* THE HONOURABLE SRI JUSTICE L. NARASIMHA REDDY + WRIT PETITION No.19758 OF 2003 % Dated 27.12.2010 # N. Srinivas Reddy ... PETITIONER V. $ Depot Manager, Jeedimetla Deport, APSRTC, Hyderabad and another ...RESPONDENTS ! Counsel for the Petitioner : G. Vidyasagar ^ Counsel for the Respondents : K. Madhava Reddy < Gist : > Head Note: ? Cases Referred: C/15 THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY WRIT PETITION No.19758 OF 2003 ORDER: The petitioner was employed as a conductor in APSRTC in the year 1990. He was working in the Jeedimetla Depot in the year 1998. On 12.10.1998,, while he was conducting the service between Patancheru and Jeedimetla on route No.223J/A, a check was conducted at stage No.16. Two allegations were made against the petitioner, viz., a) that one passenger, who boarded at stage No.18 and scheduled to travel up to stage No.16 paid fare of Rs.2.25 ps., but the petitioner did not issue ticket, and b) that four passengers boarded at stage No.17 for travelling up to stage No.15 and though they paid fare of Rs.9.00 (Rs.2.25 ps. each), the petitioner did not issue tickets. A charge sheet was issued on 16.10.1998. Petitioner submitted explanation stating that the passenger, who is referred to in charge No.1, did not pay the fare and on the other hand, he claimed that he holds a bus pass. He stated that when the discussion as to production of the pass was going on, the bus reached stage No.17, where four passengers boarded and paid fare. According to him, when he was about to issue tickets for the four passengers mentioned in charge No.2, the passenger mentioned in charge No.1 was trying to get down. He said to have rushed to him to prevent him from alighting the bus and that the check took place almost simultaneously. The explanation was not accepted by the 1st respondent. An Enquiry Officer was appointed. In the course of enquiry, the petitioner made his statement, apart from producing one of the four passengers mentioned in charge No.2. In his report, dated 18.11.1998, the Enquiry Officer held that the charges are proved. Taking the same into account, the 1st respondent passed order, dated 02.01.1999, directing removal of the petitioner from service. After exhausting the departmental remedies, petitioner filed I.D.No.114 of 2000 in the Labour Court – I. That was transferred to the Industrial Tribunal - II, Hyderabad, and renumbered as I.D.No.78 of 2002. Through Award, dated 21.03.2003, the Labour Court dismissed the I.D. Hence, this writ petition. The petitioner contends that the findings recorded by the Enquiry Officer are perverse and contrary to evidence, and that the Labour Court did not make any endeavour to analyze the defects therein. The respondents filed counter affidavit opposing the writ petition. It is stated that the charges framed against the petitioner are serious in nature and the order of removal or the Award in the I.D. do not suffer from any illegality or infirmity. Sri G. Vidyasagar, learned counsel for the petitioner, submits that the checking staff threatened the petitioner as well as the passengers and prepared a fabricated report. He contends that the bus travelled just half a kilometer from stage No.17, where the four passengers have boarded; and even while the petitioner was about to issue tickets, the passenger, who boarded at stage No.18 and claimed to have bus pass, was about to alight, without producing the pass. According to him, the petitioner rushed towards the said passenger and the check took place instantly. He submits that this is one of the rare cases where the passenger, mentioned in the charge sheet, was examined by the delinquent employee and though nothing was elicited from the witness in the cross-examination, it was totally ignored by the Enquiry Officer, the disciplinary authority and the Labour Court. Sri K. Madhava Reddy, learned counsel for the respondents, submits that the explanation offered by the petitioner in reply to the show-cause notice, is different from the one that was offered when the check took place. He submits that though one of the passengers was examined, the record speaks for itself as to the misconduct on the part of the petitioner. The learned counsel submits that the 1st respondent and the Labour Court have considered the matter objectively and the orders passed by them do not call for any interference. The petitioner was conductor of a sub-urban service, on 12.10.1998. A check was conducted at stage No.16 i.e., two stages after the bus started from the destination. On the basis of the observations made by the checking officials, the following charges were framed against the petitioner, through charge sheet dated 16.10.1998: “1. “For having failed to issue ticket, despite collecting the requisite fare of Rs.2.25 ps. at the boarding point itself to a passenger who was found alighting without ticket at Mandal Office having boarded the bus at Patancheru, ex-stages 18 to16, which constitutes misconduct in terms of Regulation 28 (vi - a) of APSRTC Employee’s Conduct Regulations, 1963.” 