HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No. 6869 OF 2004 DATED 06TH NOVEMBER, 2009. BETWEEN P.Muni Raju ….Petitioner And The Hon’ble Industrial Tribunal-cum-Labour Court, Anantapur, rep. By its Presiding Officer, and, anr. …Respondents. HONOURABLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No. 6869 OF 2004 ORDER: The Nil Award dated 03.12.2002 passed by the Industrial Tribunal-cum-Labour Court, Anantapur in I.D.No.73 of 2000 is challenged in this Writ Petition. The petitioner seeks a further direction to the Andhra Pradesh State Road Transport Corporation (for brevity, ‘the APSRTC’) to reinstate him in service with continuity of service, attendant benefits and backwages. The petitioner was a conductor in the APSRTC’s Proddutur Depot, Cuddapah District. On 31.05.1997 while he was conducting the bus bearing Registration No. AP.9Z.9524, a check was made at stage No.9/8 and certain cash and ticket irregularities were allegedly detected. Consequently, the petitioner was subjected to disciplinary proceedings in respect of the five charges under- mentioned: “ 1. For having failed to observe the rule ‘Issue and Start’. 2. For having failed to collect the fare and issue tickets to passengers found travelling from Anantapur to Tadipatri, stages 9 to 8, which constitutes misconduct under Reg.28 (vi.a) of APSRTC Employees (conduct) Reg.1963. 3. For having not accounted the ticket Nos.050/951991 to 99 for Rs.40/- denomination, which were issued to a batch of nine passengers found travelling from Anantapur to Proddatur ex. Stages9 to 1 though collected the requisite fare (Rs.41/-each) from them and accounted the combination tickets of Rs.1/- denm. which constitutes misconduct under Reg.28(xxxi) of APSRTC Employees (conduct) Reg.1963. 4. For having unserially sold the Rs.40/- denm. tickets i.e. 050/951991 to 999 without any endorsement in the SR which constitutes misconduct under Reg.28(xxxii) of APSRTC Employees (conduct) Reg.1963. 5. For having closed the ticket tray numbers of all denominations in the S.R. upto stage No.8, without completing the above tickets issues which constitutes misconduct under Reg. 28(xxxii) of APSRTC Employees (conduct) Reg.1963.” The petitioner submitted his explanation denying the charges, but the APSRTC, being dissatisfied therewith ordered a departmental enquiry. The Enquiry Officer submitted his report holding that all the charges levelled against the petitioner were proved. Consequently, the APSRTC passed order dated 27.03.1998 removing the petitioner from service. The petitioner’s appeal and thereafter his review petition were rejected. The petitioner then raised an Industrial Dispute under Section 2-A(2) of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’). The Labour Court, Anantapur, having considered the material on record came to the conclusion that charges 1,3,4 and 5 levelled against the petitioner stood proved. Taking into consideration the previous history of the petitioner, which was characterised as very bad, the Labour Court held that the workman was not entitled to any relief under Section 11-A of the Act of 1947 and accordingly dismissed the petition. Hence this Writ Petition. Sri G.Ravi Mohan, learned Counsel for the petitioner, pointed out that the material on record clearly demonstrated that there was no misappropriation on the part of the petitioner and the only irregularities committed by him were with regard to issuance of tickets and closing the SR without following the rules. The crux of the charges was that the petitioner had issued nine tickets to a batch of nine passengers who were travelling from Stage.9 to Stage.1, and that they had paid Rs.41/- per ticket and the petitioner had issued tickets of Rs.40/- denomination bearing Nos.050/951991 to 9519999 and combination tickets of Re.1/- denomination. The Rs.40/- denomination tickets block was from Sl.No.050/951900 to 050/951999; the petitioner thus appears to have issued nine tickets from the end of the block. In the light of this explanation, the learned counsel contended that the punishment imposed was disproportionate. Smt.W.V.S.Rajeswari, learned Counsel appearing for the APSRTC, submitted that the issuance of non-serial tickets by the petitioner showed his malafide intention and relied upon the finding of the Labour Court that there was scope for the petitioner to take back those tickets from the concerned passengers and reissue the same. However, it is to be noticed that the said tickets were issued from Stage.9 to Stage.1, that is, from the starting stage to the destination/last stage of the journey. Therefore, there could be no possibility of the petitioner taking back such tickets and reissuing them during the journey. The finding of the Labour Court is therefore perverse and unsustainable. In the absence of any actual misappropriation and in the light of the lesser irregularities said to have been committed by the petitioner, it was for the Labour Court to consider whether any case was made out for exercise of jurisdiction under Section 11-A of the Act of 1947 by applying the doctrine of proportionality. Needless to state, in the event of establishment of only the lesser irregularities, the dire punishment of removal from service would normally be unduly harsh. In the present case, however, the Labour Court appears to have taken into consideration the previous history of the petitioner, which it characterised as very bad, and thereby denied him relief under Section 11-A of the Act of 1947. It is relevant to note that the previous history and past misconduct of the petitioner were neither the subject matter of the charges levelled against him nor put to him during the disciplinary proceedings. When the past misconduct was not part of the charges in the disciplinary proceedings, it was not open to the Labour Court to take into account such past misconduct. Reference may be made to the judgment of a division bench of this Court in K.Natarajan Vs. Station Commander, Air Force Station, Hyderabad[1], in this regard. Therefore, the Labour Court erred in taking into account the past misconduct and the previous history of the petitioner. Denial of relief under Section 11-A of the Act of 1947 based on such previous history, which had clearly prejudiced the Labour Court, is therefore unsustainable. The matter accordingly requires re-consideration by the Labour Court to the extent of exercising jurisdiction under Section 11-A of the Act of 1947 on the ground of proportionality of the punishment. The Writ Petition is accordingly allowed in part, setting aside the Nil Award dated 03.12.2002 in I.D.No.73 of 2000 on the file of the Industrial Tribunal-cum-Labour Court, Anantapur, and remanding the matter to the said Court for considering the matter afresh, to the extent of exercising jurisdiction under Section 11-A of the Act of 1947 on the principle of proportionality of the punishment. This exercise shall be completed as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs. --------------------------- JUSTICE SANJAY KUMAR DATED 06TH NOVEMBER, 2009. Msnr. [1] 2007(6) ALD 122