Dismissed

G. Dasthagir, Sharmic, E 301914 v. The Depot Manager, Apsrtc

Telangana HC3 Apr 2023WP/33745/2012

Case brief

AI extract

What is this about?

This writ petition challenged a Labour Court award rejecting the petitioner's claim for annual increments due to alleged theft of a wire. The High Court dismissed the petition, citing laches due to significant delays and noting that the punishment was not grossly disproportionate nor was the enquiry flawed.

What did the court decide?

Writ petition dismissed with no order as to costs.

G. Dasthagir, Sharmic, E 301914 Vs The Depot… — Service and Employment | Telangana HC (2023)

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13167 |

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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(Special Original Jurisdiction)

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MONDAY, THE THIRD DAY OF APRIL TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE A.ABHISHEK REDDY

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WRIT PETITION NO: 33745 oF 2012

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Between:

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G. Dasthagir, Sharmic, E 301914, s/o Yakubali, Gandhinagar, Godavarikhani, Karimnagar dist.

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...PETITIONER

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AND

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The Depot Manager, APSRTC, Huzurabad depot, Karimnagar Dist

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The Regional Manager, APSRTC, Karimnagar.

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...RESPONDENTS

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Petition under Article 226 ot the Gonstitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High - court may be pleased to issued a writ, order or directions more in the nature of writ of certiorari declaring the Award in lD NO: 56 of 2006, dated 20-12-2008 pubtished in G.O.RI No.133 dated;17-2-2o09 on the file of the Hon'ble lndustrial rribunal cum Labour court, Godavarikhani in rejecting the claim of thegetitioner as illegal and aibitrary and quash the same after calling the records and further direct the respondent herein to grant annual increments with all other consequential benefits including arears

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NO:1OF 012 P. NO: oF 2012

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to Fix an early date for hearing the Writ Petition

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Counsel for the Petitioner: SRI P. GOVINDA RAJULU

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Counsel for the Respondents: SRI GADDAM SRINIVAS, SC FOR TSRTC

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The Court made the following: ORDER

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THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

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IVRIT PETITION No.33745 of 2OL2

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ORDER:

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1n Challenging the Award dated 20.12.2OO8 passed LD.No.56 of 2006 by the lndustrial Tribunal-cum-Labour Court, Godavarikhani, the petitioner has filed the present writ petition under Article 226 of th,e Constit ution of India

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'2. Heard thc learned counsei for both sicles

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The brief facts that are nccessary for the disposai of the present writ petition are that the petitioner was appointcd as a Casual Driver in the year 1987 and thereafter, his serviccs u,ere regularized in 1989. That based on the complaint made by the Security Guard of the Bus Depot, the petitioner was put under suspension and issued a charge sheet dated 29.O1.1992, wherein the petitioner was charged as under:

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For hauing attempted to theft the current utire along uith J-utre of E-12 metres bg keeping the same in the uehicle AP 9 Z 1018 whtch utas taken bg gou for 07.OO laurs Kamalapur dutA on 22.01.1992.

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For hauing refused to giue Aour statement uhen asked bg the otl dutA seatitg guard and taken uway tlrc uehicle into the depot and thrown th.e wire in the garage.

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2 AAR, J W.P No. i13745 of 2012

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The allegation against^{the petitioneris that the pctitionerwhile} taking out Bus bearing^No.AP 9 Z^{lOlS on 22.01.1992had} attempted to steal the current wire^{along with ,I-wire of E-12} metres and when the Security Guard^{had checked the vehicle at} the out gate and asked the petitioner about^{the wire, he had taken} the bus inside the depot and threw the^wire in^{the garage and} came back. The petitioner was issued show cause notice calling for his explanation and thereafter, the authoritics having come to the conclusion that the explanation submitted by the petitioner was not convincing, had ordered for an enquiry and the Enquiry Ofhcer was appointed. Thereafter, the Enquiry Officer has conducted the enquiry and after recording the evidence on behalf of the management and also the petitioner, submitted his enquiry report holding that the charges levelled against the petilioner were proved. Based on the enquiry report, the Disciplinary Authority has been imposed the penalty of deferment of annual increment for a period of two years with cumulative effect, vide order dated 16.05.1992. Challenging the said punishment, the petitioner has preferred an appeal before the appellate authority but the same was rejected uide order dated 15.09.1992. After a gap of nearly 14 years, the petilioner has filed a Conciliation Application before the Assistant Commissioner of Labor-cum-Conciliation Commissioner

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3 A\ti.,J \.I']. N() 3374i^(,1 20 ll

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and as no settlenlent^{coulcl be arrived at, the procecdings rvcrc} concluded on 27 .O9.2OO4,^{thercafter the matterwas referred to thc} Labour Court under^{Section1O(1)(d) of Industrial DisputesAct} and the Labour^{Court vide Av,'ard dated 20'12'2OO8 has dismissed} the said reference^{The aq'ard of the LabourCourt' dated} 2O.12.2OO8,^{passed in I.D.No,56of 2006 is impugned in the} present Writ Petition.

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The learned counsel^{for the petitionerhas stated that the} disciplinary authority,^{the appellate authorityand the Labour} Court have not^{takeninlo consideration the fact that absolutelyno} monetary or^{physical loss was caused tothr: respondent} Corporation and^{the impositionof the punishment of deferment of} annual increment^{for a period of two yearswith cumulativeeffect'} is a major^{punishment,whichis grosslydisproportionate to the} charges levelled^{againstthe petitioner' karned counsel has stated} that without^{there being any evidenceon record to show that the} petitioner had any motive^{to steal or had deliberately kept the wire} iir the bus driven by^{the petitioner, the imposition of the} punishment is not^{proper and grossly disproportionateThatthe} entire enquiry^{v'as conductedin a biased manner and therefore'} prayed this Hon'bie^{Court to set aside the awarddated 20 t2 '2OO8} passed in I.D.No.56 of 2006^{by the LabourCourt as well as the}

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{

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-Tt!

