WA/1348/2006 of S.G.Rao, Vs The Depot Manager, APSRTC, Gajuwaka Bus Depot, on 28 December 2006

:: J U D G M E N T::

Counsel for the appellant : NoneCounsel for respondent Nos.1 and 2 : Sri V.Padmanabha Rao for Ms.B.G.Uma Devi.

28[th] December, 2006

Per G.S. SINGHVI, C.J.

This appeal is directed against order dated 3-4-2006 passed bythe learned Single Judge in Writ Petition No.10562 of 2005, whereby he declined to interfere with award dated 14-11-2003 passed by theChairman, Industrial Tribunal-cum-Labour Court, Visakhapatnam(respondent No. 3) in I.D.No.111 of 2001.

Since no one has appeared for the appellant, we have no optionbut to presume that he and his advocate are not interested inprosecuting the appeal and the same is liable to be dismissed indefault.

Even on merits, we are convinced that the learned Single Judgedid not commit any error by refusing to entertain the appellant’schallenge to the award passed by respondent No. 3. The appellantjoined service of the Corporation as a casual worker on 17-05-1990. Subsequently, his services were regularised and he was appointed asConductor. While he was performing duty on 17-05-1995 on bus No.AAZ 9579, the appellant and driver of the bus took one of thepassengers to Gajuwaka Bus Depot on the pretext that he did notfollow the instructions of the appellant and gave him beating. As aresult, the passenger suffered injuries. This incident led to initiation ofdepartmental enquiry. The enquiry officer relied on statement dated18-5-1985 made by the appellant, which was marked as Ex. M-5 in theproceedings held by respondent No. 3 and concluded that the chargeis proved against the delinquent. The disciplinary authority acceptedthe findings of the Enquiry Officer and imposed penalty of defermenton one annual increment of the appellant for a period of two years withcumulative effect besides treating the suspension period as notspent on duty. The industrial dispute raised by the appellant wasdecided by respondent No. 3 vide award dated 14-11-2003. He approved the finding of guilty recorded by the enquiryofficer and the punishment of stoppage of increment for a period of twoyears with cumulative effect but declared that the period of suspension shall be treated as spent on duty.

The learned Single Judge referred to the well recognisedparameters for exercise of High Court’s power of judicial review andheld that the award passed by respondent No. 3 does not suffer fromany legal infirmity.

It is borne out from the record that only two points were arguedbefore the learned Single Judge. The first was that the punishmentimposed by the employer was arbitrary and unjust and the second wasthat in view of his acquittal in Criminal Case No. 414 of 1995, thedisciplinary authority could not have punished the appellant. Thelearned Single Judge answered both the points in negative byassigning the following reasons:

“The petitioner, as can be seen from the award, did notallege any procedural irregularity in the conduct of the enquiry. In the departmental enquiry, the Enquiry Officer, onconsideration of the statements and evidence of the petitioner,passengers and officials of the APSRTC, held that the chargeslevelled against the petitioner were proved. The disciplinaryauthority, considering the nature of the proved charges,imposed punishment of deferment of annual increment for aperiod of two years with cumulative effect and treating thesuspension period as not on duty. The Labour Court, on re-appreciation of the entire material on record, observed that onaccount of the attitude of the workman, the image of theCorporation has gone down in the public and he also causedloss to the Corporation to an extent of Rs.200/-. Therefore, theLabour Court, while observing that the punishment of defermentof annual increment of the workman for a period of two yearswith cumulative effect is reasonable where as the punishmentfor treating the suspension period as not on duty is not justified,confirmed the punishment of deferment of annual increment ofthe workman for a period of two years with cumulative effect andset aside the punishment of treating the suspension period asnot on duty. Had the Labour Court held that the chargeslevelled against the petitioner are not proved, then the petitioner would have been justified in contending that the punishmentimposed is disproportionate to the proved misconduct, but thatis not the case. The Labour Court, having held that the chargeslevelled against the petitioner are proved, has taken a lenientview and modified the punishment as aforesaid.

The further contention of the petitioner is that against thesame charges, the Criminal Court, vide orders passed inC.C.No. 414 of 1995, acquitted the petitioner on the ground thatthe charges levelled against him are not proved, and that theLabour Court has not considered the said order passed by theCriminal Court, therefore, the award passed by the LabourCourt be set aside to the extent it confirmed the punishment ofdeferment of annual increment for a period of two years withcumulative effect. I am unable to accept the said contention. Aperusal of the Labour Court award clearly shows that thepetitioner has not produced the copy of the criminal courtjudgment before the Labour Court. However, mere acquittal ofthe petitioner by the Criminal Court does not automatically givehim the right to set aside the punishment awarded. Before theLabour Court the evidence led by the management wasdifferent from that led by the prosecution in the criminal caseand the approach and the objectives of the criminalproceedings and the disciplinary proceedings are altogetherdistinct and different. Therefore, it was open to the Labour Courtto have come to an independent conclusion dehors the findingof the Criminal Court.”

Conclusion

In our opinion, the appellant’s acquittal in Criminal Case No.414of 1995 did not have the effect of wiping the allegation levelled againsthim and the competent authority did not commit any illegality byholding enquiry and passing the order of punishment. The nature ofthe criminal proceedings instituted in the court and the departmentalenquiry are substantially different and acquittal in the criminal casecannot, by itself, be made the basis for nullifying the order ofpunishment issued by the employer after holding a regular enquiryunless it is shown that the substratum of the allegation constituting the subject matter of the criminal case and the departmental enquiry is thesame and the evidence produced in the departmental enquiry issimilar to the one adduced in the criminal case. This view of ours isbased on the judgments of the Supreme Court in R.P.Kapur v. Unionof India[[1]], Corporation of the City of Nagpur, Civil Lines, Nagpurv. Ramchandra G.Modak[[2]], Anil Kumar Nag v. General Manager(PJ), Indian Oil Corpn. Limited, Haldia[[3]], Depot Manager, A.P.State Road Transport Corporation v. Mohd. Yousuf Miya[[4]], Stateof Rajasthan v. B.K. Meena[[5]]and Kendriya Vidyalaya Sangathanv. T. Srinivas[[6]].The aforementioned judgments were considered bythe Division Bench in Writ Appeal No.1076 of 2005 – Depot Manager,APSRTC, Parvathipuram and others v. D. Vykunta Rao andanother decided on 16-6-2006, and it was held that the order ofpunishment passed by the competent authority after holding regulardepartmental enquiry cannot be annulled only on the ground that thedelinquent was acquitted in the criminal case.

In view of the above, we express our total agreement with thelearned Single Judge that award dated 14-11-2003 passed by theIndustrial Tribunal did not suffer from any jurisdictional infirmity or errorof law apparent on the face of the record, which could justifyinterference by this Court under Article 226 of the Constitution of India.

In the result, the appeal is dismissed.

As a sequel to dismissal of the appeal, WAMP.No.2860 of 2006filed by the appellant for interim relief is also dismissed.

G.S.SINGHVI, C.J.

28[th] December, 2006

ARS

[1]AIR 1964 SC 787[2]AIR 1984 SC 626[3]JT 2005(8) SC 425[4]AIR 1997 SC 2232[5](1996) 7 SCC 417[6](2004) 7 SCC 442

C.V.NAGARJUNA REDDY, J.