Partly allowed

T.R. Krishna, v. The Depot Manager

Telangana HC3 Dec 2012WP/23667/2006

Case brief

AI extract

What is this about?

This writ petition challenged the removal order and award against a bus conductor for ticket irregularities. The High Court found charge No.2 unproven due to contradictory witness statements, reduced the confirmed charges from misconduct to lesser penalties, and ordered reinstatement without full back benefits.

What did the court decide?

Petitioner reinstated into service without back wages and attendant benefits, but with continuity of service for pension calculation purposes.

T.R. Krishna, Vs The Depot Manager — Labour and Industrial Disputes | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE N. RAVI SHANKAR

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WRIT PETITION No.23667 of 2006

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ORDER:

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In this writ petition under Article 226 of the Constitution the petitioner is seeking a certiorari for setting aside the award dated 12.07.2006 passed in I.D.No.122 of 2003 by the Industrial Tribunalcum-Labour Court at Warangal.

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2. At the relevant time the petitioner was working as a Conductor in the Madhira Depot of the Andhra Pradesh State Road Transport Corporation (for short RTC). On 12.09.2002 while the petitioner was conducting the bus bearing No.AP-9Z-7500 on the route MadhiraMuchintla at stage No.4 i.e. Anigallapadu at about 17.45 hrs a check was conducted by the concerned TTIs and certain cash and ticket irregularities were allegedly found to have been committed by the petitioner.

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3. A disciplinary enquiry was commenced against the petitioner by the respondent i.e. the Depot Manager of Madhira depot of the Corporation on the following four charges which give details of the alleged cash and ticket irregularities.

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“1. For having failed to punch and issue tickets to all the passengers at Muchintala stage 4 (i.e., Kalwakatta), which is misconduct under Reg.No.28 (vi)(a) of APSRTC Employees’ (Conduct) Reg. 1963.

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2. For having failed to issue ticket to a passenger who boarded the bus at Muchintala (Penuganchiprolu) and found alighting at Anigandalapadu ex-stages 5 to 4 in spite collecting the requisite fare or Rs.3.00 at boarding point itself, while you were conducting the bus No.7500 on the route Muchinthala – Madhira on 12-9-2002, which is misconduct under Reg.No.28 (vi) (a) & (x) of APSRTC Employees’ (Conduct) Reg. 1963.

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3. For having kept loose ticket No.614/724889 of Rs.3-00 un-punched in your ticket tray, which was shown as sold and which was obtained as TPT by the TTIs at the witness of service driver, which is misconduct under Reg.No.28(x) of APSRTC Employees’ (Conduct) Reg. 1963.

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4. For having closed all denominations upto stage No.4 and closed all denominations except Rs.6-50 ps. From stage 5 to 1, which is misconduct under Reg.No.28(xxxii) of APSRTC Employees’ (Conduct) Reg. 1963.”

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4. Subsequently, the enquiry officer submitted his report dated 28.11.2002 to the effect that all the four charges were proved. Thereafter the respondent after giving show cause notices and calling for the explanations of the petitioner accepted the enquiry report and by his order dated 31.12.2002 removed the petitioner from service. Assailing the said removal order, the petitioner filed a departmental appeal and not having been successful there he filed the aforesaid I.D.No.122 of 2003. The Labour Court also after considering the matter upheld the removal order by its Award dated 12.07.2006 which is now questioned in this writ petition.

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5. Sri V.Narasimha Goud, the learned counsel for the petitioner, pointed out that charge No.2 relates to collection of fare but not issuing ticket to a passenger and the said passenger did not support that charge in the enquiry and despite the same the enquiry officer recorded the finding that charge was proved and the respondent also accepted the same without giving any cogent reasons. He says that the Labour Court also without considering the matter in its proper perspective confirmed that finding. Sri Narasimha Goud’s argument is that once the passenger has not supported that charge, all the authorities including the Labour Court ought to have rejected it. Even with regard to charge Nos.1, 3 and 4 which all pertain to failure to punch and issue tickets and for having kept one loose ticket of the denomination of Rs.3-00

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un-punched and also having closed all denominations upto stage No.4 which the Conductor ought not to have done the evidence is also not reliable and therefore the said charges are also unsustainable. In any event he argued that the punishment of removal from service is highly disproportionate and the Labour Court should have imposed a lesser

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punishment.

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6. On the other hand, Sri Srinivasa Rao, the learned counsel for RTC, pointed out that though the passenger concerned in charge No.2 did not support the charge in his statement in the enquiry, yet the petitioner himself gave one version in his spot explanation and another version in his statement in the enquiry and this itself suggests that the petitioner is guilty of the said charge. With regard to the other charges he pointed out that the evidence adduced in the domestic enquiry is sufficient to sustain the same and even the penalty imposed can be said to be appropriate. He relied upon Divisional Manager, Rajasthan S.R.T.C. v. Kamruddin^[1] in support of his above contentions and pointed out that since domestic enquiry is not challenged this Court cannot interfere on both the above aspects of findings and penalty.

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7. In reply, Sri Narasimha Goud pointed out that his argument is based only on the statement of the witness connected with charge No.2 and since he did not support the charge that cannot be sustained and equally the other charges also and the authorities below went wrong on the above aspect.

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8. Having regard to the above rival contentions, it has now to be seen whether the petitioner’s case can be accepted.

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9. The charges and all the facts and circumstances in which they came to be framed against the petitioner and the enquiry was held into the same have been setout supra. So far as charge No.2 is concerned, it directly relates to collection of money from a passenger and not issuing the ticket to him and this no doubt amounts to misappropriation and a serious charge, if held proved. The enquiry officer and as well as the Labour Court both found the said charge proved and they gave their reasons. It should however be noted that in the record obtained from the Labour Court the first statement of the

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passenger and the subsequent statement made by him in the enquiry are found. In his first statement recorded on 12.09.2002 i.e. the date of check, this passenger whose name is shown as Mulavath Saidulu stated that he gave the ticket fare of Rs.3-00 to the conductor (petitioner), but he did not issue the ticket. This supports the said charge.

