*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY +Writ Petition No.1323 of 2010 %24.12.2010 #S.Sivaji. ..Petitioner. Vs. $ The Chairman cum Presiding Officer, Labour Court, Visakhapatnam and others. ..Respondents. !Counsel for the petitioner : Sri Ch.Murali Krishna ^Counsel for the Respondents : Sri Appaiah Sharma <Gist : >Head Note: ?Cases Referred: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.1323 of 2004 ORDER: The petitioner was employed as a Driver in the Salur Depot of APSRTC. On 27.07.1992, he reported to duty in the early hours. He took bus, bearing No.AEZ 2631, and came out after making necessary entries in the security office. A complaint was made by the security guard to the effect that the petitioner did not stop the bus, after making entries and that subsequently a bag containing blades of broken springs was handed over to a boy by the petitioner. A charge sheet, dated 04.08.1992, was issued to the petitioner framing two charges, alleging theft of articles. The petitioner submitted his explanation, denying the charges. The departmental enquiry was conducted and the Enquiry Officer submitted his report, holding that the charges are proved. That was followed by a show cause notice dated 20.02.1993 issued by the Depot Manager, Salur, the 3rd respondent, proposing the punishment of removal. The petitioner submitted his explanation and not satisfied with that, the 3rd respondent passed an order dated 08.03.1993, directing removal of the petitioner from service. Simultaneously, the petitioner was tried in C.C.No.118 of 1992 by the Court of Judicial Magistrate of First Class, Salur. Through judgment, dated 27.10.1993, the learned JFCM convicted the petitioner for the offence alleged against him and imposed the punishment but extended the benefit under the Probation of Offenders Act, requiring the petitioner to execute a bond for a sum of Rs.5,000/-. The petitioner filed a criminal appeal, being Crl.A.No.110 of 1993, in the Court of Additional Sessions Judge, Vizianagaram. The appeal was allowed on 28.10.1994 and the conviction and sentence imposed against him, were set aside. Departmental appeal filed by the petitioner against the order, dated 08.03.1993, directing his removal from service, was rejected. Thereupon the petitioner raised an industrial dispute, being I.D.No.375 of 1995, before the Industrial Tribunal-cum-Labour Court, Visakhapatnam.. Through its award, dated 01.02.1997, the Labour Court dismissed the I.D. Hence, this writ petition. Sri Ch.Murali Krishna, learned counsel for the petitioner, submits that the charges against the petitioner in the departmental proceedings and the criminal cases were identical and without even waiting for the out come of the criminal case, the 3rd respondent proceeded with the matter. He contends that whatever may have been the justification for the 3rd respondent in proceeding further, even while the criminal proceedings were pending, the Labour Court ought to have set aside the order of removal in the light of the judgment rendered by the appellate Court in Crl.A.No.110 of 1993. Learned counsel submits that the charges against the petitioner were not at all proved in the disciplinary proceedings and the punishment imposed against the petitioner is totally disproportionate. Sri Appaiah Shrama, learned counsel for the respondents, on the other hand, submits that in the departmental enquiry, the eye- witnesses and other circumstantial witnesses were examined and the charges were held proved. According to him, the purport of the disciplinary proceedings is different from the one, in the criminal cases. Learned counsel submits that the 3rd respondent as well as the Labour Court have examined the matter in detail and no interference is warranted with the same. The allegation against the petitioner is contained in the charge sheet. The charges read as under: “1. For having failed to stop the vehicle bearing No.AEZ 2631 at Security Branch near the gate of the garage for checking the vehicle by on duty security guard before taking the vehicle for performing your duty on route Salur-P.Lingalavalasa on 2.07.1992 which constitutes misconduct under Rg.28 (xxxii) of APSRTC Employees’ (Conduct) Reg.1963.” 2. For having attempted to steal five spring blades from the garage premises on 21.07.1992 by handing over gunny bag containing above property to Sri Patnana Srinivasa Rao of Dasari veedhi, Salur after you had taken the vehicle bearing No.AEZ 2631 from the garage for performing duty on route Salur-P.Lingalavalasa which constitutes misconduct under Reg.28(x) of APSRTC Employees’ (Conduct) Reg.1963.” As observed earlier, simultaneously an FIR was registered and the petitioner was tried in C.C.No.118 of 1992. Since the allegation in the criminal case as well as in the departmental proceedings is one and the same, in all fairness, the 3rd respondent ought to have deferred the matter till the criminal Court decided the case. However, he proceeded to appoint an Enquiry Officer, who in turn, submitted a report holding that the charges are proved. Taking the same into account, the 3rd respondent passed an order, dated 08.03.1993 imposing the punishment of removal from service. The judgment of the criminal case came few months thereafter, may be, holding that the crime against the petitioner is proved. While against the order passed by the 3rd respondent, the petitioner filed I.D.No.375 of 1995, he filed Crl.A.No.110 of 1993 against the judgment, dated 27.10.1993, in C.C.No.118 of 1992. The Criminal Court allowed the appeal and set aside the conviction and sentence through judgment, dated 28.10.1994. The said judgment was made part of the record before the Labour Court, but that was not at all taken into account and the order of removal was confirmed. There was some amount of impropriety on the part of the 3rd respondent in proceeding with the disciplinary enquiry, even while the criminal case was pending. Assuming that the purport of these two is different, it needs to be seen as to whether the charges were proved against the petitioner. There is any amount of inconsistency in the version put forward by the security guard. He stated that after parking the bus, nearby the security point, the petitioner got the entries made and proceeded with the bus. The allegation was that the petitioner did not stop the bus. The security was expected to check the bus, before making entries. It is ununderstandable as to how he completed the entries and wanted to physically check the bus later. As to the allegation that a gunny bag containing broken springs was handed over to a boy, there is inconsistency once again between the version of the security guard, on the one hand, and the Controller, on the other hand. According to the Controller, the bag was opened after the main gate. The security guard, however, proceeded on the assumption that the bag contained springs without even opening it. In his deposition, the security guard stated that himself, the petitioner and the boy, who was handed over the bag, were proceeding to the security point. The version of the Controller is some what different. Normally, this Court would not undertake such discussion, in the writ petition filed against the award of the Labour Court. The reason being that the Labour Court happens to be final authority on facts. However, in the context of examining whether the charge was proved beyond doubt and whether the punishment imposed against the petitioner is warranted or proportionate, the discussion becomes necessary. The punishment in a criminal case, may put the accused to inconvenience or hardship for a limited time. However, the punishment imposed against an employee in the form of removal would deny himself as well as his family, of the livelihood. Therefore, proper care must be taken to ensure that the relevant facts are proved before such major punishment is imposed. In addition to the aspects referred to above, the allegation against the petitioner is that he was responsible for taking away some broken blades of the springs. Even if that allegation is proved, it should not have entailed in the imposition of punishment of removal from service. The petitioner was out of employment for the past almost two decades. This Court is of the view that the reinstatement of the petitioner with continuity of service, but without back wages, would meet the ends of justice. Hence, the Writ Petition is allowed, and the order, dated 08.03.1993, passed by the 3rd respondent and the award dated 01.02.1997 in I.D.No.375 of 1995, passed by the Labour Court, Visakhapatnam, are set aside. The petitioner shall be reinstated into service with continuity of service, but without back wages. The attendant benefits shall be restricted only to the one of fixation of pay scale without any arrears and for counting the service for determining the retirement benefits. There shall be no order as costs. _____________________ L. NARASIMHA REDDY, J. Dt.24.12.2010. GJ