WP/2777/2003 of S.SATHAIAH Vs THE MD. APSRTC. MSRD. HYD AND 3 ORS on 31 December 2013

ORDER:

The sole petitioner sought for a Writ of Mandamus toset aside the award of the Labour Court-II, Hyderabad inIndustrial Dispute (I.D.) No.207 of 1999, dated09.10.2002. As this is a Writ to quash the award, it oughtto have been a Writ of Certiorari, instead of Mandamus.

2. The petitioner was appointed as a Conductor inthe Andhra Pradesh State Road Transport Corporation(Corporation, for short) on 13.02.1985. On 24.11.1996 he was acting as Conductor of shuttle service betweenChincholi and Zaheerabad. A checking was organized atabout 9.45 p.m. The petitioner allegedly was foundindulging in cash and ticket irregularities.

On 28.11.1996 suspension order was issued.

The petitioner claimed that he failed to participate in theenquiry as subsistence allowance was not paid during theperiod of suspension and the petitioner was permitted toengage the services of co-employee to defend him.

3. The petitioner filed representations on06.03.1997, 18.03.1997 and 05.06.1997 seeking certaindocuments, seeking permission to engage one of the co-employees to defend him and seeking to conduct theenquiry in Telugu. The Corporation paid a deaf ear to therepresentations. As subsistence allowance was not paidto the petitioner and as the proceedings were conductedin English, which is an alien language to the petitioner, thepetitioner chose to approach this Court through WritPetition No.12215 of 1997. The writ petition was disposedof on 31.07.1997 directing the Corporation to furnish thedocuments sought for by the petitioner and to conduct theproceedings in Telugu.

4. However, the ex parte proceedings took placehaving commenced on 11.09.1997, concluded on06.10.1997. The petitioner was found guilty. Afterfollowing the procedure, the petitioner was dismissed from service on 25.06.1998. present writ petition is laid.

Questioning the same, the

5. Four charges were framed against the

petitioner. The charges read:

a)For having failed to issue tickets to a batch of ten (10)passengers found travelling without tickets even aftercollecting the requisite fare of Rs.2.25 from each at theirboarding place itself, who boarded the bus at Fatehpurand bound for Kusumrampally ex-stages 9/9 of 7.passengers found travelling without tickets even aftercollecting the requisite fare of Rs.2.25 from each at theirboarding place itself, who boarded the bus at Fatehpurand bound for Kusumrampally ex-stages 9/9 of 7.

b)For having failed to collect the fare and issue tickets to abatch of ten (10) passengers found traveling withouttickets who boarded the bus at Chincholi and bound forGudipally ex-stages 10 to 6/5.batch of ten (10) passengers found traveling withouttickets who boarded the bus at Chincholi and bound forGudipally ex-stages 10 to 6/5.

c)For having violated the rule “issue, complete and start.

d)For having failed to close the ticket, Nos., of alldenominations in the service statistical return from thestage No.10 to the place of check i.e., stage No.8.denominations in the service statistical return from thestage No.10 to the place of check i.e., stage No.8.

6. Two batches of 10 passengers each areinvolved in this case. It is the case of the Corporation thatat the time of the checking, there were only 20passengers in the bus and that it is preposterous to claimthat the petitioner could not issue tickets even to such asmall group of passengers travelling in the bus. On theother hand, it is the case of the petitioner that shortly afterthe bus reached Chincholi, a group of 10 passengersboarded the bus in a drunken condition and that theywere all confusing themselves and the petitioner as towhich member of the group should purchase tickets forthe group. It is the claim of the petitioner that each member of the group was directing the other members ofthe group to purchase tickets and in the process no onewas tendering money for the tickets. He furthercontended that while the petitioner was trying to procurefare from the group so as to enable him to issue tickets,the bus reached the stage No.9, which was the next stagewhere another group of 10 passengers boarded the bus.

7. The second group of 10 passengers was notan unruly crowd according to the petitioner. The petitionerclaimed that he was about to issue tickets to the secondgroup and that the checking staff entered the bus in themeanwhile. The contention of the petitioner that the firstgroup of 10 passengers was in a drunken state is fortifiedby the checking staff themselves who admitted at the timeof the enquiry that some of the passengers were indrunken state. Their case is that the petitioner ought tohave collected fare from the passengers, or should havedisembarked them or should have handed over the unrulypassengers to the police for appropriate action and thatthe failure of the petitioner to resort to these methods shallconstitute misconduct on the part of the petitioner.

