WP/8012/1995 of Raguda Siva Sankar Prasad Vs The Dep. Manager on 31 December 2004

ORDER:

This writ petition is filed by the workman being aggrieved by the Award dated17.11.1994 in I.D.No.139 of 1992 passed by the Industrial Tribunal-cum-LabourCourt, Visakhapatnam, wherein the claim petition filed by the petitioner/workmanunder Section 2-A(2) of the Industrial Disputes Act, 1947 was dismissed, confirmingthe punishment imposed by the management dismissing him from service.

2. The petitioner was appointed as a Cleaner in Andhra Pradesh State RoadTransport Corporation with effect from 02.10.1976. Further, he was promoted as aMechanic in the year 1979. According to the petitioner, he had put in anunblemished service of about 12 years. While so, a charge sheet was issuedalleging that the petitioner committed theft of Corporation property of fuel injectionpump bearing No.WVD.2305 fitted to the engine No.170207 during the night shift on23/24-08-1986 in the garage. Further, he had also stolen the Corporation property ofan alternator bearing No.3440 during the night shift on 11.09.1986 when it was fittedto the parked vehicle in the garage. Further, it was alleged that he hadunauthorisedly entered into the Tyres section and stolen the new tube of 900 x 20size on 23/24.09.1986 and also one sponge sheet E2 from the garage of Gajuwakadepot. A regular departmental enquiry was conducted and the Enquiry Officer foundthe petitioner guilty of the charges. The Disciplinary Authority, after issuing a show cause notice, passed final order of removal dated 07.10.1987.

3. Apart from this, the petitioner was also proceeded with criminally in C.C.No.751 of1987 on the file of the II Additional Munsif Magistrate, Gajuwaka, VisakhapatnamDistrict, which ended in acquittal on 16.05.1987. Aggrieved by the removal, thepetitioner raised an industrial dispute by filing claim petition under Section 2-A(2) ofthe Industrial Disputes Act, 1947 before the Industrial Tribunal-cum-Labour Court, atVisakhapatnam.

4. It was the contention of the petitioner that the enquiry was not properly conductedand that he was not given full and fair opportunity to defend himself and evenassuming that the misconduct was proved, the removal from service wasdisproportionate to that of the misconduct alleged against him.

5. The respondents/Management also filed a detailed counter affidavit before theIndustrial Tribunal-cum-Labour Court, denying the allegations made by thepetitioner.

6. Before the Industrial Tribunal-cum-Labour Court, none were examined on behalfof the Management or on behalf of the workman. However, Exs. M1 to M15 weremarked on behalf of the Management. No document was marked on behalf of theworkman/petitioner herein.

7. After a detailed consideration of the entire evidence on record, the Tribunalobserved that in the departmental enquiry, all the concerned persons wereexamined and a finding was given by the Management. When a theft is committedby the workman belonging to the same department, it is not possible to get outsidewitnesses and direct witnesses also cannot be accepted. The evidence of thewitnesses disclosed that on the date of the occurrences the petitioner was availableat the concerned place where he can have access to the property. The managementalso stated that it has lost confidence on the workman and therefore, he cannot be allowed to continue in office. Therefore, in the said circumstances, the Tribunalfound that the material before it was sufficient to hold the petitioner guilty ofmisconduct alleged against him. While holding so, the Tribunal held that thepunishment imposed by the management is justifiable and granted no relief in theclaim petition filed by the workman and dismissed the same. Aggrieved by the same,this writ petition is filed.

8. The learned Counsel for the petitioner submits that assuming that the misconductagainst the petitioner was proved, the dismissal of the petitioner from the servicewas not proportionate to that of the misconduct alleged against him and this was thefirst time after more than 12 years of clean service the petitioner was involved insuch misconduct. Therefore, the Tribunal ought to have taken a lenient view andgranted relief of reinstatement at least.

9. Per contra, the learned Counsel for the respondents contends that the Award ofthe Tribunal is a well reasoned one and does not call for interference of this Courtunder Article 226 of the Constitution of India.

10. In these circumstances, the only question that falls for consideration is, whetherthe punishment imposed by the management was proportionate to that of themisconduct alleged against the petitioner?

11. The learned Counsel for the respondents was asked to place the service recordof the petitioner before this Court to ascertain as to what was his past record. Thelearned Counsel for the respondents placed the service record of the petitionerbefore this Court and absolutely there was nothing against him till 1987. This beingthe first offence and the petitioner had put in more than 12 years of service, whileexercising its powers under Section 11-A of the Industrial Disputes Act, 1947, theLabour Court ought to have taken a lenient view in the claim petition, and at leastdirected reinstatement of the petitioner into service without any back wages andwithout any attendant benefits, but with continuity of service. In the peculiar circumstances of the case, I am of the opinion that the punishment of removal fromservice is disproportionate, particularly since the past conduct of the petitioner wasclean. Therefore, the award of the Labour Court is liable to be modified as under:

“In the result, the punishment of removal from service imposed by the Managementis set aside and the management is directed to reinstate the petitioner/workman intoservice with continuity of service, but without any back wages and without anyattendant benefits”.

12. The writ petition is allowed to the extent indicated above. No order as to costs.

Dated: 31[st] December, 2004.

Cs/TJS

________________

C.V.RAMULU, J

That Rule Nisi has been made absolute as above.

Witness the Hon’ble Sri Devinder Gupta, the Chief Justice on this Friday, the Thirtyfirst day of December, Two Thousand and Four.

ASSISTANT REGISTRAR

To

1. The Depot Manager, A.P.S.R.T.C., Gajuwaka Depot, Visakhapatnam.

2. The Chairman, Industrial Tribunal-cum-Labour Court, Visakhapatnam.

3. Two C.D.copies.