WP/26000/2007 of V. Narayana Reddy, Vs The Industrial Tribunal-II on 31 December 2013

ORAL ORDER:

1. The present writ petition is filed assailing the Award dated 09.11.2005 inI.D.No.16 of 2005 passed by the first respondent-Industrial Tribunal-II, whichconfirmed the modified punishment earlier imposed by the revisional authorityi.e., 3[rd] respondent.

2. The facts, in brief, are that the petitioner was initially appointed conductoron 25.06.1990 in the respondent Corporation, there afterwards on 15.02.1992his services were regularized. While he was conducting the bus of therespondent Corporation, on 10.02.1999 a check was exercised by the officialsof the Corporation at Stage No.12/11 en route No.3K/17 - from Kushaiguda toManikeshwar Nagar. Based on what are said to be the irregularitiescommitted by the petitioner-Conductor, on 24.02.1999 a charge memo wasissued to him with five charges, apart from placing him under suspension.

3. Later, dissatisfied with the explanation submitted by the petitioner, therespondent Corporation went ahead with the departmental enquiry andeventually the Disciplinary Authority inflicted the punishment of removal fromservice on the petitioner through an Order dated 16.08.1999, which was takenin intra-departmental appeal by the petitioner. When the said appeal wasdismissed through an order dated 17.12.1999, the petitioner further carried thematter in revision before the 3[rd] respondent.

4. The Revisional Authority of the respondent Corporation, havingconfirmed the order of removal, taking a sympathetic view, directed theappointment of the petitioner afresh through an Order dated 17.04.2000. Aggrieved by the said Order of the Revisional Authority, the petitioner had thematter referred to the first respondent/Labour Court under Section 10 (1) (c) ofthe Industrial Disputes Act, 1947 (“the Act for brevity”). Eventually, the firstrespondent/Labour Court, on appreciation of the entire material, refused tointerfere with the order of the Revisional Authority and thus passed a ‘NIL’

Award on 09.11.2005. Questioning the said Award, the petitioner approachedthis Court by filing the present Writ Petition.

5. In the above factual backdrop, Sri V. Narasimha Goud, learned counselfor the petitioner, has made his submissions primarily on two aspects: therespondent Corporation did not establish the charges during the course ofenquiry; and the authorities have mechanically rendered the major punishmentof removal from service without any application of mind. The learned counsel,as a matter of an alternative submission, contended that the revisionalauthority has no power to impose any punishment, which is not specifiedunder regulations. According to the learned counsel ‘fresh appointment’ is notwithin the purview of the said authority. Elaborating further, the learnedcounsel has submitted that, having found that summary removal is unjustifiedor disproportionate, the revisional authority ought to have reinstated thepetitioner. The learned counsel has thus urged that the order under challengehas been vitiated on both counts.

6. The learned counsel, while submitting his arguments about the merits ofthe matter, has taken this Court through the charges framed against thepetitioner, and also certain observations made in the Award concerning thefindings that have been arrived at during the course of enquiry. The learnedcounsel has laid much stress on the aspect that even the very DisciplinaryAuthority has held that Charge No.3 was not be proved. With regard to othercharges, it is submitted that the driver of the bus, who attested the SpotStatements at the time of check, was examined during the course of enquiry.When he did not support the version of the Management, the Corporation hassimply abandoned the said witness without subjecting him to crossexamination, having called him as a witness on its own. Placing reliance on a judgment in M.V. BIJLANI V. UNION OF INDIA AND OTHERS[[1]],the learnedCounsel has contended that without cross examining any particular witness,when he was called to depose on its behalf, the Corporation cannot jettisonthe witness simply on the premise that the evidence of that particular witnesswould go against it.

7. The learned counsel has also further submitted that there is no truth in the allegation that the petitioner did not cooperate with the Checking Officialsat the time of the check and refused to sign on the spot statements. As it isevident from the explanation submitted by the petitioner at the earliest point oftime, contended the learned counsel, the petitioner only requested theauthorities to provide the substance of the statement of one of the passengers,who gave his statement in Hindi, the language the petitioner has not beenfamiliar with. Taking that as a refusal to comply with the direction of the lawfulauthority, in the words of the learned counsel, cannot be sustained.