8. The learned counsel for the petitioner inter aliacontended that the charges were vague, so much so,there is no possibility for the petitioner to respond to thecharges. The charges had already been extracted. I amafraid that the charges are not vague. Indeed, the charges do not speak as to the place and time of theincident, but the same has been contextually understood. There is no dispute that the charges relate to the serviceof the bus from Chincholi to Zaheerabad during theevening shift of 24.11.1996. I, therefore, reject thecontention of the learned counsel for the petitioner that thecharges are vague to such an extent that the veryenquiry, enquiry report and consequential proceedingsare bad and are liable to be set aside.

9. An important aspect in this case is CircularNo.32/91-OPD(C), dated 24.09.1991 issued by theCorporation. Undoubtedly, the circular is not a statutorycircular. However, as the same was issued by theCorporation, it is binding on the Corporation.

The learned counsel for the petitioner placed heavyreliance upon the provisions of the circular.

10. In Para-VI of the circular dealing with “DomesticEnquiry Proceedings”, it was stated that the enquiryproceedings shall be conducted in Telugu, that the copiesof the statements should be furnished to the delinquentimmediately and that the witnesses cited by thedelinquent should be examined. It is evident that thewhole domestic enquiry was conducted in English. This isdespite the fact the petitioner approached this Court inW.P.No.12215 of 1997, inter alia, claiming that the

petitioner did not know English. I am afraid that thedomestic enquiry proceedings conducted by the EnquiryOfficer against the circulars of the Corporation itself arevitiated as not in accordance with the Rules. Added to it,principles of natural justice contemplate that the enquiryshould be conducted in a manner understandable to thedelinquent and not in such a way that the delinquent is notable to follow the same. When the petitioner repeatedlyurged that he did not know English and that theproceedings be conducted in Telugu, continuing toconduct the proceeding in English is violation of theprinciples of natural justice. Even on this ground, theenquiry report is liable to be set aside.

11. The learned counsel for the petitioner alsoplaced reliance upon Para-II of the circular dealing with“checking system”. It was envisaged that the checkingofficials should try to collect independent evidence offellow passengers and should record the full address ofthe passengers connected with the irregularity. It wasalso ordained that if it is established that the ticket issuedwas lost by the passenger, the passenger travellingwithout ticket should be punished to purchase freshticket. It is the contention of the learned counsel for thepetitioner that there is no whisper from the checkingofficials that the 10 drunken passengers were not made topurchase tickets nor was any fine imposed against them for travelling in the bus without purchasing tickets. It iscontended by the learned counsel for the petitioner thateven the checking officials could not deal with the groupof drunken passengers, so much so, it is unjust to acceptthe petitioner to deal with them single handedly while thebus was operating. At any rate, admittedly, thepassengers were not made to purchase fresh tickets. Consequently, the claim of the petitioner is feasible andprobable.

12. The learned counsel for the petitioner pointedout that the Labour Court-II considered the past conductof the petitioner as a ground to dismiss the reference. I may point out that in para-2 of the award, there is areference to the past conduct of the petitioner. However, itis with reference to the allegations in the counter of theCorporation before the Court and not the finding of theCourt. The learned counsel for the petitioner submittedthat the charges have not been proved against thepetitioner.

13. There is no dispute that 10 passengersboarding at stage No.10 and 10 passengers boarding atstage No.9 were not issued tickets. However, it is thecase of the petitioner that the non-issuance of the ticketwas not out of the negligence, carelessness or any malafidies; but, owing to the unruly behaviour of thepassengers who boarded the bus at stage No.10.

Admittedly, there is no allegation of misappropriation.

In the Circular referred to at Para-VII dealing with“disciplinary action and penalties”, it was mentioned thatthe extreme penalty of removing from service should beimposed in case of serious cash and ticket irregularitiessuch as re-issue of tickets, sale of fake tickets,unconcerned tickets, alterations in statistical return, waybill and the like. It is the contention of the learned counselfor the petitioner that the petitioner allegedly did notcommit any of these irregularities, so much so, thedismissal or removal of the petitioner from service is notpermissible even according to the circular of theCorporation itself.

14. In K. Chattopadhyaya v. Government of Andhra

Pradesh[[1]], the facts were fairly similar.

