Dismissed

The Divisional Manager, Apsrtc, v. Sri. Ameer Beig

Telangana HC21 Jul 2011WP/19929/2008

Case brief

AI extract

What is this about?

Writ petition dismissed. The Court held that no limitation is prescribed under Section 10(1)(c) of the Industrial Disputes Act for making a reference. Consequently, the Labour Court was not barred by the eleven-year delay from adjudicating the dispute and confirming the award regarding continuity of service.

What did the court decide?

Writ petition dismissed; Labour Court award confirmed; no order as to costs.

The Divisional Manager, Apsrtc, Vs Sri. Ameer Beig — Service and Employment | Telangana HC (2011)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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THURSDAY, THE TWENTY FIRST DAY OF JULY TWO THOUSAND AND ELEVEN

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PRESENT

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THE HONOURABLE SRI JUSTICE G.CHANDRAIAH

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W.P. No.19929 of 2008

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Between:

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The Divisional Manager, A.P.S.R.T.C., Medak Division, Sangareddy, Medak District. … Petitioner and

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Sri Ameer Beig and another … Respondents

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THE HONOURABLE SRI JUSTICE G.CHANDRAIAH

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W.P. No.19929 of 2008

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ORDER:

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This writ petition has been filed by the Corporation seeking for issuance of Writ of Certiorari calling for the records relating to the impugned Award dated 22.06.2007 made in I.D. No.104 of 2005 on the file of the Labour Court – II, Hyderabad published vide G.O.Rt. No.1625, Labour Employment Training and Factories (LAB.I) Department, dated 16.07.2007, which was published on the notice beard on 11.09.2007 and setting aside the same in appellate order dated 09.03.1994 and directing the petitioner herein as the respondent No.1 is entitled to continuity of service for the calculation of his future emoluments and he is entitled to the increments on the basis of continuity of service, as illegal, arbitrary and unjust and consequently quash the same.

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The writ petitioner herein is the A.S.R.T.C., Corporation, and the 1^st respondent is the workman.

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Brief facts of the case are that the workman joined in the Corporation as Conductor on 08.05.1991. While performing his duty on 21.08.1993, a check was exercised and detected certain serious ticket irregularities and issued the charge memo dated 21.08.1993 framing the following charges, which reads as under:

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“1. For having failed to observe the rule of issue and start, which constitutes misconduct under regulations 28(xxxii) of APSRTC Employees conduct

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Regulations 1963.

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2. For having failed to collect the fare and issue ticket to a passenger found traveling without ticket, who boarded bus at Almaipet and bound for pulkal Ex.stages 8 to 14. Hence, he was made to collect the requisite fare of Rs.5.25 ps and obtained TPT No.008/160214 of Rs.5.25 ps combination, which constitutes misconduct under Regulation 28 (vi-a) of APSRTC Employees Conduct Regulations, 1963.

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3. For having closed SR upto stage No.12 without completing the above issues, less passengers total members of passengers at the time of check is 9+1=10 in all, which constitutes misconduct under Regulations 28(xxv) of APSRTC Employees Conduct Regulations, 1963.”

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Pursuant to the said charges, the workman was issued show cause notice for which, he submitted his explanation and ultimately vide Proceedings dated 08.11.1993 of the Depot Manager, he was terminated from service. Thereafter, he filed an appeal before the Divisional Manager and the Divisional Manager vide order dated 09.03.1994 modified the order of termination to that of reinstatement into service as fresh Conductor subject to medical fitness and thereby he is not entitled to any past service and other monetary benefits. Consequent to the modified order,

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the workman reported for duty. Thereafter, he filed a claim petition under Section 10(1)(c) of the Industrial Disputes Act, 1947 (Central Act 14 of 1947, (for short ‘the Act’). The said claim petition was considered by the Government and referred the dispute for adjudication to the Labour Court.

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The dispute for adjudication before the Labour Court was that “Whether the action of the Divisional Manager, APSRTC, Medak Division, Sangareddy is justified in imposing the punishment against Sri Ameer Beig, Conductor, E.No.96767 that he is reinstated into

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service as a fresh conductor and he is not entitled for any past service and any monetary benefits vide Proceedings No.PA/20(102).93 DVM:SRD dated 09/3/1994.”

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The said dispute was number as I.D. No.104 of 2005 on the file of the Labour Court – II, Hyderabad.

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The Labour Court, after considering the evidence on record and also the facts and circumstances of the case, held that the workman is entitled to continuity of service for the calculation of his future emoluments and he is entitled to the increments on the basis of continuity of service. Aggrieved by the same, the Corporation filed the present writ petition.

