THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.9575 of 2007 ORDER This writ petition is filed seeking to quash the Award dated 6-11-2006 passed in I.D.No.36 of 2003 by the 1st respondent. The brief facts of the case are that the petitioner joined in the respondent-Andhra Pradesh State Road Transport Corporation as a Driver in 1989. While so, alleging misconduct against the petitioner, respondent- Corporation issued a charge sheet. After conducting enquiry, the petitioner was held guilty of the charge. Basing on the enquiry report, the 2nd respondent passed the removal order. Against which, the petitioner filed I.D.NO.36 of 2003 under Section 2-A (2) of the Industrial Disputes Act, 1947 (for short ‘the Act’). The Labour Court modified the removal order passed by the respondent authorities to that of compulsory retirement from service. Aggrieved by the same, the present writ petition has been preferred by the petitioner. Learned counsel for the petitioner submits that under Regulation 6 of Classification, Control and Appeal Regulations, 1967 of the Corporation, it does not contemplate the punishment of compulsory retirement. He further submits that the order of the Labour Court is perverse and the Labour Court has not given any categorical finding that the charge leveled against the petitioner was proved and in the absence of such finding, modification of punishment to compulsory retirement is not warranted. He further submits that the Labour Court has committed an error in holding that the charge leveled against the petitioner was proved by merely accepting the domestic enquiry held by the respondent-Corporation. He also submits that neither the petitioner was subjected to any test to prove that he was in intoxication condition nor he was examined by any doctor, in the absence of which, there is no scope to come to the conclusion that the petitioner was in intoxication condition at the relevant point of time ignoring the assertion of the petitioner that he never consumed liquor at any point of time. In support of his contention, he placed reliance on the Division Bench Judgment of this Court reported in P.Rajanna v., Labour Court, Godavarikhani and another[1] . Learned Standing Counsel appearing on behalf of the respondent-Corporation contends that the award passed by the Labour Court was based on evidence on record and under Section 11-A of the Act, the Labour Court has got power to confirm or modify or impose any penalty in the interest of justice. He further submits that the order passed by the Labour Court is justified, as it does not suffer from any illegality or infirmity. He also submits that since it is not the case of the petitioner that at any point of time and at any level, he was not given any opportunity nor there was any failure on the part of the respondent-Corporation in following the procedure in conducting the enquiry or following the principles of natural justice and that the petitioner failed to make any case before the Labour Court. He also submits that the Labour Court has considered the merits of the case and came to the conclusion that the punishment imposed on the petitioner was not justifiable and not in proportionate to the charge leveled against the petitioner, and modified the order of removal to that of the compulsory retirement. For the purpose of considering this case, it is required to be considered as to whether the finding of the mis-conduct recorded by the Enquiry Officer and accepted by the Disciplinary Authority is vitiated on account of want of substantive material evidence and whether the penalty of removal from service in the facts and circumstances of the case is disproportionate to the gravity or mis-conduct committed by the petitioner. The facts are not in dispute. The petitioner was a Driver. He joined in the respondent-Corporation in the year 1989. While so, he was issued with a charge sheet dated 15-3-2001, which reads as hereunder: “For having intoxicated condition entered to the Bus Station (control point) Badvel to perform your duty to Hyderabad on 20-2-2001 misbehaved with on duty TI-II and also torn the control charge into number of pieces, caused inconvenience to the traveling public and traffic personnel by booking another driver in your place and tarnished the image of the Corporation in the eyes of the public, which constitutes misconduct under Regulation 28(ix.a), (xviii), (xxxi) and (xxxii) of APSRTC Employees (conduct) Reg.1963”. After conducting domestic enquiry, the petitioner was removed from service on 11-12-2001. Aggrieved by the same, he filed an appeal before the appellate authority. The said appeal was rejected on 29-6-2002. Further, the petitioner preferred review before the Reviewing Authority and the same was also rejected by order dated 28-12-2001. Questioning the same, the petitioner raised I.D.No.36 of 2003 under Section 2-A (2) of the Act. The Labour Court modified the punishment of removal of the petitioner from service to that of compulsory retirement. The main allegation against the petitioner was that on 20-2-2001 he entered into the Bus Station at Badvel at 2-50 p.m in intoxication condition misbehaved with TI-II, who was on duty and also torn the control chart into number of pieces and caused inconvenience to the traveling public and tarnished the image of the Corporation. The said allegation was disputed by the petitioner. The order impugned goes to show that the Labour Court did not give any finding as to whether the charge leveled against the petitioner was proved or not. None were examined on behalf of either of the parties. Exs.M1 to M24 were marked on behalf of the respondent- Corporation. The petitioner in his statement Ex.M9 stated that the Traffic Inspector-II became angry with him and abused and also torn off the duty chart in the garage itself and thrown away the pieces. The Labour Court discussed the matter at length at paragraphs 8 to 12. On a perusal of the above paragraphs, it is clear that there was nothing on record to show that the petitioner was in intoxication condition or he was subjected to any test by the Doctor. In the absence of any such evidence, it cannot be presumed that the petitioner was in intoxication condition at the relevant point of time. Therefore, the Labour Court having held that the order of removal is not in proportionate to the charge leveled against the petitioner, modified the punishment of removal from service to that of compulsory retirement. In similar circumstances, this Court while dealing with matter referred to supra, directed reinstatement of the petitioner therein into service as Driver with continuity of service, but without any back wages and that the continuity of service would count only for computation of pension and pensionary fringe benefits and for no other purpose. In the instant case, a perusal of the documentary evidence recorded during the course of domestic enquiry reveals that there was no evidence that the petitioner was under intoxication condition. The Labour Court observed that copy of enquiry report - Ex.M19 was not served on the petitioner calling for his explanation. The total exercise done by the respondent- Corporation during the course of enquiry was not proper and the same had not been considered by the Labour Court and there are some laches on the part of the respondent-Corporation. The Labour Court can exercise its powers vested under Section 11-A of the Act either to allow the claim of the petitioner or order re-instatement. In the instant case, consumption of liquor by the petitioner was not proved and he was not subjected to any test or he was not examined by the Doctor. In that view of the matter, this Court is of the view that the award passed by the Labour Court is perverse and the same is liable to be set aside. In the result, the writ petition is allowed and the respondent-Corporation is directed to re-instate the petitioner into service as a Driver with continuity of service but without back wages and that the continuity of service would count only for computation of pension and pensionary fringe benefits and for no other purpose. No costs. __________________ G.CHANDRAIAH,J rkk Dated: 20-07-2011 [1] 2002(2) ALC 64 (DB)