A passenger was found without ticket at the time of thecheck. The delinquent-conductor contended that thepassenger was in a drunken state. The claim of theconductor was supported by the checking staffthemselves. The Court held that it was not a case wherethe conductor collected the fare, but failed to issuetickets. It was an added factor that fine was collected fromthe passenger by the checking officials. Holding that thedrunken passengers were travelling in the bus withouttickets, without the fault of the conductor in any manner, alearned single Judge of this Court set aside the order of the Labour Court. Regarding the scope of Article 226 ofthe Constitution of India in respect of charges of theLabour Court, it was observed “The scope and jurisdiction of this Court under Article226 of the Constitution of India to interfere with the awardof the Labour Court is very limited. All the same, anaward, which is patently perverse, cannot be permitted toremain and the employee cannot be made to suffer. ThisCourt is of the view that at the most the petitioner can besaid to have been negligent in collecting the fare from thepassenger. Even if the latter was in drunken condition,he ought to have either made him to get down or to takehim to the nearby police station. It appears that he wasin the process, but the check took place in themeanwhile.”

15. It is contended by the learned counsel for thepetitioner on the basis of this decision that the order of theLabour Court in confirming the order of dismissal withoutany evidence is perverse and is liable to be set aside.

16. In Sawai Singh v. State of Rajasthan[[2]], where the charges in a departmental enquiry were vague andevidence was not sufficient to connect the charged officerwith the alleged misconduct, the enquiry report was heldto be vitiated by non-compliance with the principles ofnatural justice. The order of removal from service was,consequently, held to be invalid. It is contended by thelearned counsel for the petitioner that there is no evidencein this case pointing out the guilt of the petitioner and thefinding of the Enquiry Officer is liable to be set aside andthe finding of the Tribunal confirming the enquiry report is also liable to be set aside as perverse.

17. I n Depot Manager, APSRTC, Bus Depot, Narayankhed v. R. Bheemaiah[[3]] and in Polam Chenna Reddy

v. Industrial tribunal-cum-Labour Court, Warangal[[4]], learnedsingle Judges of this Court held that the constitutionalcourt is entitled to interfere with the findings where thepunishment imposed is disproportionate to the provenmisconduct. It is contended by the learned counsel for thepetitioner that there is no misconduct on the part of thepetitioner and that assuming that the non-issuance oftickets is treated as misconduct despite the circumstancesof the case, there was no allegation of misappropriationand that the imposition of the penalty of dismissal isshockingly disproportionate to the alleged or provenmisconduct.

18. In view of the defence of the petitioner and inview of the admission from the checking officials that 10 ofthe passengers were under drunken state, I consider thatthe very explanation offered by the petitioner is quiteagreeable and deserves to be accepted. Once theexplanation of the petitioner is accepted, the very chargesare disproved. I, therefore, consider that the enquiryreport as confirmed by the Tribunal is perverse and isliable to be set aside. It would appear that the petitionerwould have attained superannuation in May, 2013.

The question of ordering reinstatement of the petitioner,therefore, does not arise. However, where charges arenot proved against the petitioner, it would be appropriateto set aside the dismissal/removal order and deem itappropriate to consider that the petitioner was in servicetill the date he attained the superannuation. The petitioner,consequently, shall be entitled to continuity of service andattendant benefits, albeit he shall not be entitled to backwages from the date of his removal from service.

19. Accordingly, the writ petition is allowed.

The award of the Tribunal in I.D.No.20 of 1999 dated09.10.2002 is set aside. The finding of the Enquiry Officerthat the petitioner is guilty of the charges is also set aside.Consequently, the punishment of dismissal/removal of thepetitioner from service is set aside. The petitioner isdeemed to be in service from the date of his removal tillthe date he attained superannuation. He accordingly isentitled to continuity of service and attendant benefits. However, he shall not be entitled to back wages duringthe period he was out of employment. No costs. Miscellaneous Petitions, if any, pending in this writ petitionshall stand closed.

___________________

Dr. K.G. Shankar, J

Date: 31.12.2013Isn

[1]2011 (1) ALD 382011 (1) ALD 38

[2](1986) 3 SCC 454(1986) 3 SCC 454

[3]2010 (4) ALD 1932010 (4) ALD 193

[4]2009 (5) ALD 2932009 (5) ALD 293