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The learned standing counsel appearing for the petitioner Corporation would submit that the workman having accepted the order dated 09.03.1994 of the Divisional Manager, who ordered for reinstatement of the workman into service as a fresh Conductor without continuity of service and without back wages, after a lapse of eleven years, he raised industrial dispute and the Labour Court without considering the delay on the part of the workman and without considering the charges leveled against him were proved, granted the relief of continuity of service for the calculation of his future emoluments and with entitlement of the increments on the basis of continuity of service, which is illegal. He further submitted that it is a case of non-collection and non-issue of ticket that constitutes a grave misconduct and therefore, the workman is liable for punishment. Therefore, the award of the Labour Court is liable to be set aside.

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On the other hand, the learned counsel appearing for the 1^st respondent, workman, would submit that none of the three charges leveled against the workman were proved. Therefore, the appellate authority itself had granted the relief of reinstatement but by way of ordering fresh appointment but failed to award the back

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wages and continuity of service. Aggrieved by the same,

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the workman raised industrial dispute, which was referred to the Labour Court under Section 10(1)(c) of the Act for adjudication of the dispute and the Labourt Court on consideration of the facts and circumstances held that the order passed by the appellate authority is erroneous and consequently set aside the same and awarded continuity of service for the calculation of his future emoluments and entitlement to the increments on the basis of continuity of service. Therefore, the award passed by the Labour Court does not suffer from any legal infirmity.

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He further submitted that the plea taken by the Corporation that the Labour Court without considering the delay on the part of the workman passed the award is not sustainable, as the provisions of the limitation have no application to the Tribunals for consideration of reference made under Section 10(1) (c) of the Act. In support of his contention, he placed reliance in the case of KULDEEP SINGH v. G.M., INSTRUMENT DESIGN DEVELOPMENT AND FACILITIES CENTRE AND ANOTHER^[1] and submitted that no time limit is prescribed for making reference under Section 10 of the Act. Ultimately, he sought for dismissal of the writ petition.

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Heard the learned counsel on either side and perused the material on record.

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The point that arises for consideration is as to whether the grounds raised by the Corporation are sustainable in law and whether the impugned award suffers from any legal infirmity, so as to interfere with the same under Article 226 of the Constitution of India?

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Admittedly, the workman is a Conductor employee of the Corporation, who conducted the bus on 21.08.1993 on which date, a check was taken place by the authorities where a mistake of

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non-collection and non-issue of ticket was detected, for which, a charge memo dated 21.08.1993 was given framing the three charges, as stated hereinabove. Thereafter, domestic enquiry was conducted and based on the report submitted by the Enquiry Officer, the workman was placed under suspension and eventually after issuing the show cause notice, he was removed from service. Thereafter, the workman preferred an appeal to the Divisional Manager, who taking the lenient view, reinstated the workman into service as a fresh Conductor without past service and monetary benefits. After a lapse of eleven years, the workman raised industrial dispute, which referred to the Labour Court

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for adjudication that whether the action of the Divisional Manager is justified in imposing the punishment of disentitling the past service and monetary benefit. The Labour Court framed the issue for consideration that whether the workman is entitled to his past service. While considering the said aspect, the Labour Court reached to the conclusion that the workman is entitled to the continuity of service for the calculation of his future emoluments and he is also entitled to the increments on the basis of continuity of service. Assailing the same, the Corporation filed the present writ petition mainly on the ground that the Labour Court failed to see that the workman had raised the dispute after a lapse of eleven years and also the workman had accepted his reinstatement into service as a fresh Conductor without continuity of past service and without any monetary benefits.

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Before going into the aspect of delay, it is not out of place to mention the undisputed facts that one hour prior to check, non stop drizzling was falling along with heavy wind. The bus that was conducting by the workman has no proper windows and though there were some window glasses, they were not moving, as such, the workman could not close them. The rainwater, drizzle along with the wind, entered through the windows and all the seats

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were wet and the rainwater got accumulated on the floor of the bus. The lighting system in the bus did not function due to damage in the wiring. Under those circumstances, bad weather, coupled with fever to the workman, did not permit him to be alert and vigilant. More over, 10 to 15 minutes before the check,

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there was heavy down pore, by that time the bus reached stage No.8 i.e. Aliamaipet where some of the passengers boarded the bus but due to rain and wind, he did not alert all the passengers and one passenger had escaped from his attention. However, he issued the tickets to all the passengers from whom he collected the fare except one passenger from whom no amount was collected and no ticket was issued. Therefore, the workman was issued a charge memo.

