Allowed

P.Lakshumaiah v. It Cum Lc Ananthapur and Another

Telangana HC13 Jul 2011WP/11022/2002

Case brief

AI extract

What is this about?

The petitioner, a bus conductor, was terminated for alleged ticket re-issuance. The Writ Court set aside the Tribunal's confirmation of dismissal, finding the findings perverse as a management witness admitted in cross-examination that no unconnected tickets were found, contradicting the misconduct charge.

What did the court decide?

Petitioner reinstated into service with continuity of service and without back wages.

P.Lakshumaiah Vs It Cum Lc Ananthapur and… — Labour and Industrial Disputes | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE G.CHANDRAIAH

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W.P.NO.11022 OF 2002

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O R D E R

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Heard both the counsel.

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2. The petitioner was working as Conductor in the respondent – Corporation in the Kadapa Depot, prior to his termination. While he was conducting the bus on 8.6.1997 on the route Pendlimarri – Kadapa, a surprise check was exercised by the Regional Enforcement Squad, Kadapa and it was alleged that there were certain cash and ticket irregularities. The petitioner was issued charge memo and he submitted his explanation and not being satisfied with the same, domestic enquiry was conducted and the petitioner was found guilty and terminated from service by order dated 7.1.1998 and the subsequent appeal and review filed by him ended in rejection. Aggrieved by the same, he raised I.D.No.313/1998 on the file of Industrial Tribunal-cum-Labour Court, Anantapur and by the impugned award dated 19.9.2001, the Tribunal dismissed the I.D. and confirmed the order of dismissal. Hence, the present writ petition.

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3. The learned counsel for the petitioner vehemently contended that the Tribunal has not appreciated the material evidence on record and in a mechanical manner, confirmed the findings of the enquiry officer. The charges against the petitioner were that he re-issued the tickets, which were already issued in the earlier trip. The petitioner has specifically denied the said charge and the case of the petitioner is that he has not re-issued the tickets and the passengers during the check, has shown the tickets which are on the floor and that they neither paid the amount, nor purchased the tickets. The learned counsel for the petitioner stated that during the course of cross-examination before the enquiry officer, the management witness has specifically admitted that during the course of check, the petitioner was not having unconnected or old tickets. He also admitted that the petitioner has stated that during the check that he has neither issued the tickets nor collected the amount. Therefore, he contended that the Tribunal without considering the material evidence on record, failed to reverse the findings of the enquiry officer and this amounts to perversity and the same has to be set aside by this court under the writ jurisdiction. With these contentions, he sought to set aside the impugned award.

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4. On the other hand, the learned Standing Counsel for the Corporation supporting the impugned award, sought for dismissal of the writ petition.

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5. In order to appreciating the respective contentions, it is necessary to first

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note the charges against the petitioner as under:

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1. For having collected the requisite fare of Rs.45/- from a batch of 10 passengers who boarded your bus at Mittamidapalli and bound for Kadapa, ex-stages 5 to 1 and issued ticket nos.104/568707 to 710, 104/568713 to 716 and 104/568721 to 732 of Rs.4-50 denm. total ten tickets which were already issued and accounted in 5-30 hrs., Yerranguntla – Kadapa trip, vide S.R.No.A4/1461719 and punching ticket nos.568707 to 710 i.e., 4 tickets on 6 and 2 stages and the remaining six tickets on stage numbers 5 and 1, while conducting the bus on route Pendlimarri – Kadapa on 8.6.97, which constitutes misconduct under Reg.28(xxiii) of APSRTC Employees (Conduct) Regulations, 1963.

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2. For having collected the requisite fare of Rs.22/- from a batch of four passengers who boarded your bus at Pendlimarri and bound for Kadapa ex-stages 6 to 1 and issued tickets nos.11/825307, 308, 312 and 319 of Rs.550 denm., total four tickets, which were already issued and accounted in 5-30 hrs. Yerranguntla – Kadapa trip, vide S.R.No.A4/1461719 dated 8-6-97, which constitutes misconduct under Reg.28(xxiii) of APSRTC Employees (Conduct) Reg. 1963.”