8. The learned counsel has further stated that even the driver has initiallyrefused to sign the statements, but later signed under the threat of disciplinaryproceedings. When the driver as a witness before the enquiry officer truthfullyreiterated the same, the authorities have chosen to jettison him, thus not lettinghim to be cross examined. With regard to charge No.2, which containsallegations to the effect that the petitioner collected the requisite fare from twoof the passengers, but did not issue the tickets, the learned counsel hascontended that those passengers have not been examined, and that in theabsence of any convincing material on record, a mere allegation may notsustain itself to establish the misconduct of the petitioner. The learned counselhas further placed reliance on an unreported judgment, dt.22.11.2011 of thisCourt in W.P.No.22365 of 2011, and also a judgment of the Supreme Court in VIJAY SINGH V. STATE OF UTTAR PRADESH AND OTHERS[[2]].With theaid of those decisions, the learned counsel has submitted thatthe disciplinaryauthority does not have the power to impose the punishment, which has notbeen enumerated in the regulations. The effect of those precedents would beconsidered by and by.

9 . Per contra, the learned standing counsel for the respondent hasstrenuously opposed the claims and contentions of the petitioner and hasstoutly supported the award of the first respondent-Labour Court. The learnedcounsel has submitted that the petitioner has been held guilty of not issuingthe tickets after collecting the money, which is nothing but misappropriation ofpublic money. The petitioner has also, contended the learned StandingCounsel, been guilty of insubordination, to wit, not cooperating with the officers on duty at the time of the check.

10. The learned Standing Counsel, having taken the Court through theAward passed by the first respondent, has submitted that the Award does notsuffer from any legal infirmity, such as perversity or any error apparent on theface of the record. They being the essential parameters of judicial review, thelearned Standing Counsel has submitted that the Award in question cannot bedisturbed, more particularly, when it has simply reaffirmed the orders of therevisional authority. As his final submission, the learned Standing Counsel hasstated that the revisional authority has taken a lenient view in accommodatingthe petitioner by way of fresh appointment, despite the said authority holdingthat the charges were proved and no interference was called for.

11. The learned Standing Counsel has further submitted that the disciplinaryauthority has the necessary leeway in the matter of discipline. Merely on thepremise that there could be a possibility of imposing an alternative punishmentbased on the same set of facts, this Court, while exercising the power ofjudicial review, would not upset what are otherwise well established and wellconsidered findings of the disciplinary authority. Summing up his submissions,the learned Standing Counsel has submitted that the award does not call forany interference of this Court.

12. Heard the learned counsel for the petitioner and the learned StandingCounsel for the respondent Corporation, apart from perusing the record.

13. To appreciate the rival contentions, it is essential to extract the chargesthat have been framed against the petitioner through Charge sheet dated24.02.1999. The said Charges are as follows:

“ 1. For having failed to observe the TIC point at SP Nagarstage No.12.

2. For having failed to issue tickets to a batch of Twopassengers found alighting without tickets at Moulali, stageNo.12/11 having boarded your bus at Kamalanagar stageNo.13/12, eventhough you have collected Rs.2/- each atboarding point itself as against the actual fare of Rs.2.25 ps.each.

3. For having failed to close the tray No. of Rs.2.00,Rs.2.25, Rs.2.50, Rs.2.75, Rs.3.00 denomination from stage No.12 to 11 in the SR.

4. For having refused to attest the passengers statementobtained by the TTIs from the passengers and 43R, 353issued by the TTIs”.

5. For having failed to cooperative with TTIs and creatednuisance and caused much delay to the travellingpassengers.

1 4 . Admittedly, charge No.3 has been held not proved. Initially theDisciplinary Authority, through its Order dated 16.08.1999, inflicted the majorpunishment of removal of the petitioner from service; later the AppellateAuthority refused to interfere with it, and accordingly dismissed the appealthrough Order dated 17.12.1999. Eventually when the matter was taken inrevision, the third respondent passed orders on 17.04.2000 directing theCorporation to appoint the petitioner as a fresh conductor. Having not beensatisfied with the revisional order, the petitioner raised an industrial dispute byway of reference under Section 10 (1) (c) of the Act.