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10. Thereafter the said passenger’s statement was recorded by the enquiry officer in the course of domestic enquiry subsequently on 06.11.2002. In that statement the above passenger changed his version and supported the petitioner and his statement is to the effect that the petitioner/conductor gave him ticket and that after he alighted the bus and was walking away, he was called by the TTIs and he also gave them the ticket issued to him by the petitioner. Thus it is clear that the above passenger is said to have given one statement against the petitioner at the time of checking and another supporting the petitioner in the domestic enquiry which was subsequently held.

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11. The enquiry officer made certain observations going by the spot explanation of the petitioner and his subsequent explanations and he appears to have come to the conclusion that the petitioner could have won over the above passenger or it cannot be believed. The Award would disclose that the above aspects were not gone into by the Labour Court.

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12. It may be noted that though strict rule of proof which is applicable in criminal cases may not be required in disciplinary enquiries, still it is expected that the charges framed against a delinquent in a disciplinary enquiry should also be proved with certainty. The above two statements of the passenger which are contradictory may show that he did not support the RTC and the version of the TTIs in the domestic enquiry. An observation was made by the enquiry officer that the above passenger was not cross-examined by the conductor in the

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domestic enquiry. In fact the cross-examination of the above passenger by the conductor was not necessary inasmuch as he did not say anything against the petitioner and therefore that omission on the part of the petitioner cannot make any difference to his case.

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13. It is thus clear that the above witness gave two different and contradictory statements, one at the time of actual checking and another in the domestic enquiry. Throughout the stand of the petitioner was that he issued the ticket to the said passenger and there is nothing in the record to show that there is any other evidence that was let in in the domestic enquiry apart from the version of the TTIs to prove the above charge. In such circumstances, I am of the view that the above charge cannot be said to have been proved against the petitioner with certainty. It therefore follows that the said charge has to be rejected as not proved. This is permissible as in Divisional Manager, APSRTC,

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Adilabad v. E.Raja Reddy^[2] it has been held that the Labour Court has still got the power to re-appreciate the evidence even if the domestic enquiry is not challenged and therefore it follows that this Court can also go into the same to see whether the Labour Court’s findings can be said to be incorrect on that aspect.

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14. Then coming to charges 1, 3 and 4 which are already extracted supra, charge No.1 relates to lapse on the part of the petitioner in not punching and issuing tickets to four passengers who boarded at Muchintala, charge No.3 relates to keeping a loose ticket of a particular number of Rs.3-00 denomination unpunched in the ticket tray though it was shown as sold. The fourth charge relates to closing tickets of all denominations except Rs.6-50 ps. without issuing tickets to the passengers already in the bus.

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15. Thus charges 1, 3 and 4 by their very nature can be spoken to only by the ticket inspectors who are well versed in the chart of duties of conductors relating to closure of tickets in his tray and his duty to

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complete the issuance of tickets at specified stages in the route of the bus as required by Regulation 28(vi)(a) of the Andhra Pradesh State Road Transport Corporation Employees’ (Conduct) Regulations, 1963. It may be noted that, as argued by the learned counsel for RTC, those omissions on the part of the petitioner mentioned in charges 1, 3 and 4 would give scope for any conductor to commit acts of misappropriation and they are independent of charge No.2. The Labour Court accepted these charges as proved and there is no, going by the record, compelling reason to disagree with its findings on this aspect.

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16. Thus for the aforesaid reasons, it follows that the charge No.2 cannot be sustained and the enquiry report and the Award in question have to be set aside to that extent, while the Award in respect of other three charges has to be confirmed. The question now is whether the penalty of removal from service which has the effect of denying all service benefits to the petitioner can be maintained on the ground that it would be sufficient penalty even in respect of charges 1, 3 and 4 or whether any lesser penalty would meet the ends of justice and whether this Court can interfere with the penalty.

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17. In Kamruddin’s case (1 supra) the proposition laid down is that though the Labour Court has got power under Section 11-A to impose a lesser penalty, it should interfere with the penalty in exceptional cases by acting judiciously having regard to the gravity of the charges. That case pertained to the removal of the Conductor who was on probation and who was also found to have committed other ticket irregularities previously and though the charges there were also related to not issuing tickets, the Supreme Court held that in the circumstances of that case the imposition of a lesser penalty by the Labour Court and confirmed by High Court were not called for. That is not the case here and the two charges pertain only with the present check and not the previous irregularities and by themselves an

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inference of misappropriation cannot be made.

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18. Now turning to punishment aspect on charges 1, 3 and 4 which cannot by themselves lead to an inference of actual misappropriation, for the aforesaid reasons, it follows that punishment of removal from service can be said to be an excessive punishment. It is also stated that the petitioner is on the verge of retirement or has even retired from service.

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19. In the above circumstances, I am of the view that the penalty of removal should be set aside and the petitioner should be ordered to be reinstated into service without any back wages and other attendant benefits, but with continuity of service for the purpose of taking his past service into account only for calculating his pension on the basis of notional increments as the said penalty would meet the ends of justice.

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20. The writ petition is partly allowed in the above terms. No costs.

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_______________________ N. RAVI SHANKAR, J 3^rd December, 2012 CVRK/TJMR

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[1] 2009-Scale-8-182

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[2] 1999 (5) ALT 450

T.R. Krishna, v. The Depot Manager

Case brief

What is this about?

What did the court decide?

T.R. Krishna, v. The Depot Manager

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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