2. “For having failed to issue tickets, despite collecting the requisite fare of Rs.9/- @ Rs.2.25 ps. each at the boarding point itself, to four passengers who were found travelling without tickets from R.C. Puram to Ashok Nagar, ex-stages 17 to 15, which constitutes misconduct in terms of Regulation 28 (vi – a) of APSRTC Employee’s Conduct Regulations, 1963.”” The petitioner denied the charges in his explanation. An Enquiry Officer was appointed and the charges were held proved. Order of removal entailed and the I.D. filed against it was dismissed. If the charge that a conductor has collected fare, but failed to issue tickets is proved, serious misconduct on his part stands established and corresponding punishment can be imposed. The best persons to speak about the payment of charges and the failure on the part of the conductor to issue tickets are the passengers themselves. However, on account of the difficulty involved in procuring their presence, the courts have relieved the employer, of the responsibility to examine the concerned passengers, as witnesses. This is, however, is one of the rare cases where the employee himself procured the presence of such passenger in the domestic enquiry. He examined one of the four passengers referred to in charge No.2 as a witness. Consistent with the plea of the petitioner, the passenger deposed that a fare of Rs.9.00 was paid by them, after boarding at stage No.17 and when the petitioner was about to issue tickets, the passenger who boarded the bus at stage No.18 and claimed to have bus pass, was trying to get down the bus, without producing the pass or without paying fare. The petitioner is said to have rushed to him, to prevent the exit of that passenger and that the check has taken place in the meanwhile. In case, the Presenting Officer in the domestic enquiry was of the view that the passenger has come forward with an improved or a contradictory version, he could have elicited the contradiction, by cross- examining him. The passenger was not cross-examined at all, in the domestic enquiry. His version in the chief examination remains unquestioned and it adds strength to the plea of the petitioner. The Enquiry Officer and the 1st respondent discarded that evidence without furnishing any reasons. The Labour Court bestowed most of its attention to the alleged contradiction between the statement of the petitioner, said to have been made at the time of check, and his subsequent version in the explanation and in the domestic enquiry. When the plea of the petitioner is that the checking officials have threatened him and the passengers, extracted statements and obtained signatures; placing of reliance upon that very material would, in a way amount to begging the question. The very purpose of conducting domestic enquiry, is to verify the veracity of the version of the checking staff. The respondents have not chosen to cross-examine the passenger, who was examined as a witness. It was not even suggested to him that he was trying to help the petitioner. His independent status was not at all doubted. Therefore, the charges cannot be said to have been proved in accordance with law. At any rate, in view of the statement made by the passenger in the domestic enquiry, punishment of removal from service, cannot be sustained. Hence, the writ petition is allowed and the order of removal dated 02.01.1999 passed by the 1st respondent and the Award dated 21.03.2003 in I.D.No.78 of 2002 are set aside. The petitioner shall be reinstated into service without back wages. He shall be entitled to continuity of service, but only limited to the purpose of determining the pay scales, after reinstatement and for computation of retirement benefits. Punishment of stoppage of one increment, without cumulative effect for a period of one year shall stand imposed against him. There shall be no order as to costs. ___________________________ L. NARASIMHA REDDY, J December 27, 2010 Note: L.R. Copy to the marked. MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY SEVENTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY WRIT PETITION No.19758 OF 2003 Between: N. Srinivas Reddy ..... PETITIONER AND Depot Manager and another ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY WRIT PETITION No.19758 OF 2003 December 27, 2010