HON’BLE SRI JUSTICE R. SUBHASH REDDY Writ Petition No.5416 of 2005 Date: June 29, 2010 Between: The Depot Manager, APSRTC, Shadnagar Depot Bus Depot, Shadnagar, Mahabubnagar District, and another … Petitioners And The Labour Court-III, Hyderabad, Represented by its Presiding Officer, and another … Respondents Order: This writ petition, by A.P. State Road Transport Corporation, through its Depot Manager, Shadnagar Depot, is filed challenging award dated 15-07-2004 passed in I.D.No.46 of 2002 by the Labour Court-III, Hyderabad. By the aforesaid award, while setting aside the order of termination of the services of the second respondent dated 22-11-2001, the Labour Court ordered his reinstatement with back-wages but without attendant benefits and further ordered that one increment of his, shall be stopped with cumulative effect. Briefly stated, the facts of the case are as under: The second respondent herein was appointed as Conductor in the A.P. State Road Transport Corporation in the year 1983. He was on duty as Conductor on 05-05-2001 on the bus bearing No.AP-10-Z-4164 on the route Hyderabad-Shadnagar. While in transit, a check was exercised by checking officials at stage No.6/7 and they have noticed certain cash and ticket irregularities. In view of the same, disciplinary proceedings were initiated against the second respondent and he was placed under suspension. In the disciplinary proceedings, two charges were framed against him, which read as under: “1. For having failed to observe the rule issue & start which constitutes misconduct under Reg.28(vi-a) of APSRTC Employees’ (Conduct) Reg.1963; 2. For having failed to issue tickets to three individual passengers who have boarded your bus at Shapur and found alighting without tickets at Madanapally ex-stages 6 to 6/7, which constitutes mis-conduct under Reg.28(vi- a) of APSRTC Employees’ (Conduct) Reg.1963.” The enquiry officer who conducted enquiry into the charges framed against the second respondent recorded a finding to the effect that both the charges are proved. Based on such finding, the second respondent was terminated from service by order dated 21-11-2001. Though the second respondent filed an appeal, challenging the said order, the same ended in dismissal. Challenging the order of termination, as confirmed by the appellate authority, the second respondent raised an industrial dispute, by filing an application under Section 2(A)2 of Industrial Disputes Act, 1947, in I.D.No.46 of 2002 before the Labour Court-III, Hyderabad. The Labour Court confirmed the finding of the enquiry officer and by recording a finding that there was a bona fide mistake on the part of the second respondent in not following the rule of issue and start and also in not issuing tickets to three passengers, set-aside the order of termination and ordered reinstatement with back- wages, with continuity of service, but without attendant benefits. The Labour Court further ordered stoppage of one increment of the second respondent, after his reinstatement, which will have cumulative effect. Hence, the present writ petition by the APSRTC. It is submitted by Sri C. Sunil Kumar Reddy, learned standing counsel appearing for the petitioner-APSRTC that failing to follow the rule of issue and start and not collecting fare and not issuing tickets to the passengers is a misconduct within the meaning of Regulation 28(vi-a) of APSRTC Employees’ (Conduct) Regulations, 1963. It is stated that the Labour Court, while holding that there is mistake on the part of the second respondent, not amounting to misconduct, ordered his reinstatement with continuity of service and also granted back-wages. It is submitted that as much as the charges framed against the second respondent are proved, the Labour Court erred in awarding back- wages to the second respondent. Though notice is served on the second respondent, there is no appearance on his behalf. Heard learned standing counsel for the petitioner-APSRTC and perused the award of the Labour Court. In this case, it is to be noted that the allegation against the second respondent is that without issuing tickets he started the bus he was conducting on the route Hyderabad-Shadnagar on 05-05-2001. Further allegation against him is that he failed to issue tickets to three individual passengers who boarded the bus at Shapur and found alighting without tickets at Madanapally ex- stages 6 to 6/7. In the domestic enquiry, pursuant to initiation of disciplinary proceedings against the second respondent, findings were recorded by the enquiry officer to the effect that the charges framed against him were proved. Even before the Labour Court, on behalf of the second respondent, a memo was filed under Section 11-A of Industrial Disputes Act, 1947 not disputing the validity of the domestic enquiry. In view of the said memo, the Labour Court has held that the enquiry was valid. In spite of the same, the Labour Court, by recording a finding that there were about 50 passengers in the bus including pass-holders held that the charges framed against the second respondent amounts to mistake, but not misconduct. In the circumstances, it is apposite to refer to the term misconduct, as defined under Regulation 28(vi-a) of the Regulations, which reads as under: “Failure on the part of the Conductor/Booking Clerk to issue valid passengers/luggage ticket, in accordance with the order passed by the Corporation or any other authority under the Corporation, from time to time, before starting or allowing a bus to be started from the point, where such passenger/luggage, boarded or loaded as the case may be in respect of mofussil services, and before passing a Ticket Issue Completion Point, fixed from time to time in respect of City/Town Services.” From the above, it is clear that failure to issue tickets and allowing the bus to pass beyond the Ticket Issue Completion Point amounts to misconduct. However, the Labour Court, without taking into account the definition of misconduct, as extracted hereinabove, in a casual manner, recorded a finding that there was mistake on the part of the second respondnet, but not misconduct. The said finding is not only contrary to the evidence on record, but is also in violation of Regulation 28(vi-a) of the Regulations. In that view of the matter, it cannot be said that the charges framed against the second respondent only amount to mistake, but not misconduct. Hence, the finding of the Labour Court, to the extent of holding that there was a mistake on the part of the second respondent, but not misconduct, is liable to be set- aside. Further, it is to be noted that in view of the nature of charges framed against the second respondent and the findings recorded in the disciplinary proceedings, the Labour Court rightly held that it is not a case to order termination of the services of the second respondent. There is no allegation of misappropriation of money, but the charges framed against the second respondent are that he failed to issue tickets to passengers who were alighting when check was exercised by the officials and he let the bus to proceed without issuing tickets, i.e. he failed to follow the rule issue and start. The Labour Court, taking into account the proportionality of the punishment imposed in the disciplinary proceedings, rightly set-aside the order of termination. At the same time, while ordering withholding of one increment, the Tribunal awarded back-wages. In the present case, where charges framed against the second respondent are proved and the same constitute misconduct as defined under Regulation 28(vi-a) of the Regulations, the Labour Court, without recording any valid reasons, erred in awarding back-wages to the second respondent. In that view of the matter, the award of the Labour Court to the extent of awarding back-wages to the second respondent is liable to be set-aside. For the aforesaid reasons, the award dated 15-07-2004, passed in I.D.No.46 of 2002 by the Labour Court-III, Hyderabad, is set-aside only to the extent of awarding back-wages. In all other respects, the said award is confirmed. The writ petition is allowed to the extent indicated above. No order as to costs. _____________________ (R. SUBHASH REDDY, J) June 29, 2010 MRR