15. This Court is conscious of the fact that once the disciplinary authorityhas rendered certain findings and subsequently they have come to bemodified or interfered with in the intra-departmental proceedings, it may not bedesirable for this Court to re-appreciate the findings. Having said that, still thisCourt is required to address a couple of issues, which essentially involve thegravity of the punishment i.e., proportionality of the punishment inflicted by therespondent authorities. In other words, whether, while imposing thepunishment even in the modified form, the authorities have omitted to take intoaccount any material on record, or considered any material which was not onrecord or, still, omitted to consider the impact of any material aspect of thecase, would be the question this Court in judicial review poses unto itself.

16. As has rightly been contended by the learned counsel for the petitioner,the singular evidentiary aspect that weighed with the authorities is thestatement of the driver, who was examined as a witness at the behest of theManagement. Without any fear of contradiction, it can be stated that the saidwitness did not support the case of the Management, and on the other hand,he has stated that he was constrained under the threat of disciplinary proceedings to sign on the spot statements obtained during the course ofcheck. Once he has not supported the case of the Management, he ought tohave been declared hostile and ought to have been subjected to crossexamination even by the very Corporation. But, the said witness was simplygiven up by the Management. This course ought to have taken recourse to, ifnot under the provision of the Evidence Act, which has no application, at leastas a matter of equity.

17. In support of the above plea, the learned counsel for the petitioner hasplaced reliance on M.V.Bijlani’s case (1 supra), wherein his Lordship has heldin para No.21 as follows:

“While making the enquiry as against the appellant, theenquiry officer made adverse comments about thecorrectness or otherwise of the statements made by thewitnesses examined on behalf of the department withoutassigning any reason therefore. They were examined by thedepartment. If they deposed falsely, they should have beencross examined. Only because their evidence was totallyagainst the department, the same per se would not mean thatthey deposed falsely”.

18. With regard to Charge No.2, though the passengers during the course ofspot statements deposed that they paid the fare, but were not given the tickets,their evidence remained uncorroborated during the course of the departmentalenquiry. During the course of his explanation, the petitioner has stated thatthough he gave the tickets to them after collecting the fare, and at the time oftheir alighting, they did not produce the tickets for checking, but pleaded thatthey lost the tickets. He has further stated that threatening them with penalty,the checking officials obtained signed statements from the said passengers tothe dictation of the very officials.

19. If it is a case of not issuing the ticket after collecting the fare, there oughtto have been difference in the SR. In other words, fewer tickets ought to havebeen issued by the petitioner than the actual number of passengers. From theexplanation of the petitioner, which does not seem to have been contradicted,the checking officials did not check the SR, rather refused to check it. Withoutfurther ado, it can be said that it is not a case of ticketing irregularity; it is a caseof the passengers not producing the tickets on demand, for the authorities have not found any discrepancy in the ticketing position as reflected in SR.

20. Concerning the charge of the petitioner’s refusing to sign the spotstatement of the passengers, there was a semblance of justification on the partof the petitioner, who stated that since the statements were given in Hindi,which is unknown to him, he only requested the authorities for the substance ofthe statement to be given in Telugu before he could sign it.

21. Now, the above issues having been answered thus, it leaves us withonly one aspect, i.e., to examine whether the punishment imposed on thepetitioner would be sustained. In this regard, what is required to be examinedis, apart from the disproportionality, as has been contended by the learnedcounsel for the petitioner, whether the authorities have power to imposepunishment which has not been enumerated in the regulations. In the firstplace, one has to ascertain whether such a punishment has, in fact, beenimposed. A perusal of the order would amply indicate that in the first place therevisional authority has confirmed the punishment imposed by the disciplinaryauthority, in line with the appellate authority. Despite that, the revisionalauthority has taken a lenient view, given the past conduct of the petitioner,whose services are said to have been without blemish, and has accordinglydirected the authorities to appoint the petitioner afresh.

