the circumstances of the case, there shall be no order as to costs. AVS ------------------------------------ 16—10—2008 [1] AIR 1975 S.C. 1900