IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRD DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.15676 of 2001 BETWEEN The Depot Manager, APSRTC, Khammam. ... PETITIONER AND G. Gandhi and another. ...RESPONDENTS Counsel for the Petitioner: MR. SRIDHAR RAO POTTIGARI Counsel for the Respondents: GP FOR LABOUR FOR R2 The Court made the following: ORDER: The first respondent herein, who was working as a conductor in APSRTC, was found to have committed ticketing irregularities when the bus conducted by him bearing No. AP 9 Z 8972 was checked on 22.11.1996 while on the route Jaipur to Bhadrachalam. On the basis of the check report, a charge sheet dated 30.11.1996 was served on him with the following charges: 1. For having violated the rule ‘Issue and start’ which constitutes misconduct under Reg. 28 (xxxii) of APSRTC Employees (Conduct) Reg. 1963. 2. For having already collected the requisite fare of Rs.33/- at boarding point from a batch of 3 passengers, who boarded the bus at Kuguma and found alighting at Launchghat ex.stages 15 to 13, but failed to issue the tickets to them, hence obtained TPT vide ticket Nos.026/651988 to 990 of Rs.10/- deno., E.3 and 208/562693 to 695 of Rs.1.00 deno., E.3 which constitutes misconduct under Reg. 28(vi)(a) of APSRTC Employees (Conduct) Reg. 1963. 3. For having already collected the requisite fare of Rs.6/- from each four individual passengers at boarding point, who boarded bus at Barimala and found alighting at Launchghat ex.stages 14 to 13, but failed to issue the tickets to them, hence obtained TPT vide ticket Nos.177/765657 to 660 of Rs.6.00 deno., E.4 which constitutes misconduct under Reg. 28(vi)(a) of APSRTC Employees (Conduct) Reg. 1963. 4. For having already closed the tray numbers of all denominations upto stage No.13 without completing the above tickets, which constitutes misconduct under Reg. 28(xxxii) of APSRTC Employees (Conduct) Reg. 1963. 2. After considering the explanation of the first respondent, domestic enquiry was ordered. The management as well as the first respondent participated in the enquiry and the Enquiry Officer submitted his report dated 10.01.1997 holding that the charges against the first respondent are proved. Based on the same, the disciplinary authority issued a show cause notice dated 21.01.1997 to the first respondent and after considering his explanation dated 04.02.1997 an order of removal was passed against the first respondent on 06.02.1997. Appeal and the review having been rejected against the said order on 31.03.1997 and 05.01.1998 respectively, the first respondent raise industrial dispute in I.D.No.26 of 1998, which has since been decided under the impugned award dated 13.02.2001, the labour Court, Warangal has allowed the ID by directing reinstatement of the first respondent in service as conductor with continuity of service, with full back wages and the period of suspension also has been declared as on duty. The said order is questioned in this writ petition by the petitioner/management of APSRTC. 3. Heard the learned counsel for the petitioner. The first respondent though served, nobody appears for him. 4. It is contended by the learned Standing Counsel for the petitioner that the labour Court committed serious error in proceeding to re-appreciate the evidence and has recorded its own conclusions and thereby, it came to the finding that the charges 2 and 3 are not proved. 5. It is evident from the reading of the award that the labour Court was of the opinion that it is competent to re-appreciate the evidence and come to the own conclusion regarding the charges. Based on the same, it has proceeded to examine each exhibited document and the evidence in support of the case, as was before the disciplinary authority. The labour Court, primarily, was impressed by the alleged discrepancy in the number of passengers in the bus, as against the charge vis-à-vis the number of tickets found in the tray of the conductor. Ex.M2 – SR Register is relied upon by the labour Court and on probabilities, it found that the first respondent issued tickets to the passengers but the passengers lost their tickets. This theory, which is adopted by the labour Court, has really no basis except drawing an assumption. The labour Court also feels and proceeds to accept that the passengers regarding whom the charge was framed did not know Telugu language, as they are said to be from Orissa. The labour Court also felt that none of the passengers were examined in the domestic enquiry and based on the spot explanation of the first respondent at the time of check, the finding was arrived at against the first respondent. The labour Court has, apparently, failed to notice that in the spot explanation the fact of non-issuing tickets to the passengers in question was not in controversy and even otherwise, the first respondent was given due and fair opportunity in the enquiry and if really, he was relying upon the evidence of the said passengers he could as well have examined the passengers. 6. More importantly, the Supreme Court in USHA BRECO MAZDOOR SANGH v. MANAGEMENT OF USHA BRECO LIMITED[1] has reiterated that when a view taken by the Enquiry Officer in a domestic enquiry and conclusions reached are placed before the labour Court it would have no jurisdiction to substitute its own judgment, although it could have arrived at a different conclusion on the same material. The labour Court is, therefore, clearly in error in re-appreciating the evidence and coming to a conclusion different than that of the disciplinary authority. There is no finding in the impugned award that the enquiry was either not in accordance with law or that the finding therein is perverse. In such event, therefore, interference with the conclusions of the Enquiry Officer on the charges by re-appreciating entire evidence was clearly impermissible. So far as jurisdiction under Section 11-A of the Industrial Disputes Act, 1947 is concerned, in view of its finding that the charges are not proved, it has set aside the punishment by giving consequential directions, in view of the fact that it was not open for the labour Court to re-appreciate the evidence and reach contrary finding on the charges held proved, there is really no exercise carried out by the labour Court under Section 11-A of the Act. 7. I am informed that though this Court has stayed the impugned award subject to compliance of Section 17-B of the Act, the first respondent has been reinstated and working. In that view of the matter, and the fact that he is not appearing in this writ petition either personally or through counsel, in the interest of justice, I deem it appropriate to relegate the first respondent to the labour Court to the extent of considering punishment and its proportionality under Section 11-A of the Act. To the extent of point No.3, therefore, the award is remitted back for reconsideration before the labour Court while reversing and setting aside the finding of the labour Court to the extent of point Nos.1 and 2. The labour Court shall issue notice to the petitioner and the first respondent herein and reconsider and pass appropriate orders to the extent of point No.3 as framed in the impugned order. The writ petition is accordingly allowed-in-part. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J December 3, 2010 DSK [1] (2008) 5 SCC 554