22. After the confirmation of the punishment imposed by the primaryauthority, taking a lenient view and providing employment afresh cannot betermed as imposing punishment, much less an unennumerated punishment. Iventure to add that, while the confirmation of punishment on the delinquent inrevision in a quasi-judicial function, the action of the revisional authoritydirecting the appointment of the delinquent as a fresh candidate is by way ofexercise of his executive power. As such, I fail to persuade myself to acceptthe contention of the learned counsel for the petitioner that the Order of theRevisional Authority suffers on account of imposing punishment beyond thescope of the regulations. In fact, the decision cited by the learned counsel forthe petitioner at the bar - the Order dated 22. 11.2011 in W.P.No.22365 of 2011rendered by a learned Single Judge - does not deal with that aspect of non-enumerated punishment, though the relief granted is substantially similar in both cases. In the said case the revisional authority set aside the order ofremoval of the Petitioner therein and directed his reinstatement as fresh driveron regular basis but without continuity of service and back wages. In thatcontext, his Lordship has observed:

“There is no doubt that the rules and regulations of the Corporation donot provide for reinstating him into service as fresh driver.”

23. At any rate the awarding of unenumerated punishment has not fallen forconsideration. Even otherwise, it is too well established to be restated that thatthough an issue may have incidentally fallen for consideration, once judicialcognizance has not been taken of it, the decision rendered on that aspect issaid to have been rendered sub silentio. Accordingly, for whatever reason,except to see the parity in conclusion, the said decision may not be aprecedent to persuade myself to take the same line.

2 4 . We may as well examine another decision of this Court inK.C.NARAYANA V. MANAGING DIRECTOR, APSRTC, HYDERABAD

AND OTHERS[[3]].His Lordship Sri Justice Ramesh Ranganathan in that case has observed in para No.2 the factual aspects, which are as follows:

“Petitioner a conductor in A.P.S.R.T.C., alleged to have driventhe bus unauthorisedly on 13.12.1975 resulting in an accident,was removed from service. The appeal preferred by him wasrejected by the Regional Manager and thereafter he preferreda Review Petition to the Chief Traffic Manager. The ChiefTraffic Manager, in his proceedings dated 18.11.1977,appointed him as a conductor afresh. Aggrieved thereby, thepetitioner filed a revision to the 1st respondent on 6-3-1981,but his revision was rejected by the 1st respondent byproceedings dated 16.10.1981. Aggrieved thereby he filedW.P. No. 24155 of 1996 and this Court by order dated14.11.1996 held that the reasons given by the ReviewingAuthority, in dismissing the Review Application, was notcorrect and that as a matter of fact the petitioner wasdismissed from service as he was driving an A.P.S.R.T.C.Bus without any valid license. This Court directed theauthority to consider the case of the petitioner on merits bylooking into the entire record, within a period of two months”.

In that factual back drop, his Lordship has further observed in para 6 of thejudgement:

“Since the question raised in this writ petition, whether apunishment not prescribed under the statutory regulationscould be imposed on a delinquent employee, is a matterwhich would affect a large number of employees, at therequest of this Court, Sri M. Panduranga Rao, learnedCounsel appeared as amicus curiae. Learned Counsel wouldpunishment not prescribed under the statutory regulationscould be imposed on a delinquent employee, is a matterwhich would affect a large number of employees, at therequest of this Court, Sri M. Panduranga Rao, learnedCounsel appeared as amicus curiae. Learned Counsel would submit that the judgment of this Court in G. Sambasiva Rao'scase (supra), was no longer good law in view of the laterjudgment of the Supreme Court in State Bank of India andOrs. v. T.J. Paul. Learned Counsel would submit that sincethe Regulations governing employees of the A.P.S.R.T.C., arestatutory in nature, the competent authority, while exercisingthe quasi-judicial powers conferred on him under the statutoryrules, was required to strictly adhere to the statutory rulesand, since the nature of punishment to be imposed has beenspecifically enumerated therein, it was not open to thedisciplinary/appellate/reviewing authorities to deviatetherefrom or to impose a punishment not specifically providedfor under the statutory regulations.”.