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The workman gave his explanation to the charge memo that the passengers who are in the bus are standing in the bus due to heavy rain blowing from the window glasses. He went to the passengers and issued tickets and after completing the ticket issue, he shouted loudly that if anybody has to take the tickets, but no reply has come from any of the passengers, therefore,

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he closed the S.R. During the check, the passenger admitted that he had not taken the ticket and not paid the fare to the Conductor. In such circumstances, it can be said that there is no fault on the part of the workman.

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Further, it is to be observed, in respect of the first charge, that the workman failed to observe the rule of issue and start, the workman gave his explanation that the bus is a passenger bus and he has to stop the bus wherever the passenger raise their hand. Therefore, the rule of issue and start will not apply to a passenger bus, the rule of issue and start is applicable only to the express services. When the policy of passenger bus is to stop everywhere, it is quite natural that the Conductor has to perform his duties while the bus is running.

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As far as the second charge that the workman failed to collect the fare and issue ticket is concerned, it is to be observed that the ticketless passenger himself admitted that he did not pay the money for ticket. It is well known to every passenger that they have to purchase ticket from the Conductor for traveling in the bus but the ticketless passenger, with mala fide intention, avoided to take the ticket, even at least at the time of shouting by the workman to take the tickets, this ticketless passenger did not respond. Therefore, it is clear that the workman has no mala fide intention to cause loss to the Corporation. Just because of bad weather and the circumstances explained hereinabove,

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one passenger had escaped from his attention is sustainable.

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Insofar as, the third charge that the workman had closed the S.R. without completing the issuance of ticket is not a major offence and moreover, the workman reiterated that before closing of S.R., he shouted loudly but as he could not receive any reply from any passenger, he closed the S.R. Therefore, the workman had under the impression that he issued the tickets to all the passengers and therefore, closed the S.R.

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Under the above circumstances, the Labour Court had rightly reached to the conclusion that the punishment given to the workman is disproportionate to the gravity of the charge for no fault of him. The action of the appellate authority, appointing the workman as fresh conductor, totally collapsed the entire service of the workman. Therefore, this Court is of the view that the workman is entitled to the benefits as ordered by the Labour Court and the said order is liable to be confirmed.

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Coming to the aspect of delay, the learned counsel appearing for the workman placed reliance in the case of Kuldeep Singh wherein, the Apex Court at 15 held as under:

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“Let us consider whether the Labour Court and the High Court justified in rejecting the claim of the workman only on the ground of delay in making the reference, more particularly, when the Labour Court found that the termination is bad and contrary to the Act. It is not in dispute that there is no limitation prescribed for making reference to the Government under Section 10 of the Act. It is useful to refer to the decision of this Court in Sapan Kumar Pandit v. U.P., State Electricity Board and Others, AIR 2001 SC 2562: (2001) 6 SCC 222 : 2001-II-LLJ788 which is directly on the point in the case on hand. In that case, the appellant was appointed as a Clerk on January 1, 1974 in the Electricity Distribution Division, Mathura of the U.P. State Electricity Board, but his services were terminated on July 17, 1975. He raised an industrial dispute that the termination of his services was illegal. The State Government, by an order dated March 29, 1993, referred the dispute to the Labour Court for adjudication as per Section 4-K of the U.P. Industrial Disputes Act.

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“Whether termination of the appellant on July 17, 1975 by the employer was proper and legal; if not so, to what reliefs the workman is entitled?”

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The Labour Court took up the reference as Adjudication Case No.158/1993. The respondent Board filed a writ petition before the Allahabad High Court assailing the aforesaid reference order and also praying for quashing the adjudication case pending in the Labour Court. The appellant was arrayed as respondent No.5 in the writ petition. A single Judge of the High Court took the view that the delay is so inordinate that the dispute has ceased to exist by efflux of time and hence no reference under the U.P. Act should have been made. Accordingly, the order of reference passed by the Government was quashed by the High Court holding that the workman kept silent for more than 15 years and he woke up only after the petition of other co-