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6. The charges against the petitioner were that he re-issued the tickets to a batch of passengers and collected the fare, which tickets were already issued in the previous trip. The petitioner has specifically denied the charge. During the course of check, the case of the petitioner is that he required the checking officials to check the cash bag, to prove that he has not received the fare and that his case is that the passengers out of fear has shown the tickets collecting from the floor on the bus. The petitioner has deposed to this effect in his examination before the enquiry officer. In the cross-examination of the management witness, he could elicit the fact that during the course of check, the officials have not found any unconnected or old tickets. The case of the petitioner from the beginning is that he has neither issued the tickets nor collected the face. The management witness in the crossexamination also admitted that the petitioner during the course of check has specifically stated that he has neither issued the tickets nor collected the amount. These admissions of the management witness in the cross-examination, shows

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that the petitioner has not re-issued the tickets which were issued in the earlier trip and also has not collected the amount, since the checking officials could not find any unconnected or old tickets with the petitioner. Therefore, the findings of the enquiry officer, without noticing the crucial admission of the management witness – TTI in the cross-examination, is perverse and the Tribunal also oblivious of this material evidence, confirmed the findings of the enquiry officer and the same needs to be set aside.

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7. The Apex Court in WORKMEN vs. FIRESTONE TYRE AND RUBBER

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CO. OF INDIA (PVT) LTD^[1] , with regard to jurisdiction of the Tribunal while adjudicating the disputes relating to dismissal or discharge, held as under:

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“31. We have exhaustively referred to the various decisions of this Court, as they give a clear picture of the principles governing the jurisdiction of the Tribunals when adjudicating disputes relating to dismissal or discharge.

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32. From those decisions, the following principles

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broadly emerge:

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(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.

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(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable and principles of natural justice. The enquiry should not be an empty formality.

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(3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimization, unfair labour practice or mala fide.

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(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.

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(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the

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misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.

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(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.

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(7) It has never been recognize that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.

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(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.

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(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimization.

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(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate v. The Workmen {(1971)1 SCC 742} within the judicial decision of a Labour Court or Tribunal

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8. In another decision reported in M/S BHARAT IRON WORKS vs.

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BHAGUBHAI BALUBHAI PATEL AND ORS .^[2] the Apex Court held as under:

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3. There is two-fold approach to the problem and if lost sight of, it may result in some confusion. Firstly, in a case where there is no defect in procedure in the course of a domestic enquiry into the charges for misconduct against an employee, the tribunal can interfere with an order of dismissal on one or other of the following conditions:

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(1) If there is no legal evidence at all recorded in the domestic enquiry against the concerned employee with reference to the charge or if no reasonable person can arrive at a conclusion of guilt on the charge leveled against the employee on the evidence recorded against him in the domestic enquiry. This is what is known as a perverse finding.

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(2) Even if there is some legal evidence in the domestic enquiry but there is no prima facie case of guilt made out against the person charged for the offence even on the basis what the

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evidence so recorded is reliable. Such a case may overlap to some extent with the second part of the condition No.1 above. A prima facie case is not, as in a criminal case, as case proved to the hilt.

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9. From the above guidelines as enunciated by the Apex Court it is clear that though the right to take disciplinary action and the decision with regard to quantum of punishment are within the domain of managerial functions, the Tribunal has power to see whether the action of the employer is justified or not and further in the domestic enquiry, if the findings of misconduct are based on evidence, the Tribunal has no jurisdiction to interfere with the same and on the other hand, if such findings are perverse, or based on no evidence, or that no prudent man would arrive at based on such evidence or material on record or the management is found to be guilty of victimization, unfair labour practice or mala fide, the Tribunal will have jurisdiction to interfere with the findings of the enquiry officer in the domestic enquiry.

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10. In the present case, as already noted above, the enquiry officer recorded finding of fact without taking into account the admission of the management witness in the cross-examination and the Tribunal also without considering the same, confirmed the finding of the enquiry officer with regard to the guilt of the petitioner. This amounts to perversity and the same needs to be interfered with by this court under the writ jurisdiction.

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11. Accordingly, for the foregoing reasons, the finding of the Tribunal in confirming the findings of the enquiry officer in holding the petitioner guilty of the charges, is set aside and the consequently, the impugned award is also set aside.

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12. In the result, the writ petition is allowed and the respondents are directed to reinstate the petitioner into service with continuity of service and without back wages. No costs.

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AVS ----------------------13—07—2011

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[1] (1973)1 SCC 813

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[2] (1976)1 SCC 518

P.Lakshumaiah v. It Cum Lc Ananthapur and Another

Case brief

What is this about?

What did the court decide?

P.Lakshumaiah v. It Cum Lc Ananthapur and Another

Case brief

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