In the light of the above finding, his Lordship directed the reinstatementof the petitioner therein.

25. Essentially a mere perusal of the above decision would indicate that inthe said case, the order of punishment was set aside. In the name ofmodification of the punishment, instead of reinstatement, fresh appointmentwas ordered. Reinstatement and fresh appointment being two different modesof bringing the delinquent back in to the fold of service, the latter is moredisadvantageous and thus can be termed as a punishment, being a lesserbenefit. Under those circumstances it is held that such an unenumeratedpunishment has not been contemplated in the regulations. Even in the matterof Vijay Singh’s case, their Lordship have observed in para No.11, which is as follows:

“Admittedly, the punishment imposed upon the appellant is notprovided for under Rule 4 of the 1991 Rules. Integrity of aperson can be withheld for sufficient reasons at the time offiling up the annual confidential report. However, if thestatutory rules so prescribe, it can also be withheld as apunishment. The order passed by the disciplinary authoritywithholding the integrity certificate as a punishment fordelinquency is without jurisdiction, not being provided underthe 1991 Rules, since the same could not be termed aspunishment under the Rules. The Rules do not empower thedisciplinary authority to impose “any other” major or minorpunishment. It is a settled proposition of law that punishmentnot prescribed under the Rules as a result of disciplinaryproceedings cannot be awarded”.

In the said case as well, a punishment was imposed which was notenumerated. As the authority was not vested with the power to go beyond theenumerated categories of punishment, the action of the authorities was held tobe bad. In any event, insofar as the present factual scenario is concerned, thepunishment that has been imposed by the primary authority was not disturbed by revisional authority. But, going beyond the punishment, the authority hastaken a lenient view, given the past record of the delinquent workman, andaccordingly ordered a fresh appointment, which cannot be found fault with. Tothat extent, it is held that the respondent authorities do have such power as toprovide fresh appointment, despite the punishment attaining finality.

26. The subsequent fresh appointment being of no consequence, thequestion that still remains to be answered is the proportionality of punishmentof removal. It is a truism to state that doctrine of proportionality has come to bewell established as one of the composite principles of natural justice, apartfrom being a facet of the all-pervading Article 14 of the Constitution of India, àla arbitrariness. In the present case neither of the substantive charges can besaid to have been proved; in fact, much is left to be desired to bring home themisconduct of the petitioner. Accordingly, it is deemed desirable that the orderrequires to be modified to that extent.

27. On the count of disobeying the orders of the lawful authority, thepetitioner cannot be said to be entirely blameless. Even if the statements of thepassengers were in Hindi, the petitioner could have attested them underprotest. Further, the explanation submitted by the petitioner for non-closure ofSR is not eminently excusable. On these two counts, the petitioner may haveto be punished.

28. Therefore, the Award of the Labour Court, the Order, dt.17.04.2000 of theRevisional Authority having merged in it, is modified to the following effect:The order of removal from service, dt.16.08.1999, as confirmed by thesubsequent authorities and the Labour Court, is set aside. The respondentCorporation is hereby directed to reinstate the petitioner with continuity ofservice, the reinstatement taking effect from the date of removal from service. Itis, however, made clear that, on the Corporation’s treating the removal periodas not spent on duty, the petitioner shall not be entitled to any monetary orother benefits prior to his reinstatement. It is further made clear that since thecontinuity of service has been granted, the petitioner is entitled to whateverstatutory benefits he is otherwise entitled to.

With the above direction, the Writ Petition is disposed of. There shall beno order as to costs. Miscellaneous Petitions, if any, pending in this writpetition, shall stand closed.

________________________

DAMA SESHADRI NAIDU,

J

Dt.31.12.2013.

Note: L.R. copy to be marked.

eha

[1](2006) 5 SCC 88(2006) 5 SCC 88

[2](2012) 5 SCC 242(2012) 5 SCC 242

[3]2007(5) ALD 416