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workmen was allowed and he made no efforts to get his dispute referred to the Industrial Tribunal or Labour Court. By holding so, allowed the writ petition of the Management. The decision further shows that along with the appellant, the Board retrenched ten other workmen. Though the Industrial Tribunal passed an award granting retrenchment compensation and certain further other reliefs, the Union was not satisfied with the said award and they filed a writ petition in 1980 before the High Court of Allahabad. On April 28, 1988, the High Court allowed that writ petition and held that retrenchment was bad in law and the workmen concerned are entitled to be reinstated. Though the Board filed special leave petition in this Court which was dismissed in 1989. According to the appellant, he was entertaining the expectation that the Board would extent the same benefit to him. He was proceeding with his request to the Board that he should be treated on par with eight workmen some of whom were reemployed by the Board. When the appellant found that this was not done, he approached the Conciliation officer appointed by the State Government. His application for condoning the delay in initiating conciliation proceeding was disallowed by the Conciliation Officer. However, the Deputy Labour Commissioner went to his rescue as the delay was condoned and the conciliation proceedings were revived. This happened on January 28, 1992. It was in the aforesaid background that the State Government made the reference for adjudication on March 29, 1993. Section 4-K of the U.P. Industrial Disputes Act is almost in tune with Section 10 of the Industrial Disputes Act, 1947 and also there is no time limit fixed for making the reference for a dispute for adjudication. Considering the identical words i.e. “at any time” used in Section 10(1) of the Act and Section 4 of the U.P. Industrial Disputes Act, considered the main question namely, “Was the industrial dispute in existence on the date of reference for adjudication?” While considering the same, a three-Judge Bench decision of this Court as to the scope of the very same provision, namely,

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Section 4-K of the U.P. Industrial Disputes Act was cited before the Bench. In Western India Match Co. Ltd. V. Western India Match Co. Workers Union and Others, AIR 1970 SC 1205 : (1970) 1 SCC 225 : 1970-II-LLJ-256, the learned Judges made the following observations:

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“Therefore, the expression ‘at any time’, though seemingly without any limits, is governed by the context in which it appears. Ordinarily, the question of making a reference would arise after conciliation proceedings have been gone through and the Conciliation Officer has made a failure report. But the Government need not wait until such a procedure has been completed. In an urgent case, it can ‘at any time’, i.e., even when such proceedings have not begun or are still pending, decide to refer the dispute for adjudication. The expression ‘at any time’ thus takes in such cases as where the Government decides to make a reference without waiting for conciliation proceedings to begin or to be completed. As already stated, the expression

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‘at any time’ in the context in which it is used postulates that a reference can only be made if an industrial dispute exists or is apprehended. No reference is contemplated by the Section when the dispute is not an industrial dispute, or even if it is so, it no longer exists or is not apprehended, for instance, where it is already adjourned or in respect of which there is an agreement or a settlement between the parties or where the industry in question is no longer in existence.”

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Based on the interpretation of the three-Judge Bench, it was concluded:

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“15. There are cases in which lapse of time had caused fading or even eclipse of the dispute. If nobody had kept the dispute alive during the long interval, it is reasonably possible to conclude in a particular case that the dispute ceased to exist after some time. But when the dispute remained alive though not galvanized by the workmen or the union

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on account of other justified reasons, it does not cause the dispute to wane into total eclipse. In this case, when the Government has chosen to refer the dispute for adjudication under Section 4-K of the U.P. Act the High Court should not have quashed the reference merely on the ground of delay. Of course, the long delay for making the adjudication could be considered by the adjudicating authorities while moulding its reliefs. That is a different matter altogether. The High Court has obviously gone wrong in axing down the order of reference made by the Government for adjudication. Let the adjudicatory process reach its legal culmination.”

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After saying so, allowed the appeal of the workman and set aside the judgment of the High Court.”

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From the above, it is clear that there is no limitation prescribed for making reference to the Government under Section 10 of the Act. Therefore, the contention of the learned standing counsel for the Corporation that the workman had raised industrial dispute after a long lapse of eleven years and therefore, the workman is not entitled to any relief, as sought for before the Labour Court, is not sustainable since no limitation is prescribed for making reference to the Government under Section 10 of the Act.

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Under those circumstances, viewing from any angle, I do not see that the Labour Court had committed any illegality or irregularity in arriving at a conclusion that was arrived at by the Labour Court. Therefore, the writ petition is liable to be dismissed.

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Accordingly, having regard to the facts and circumstances of the case and the submissions made by the learned counsel on either side, this writ petition is dismissed. There shall be no order as to costs.

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_________________________ JUSTICE G.CHANDRAIAH

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Date: 21.07.2011 LSK

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[1] 2011-I-LLJ-615 (SC)

The Divisional Manager, Apsrtc, v. Sri. Ameer Beig

Case brief

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The Divisional Manager, Apsrtc, v. Sri. Ameer Beig

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