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,{,\R..I W.P. No..lal74.5 of 2012

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initial orders of^{the disciplinary authorityand the appellate} authoritv.

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Per contra, the^{learned Standing Counsel appcaringfor the} respondent-Corporation^{has stated that the petitioner does not} have clean record. As a^{matter of fact, the petitioneru as} censured/warned 3 times^{and the defermentof annualincrement} was imposed on the petitioner for^{six times. Moreover, the order of} pr-rnishment of deferment of annual^{incrcmentfor a periodof trvo} years with cumulative effect was inflicted vide order dated 16.05.1992 but after a lapse of^{14 years,the petitioner has made} an application for conciliation^{beforethe Assistant Commissioner} of Labour-cum-Conciliation Commissioner and^{thereaf[er,the} matter was referred to Labour Court. Even though the^Labour Court vide award dated 20.12.2008 has^passed the award dismissing the reference, the petitioner for tlre reasons^{best known} to him, has filed the present writ^petition in the month^{of October,} 2012 i.e, after a lapse of four^years. That the^present writ^petition is liable to be dismissed solely on the^{ground of laches on the part} of the petitioner both in approaching the^Labour Court^{after a} lapse of 14 years and also this Honble Court^after a^{lapse of 4} years without giving a valid reason for the delay.^{The learned} counsel has also stated^{that the} oflicial respondents^{have followed}

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AAR, J W.P. No.33745 of 20 12

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the procedure sr;rupulousll. and conducted the enquiry in a fair and transparent manner and thereafter based on the enquiry report, the imposition of punishment was ordered. In the absence of any allcgation that enquiry was not conducted in a fair and transparent manner, the petitioner cannot have any grievance with regard to the quantum of punishment imposed by the disciplinary authority, which has been confirmed by the appellate authoriqi as well as by the Labour Court. The learned Standing Counsel for the respondents hits stated that there are no valid grounds to interfere with the impugned Award dated 20.l2.2OOg passed by the Labour Court by excrcising the jurisdiction of this Court under Article 226 of the Constitution of India and ultimately prayed to dismiss the vvrit petition.

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6. Perused the record.

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A perusal ol the Award dated 2O.\Z.ZOO} passed in I.D.No'56 of 2006 by the Labour court shows that vide elaborate order, the Labour Court has gone into the merits of the case and based on the evidence produced before it, has dismissed the reference on the gror-rnd of laches as well as on merits holding that the charges levelled against the petitioner have been proved by cogent and convincing evidence. Even though the learned counsel

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1.\R,,J W.P. No 33745 oi l0l2

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for the petitioner has vehemently stated that the^impositionof punishment of deferment of annual increment for a^period of tu'o years with cumulative effect is a harsh punishment and same is disproportionate to the charges levelled against the^petitioner, it is to be noted that the scope of the Writ Petition under Article 226 of the Constitution of India is very limited. When all the authorities i.e, the disciplinary authority, the appellate authority and the Labour Court have found that there are no procedural lapses or any evidence to show that the enquiry was not conclucted in a fair and transparent manner, this Court under Article 226 of flne Constitution of India, cannot go into the quanturn of the punishment imposed against the petitioner, unless and until it is shown that the same is grcssly disproportionate to the charges leveled or that the procedural lapses have been committed while conducting the enquiry. Moreover, as seen from the record, even though the imposition of punishment was given in the year 1992, the petitioner has filed conciliation application after lapse of 14 years. Further, the Labour Court has passed the Award on 2O.12.2OO8, but the petitioner has approached this Court by way of writ petition after lapse of four years. There is absolutely no explanation given by tJle petitioner for tl.e laches in approaching either the Labour Court or this Court. Moreover, as seen from the

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AAII,.I $ .P. No 33745 ot2012

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Aw,ard of the l-abour Court and also the counter hled by the rcspondent, thirr the petitioner lvas censured/warned three times and the deferment of annual increment was also imposed for six times, u,hich shou,s that the petitioner is not having a very clean record, warrant ing any inlerl'erence by this Court with regard to the quantum ol punishment imposed against him. Further, it is brought to the notice of this Court that the petitioner has already retired from service in the month of August, 20 13.

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Here, it is apt and appropriate to refer the decisions in Depot Manager, APSRTC, Cuddapah a. P. Gangarajul, wherein a Division Benr:h of the erst.while High Court of Judicature of Andhra Pradesh, at Hyderabad, observed as follows:

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"lt is true that this Court, irr its certiorari juisdictio4 does not act in appellate jurisdiction but acts onlg in a superuisory capacitg. It is fairlg settled tlat it cannot revieut or re-utetgh the euidence upon tuhich the deteflnination of tlrc Tribunql is based. . ...

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It is utell settled that a frtding could be said to be peruerse only if it can be held that no reasonable ma4 in the facts and ctrcumstances of the case, uou[d reach to that conclusion as reacLted by tle louer Court/ Tribunal. There is no such finding bg the learned sirryle Judge. Findings based upon surmises and conjectures, no doubt, cannot be said to be the findings based upon euidence. But the questton would be as to uLtether there is ang euidence and mateials on record and if so, uhether tlrc said materials qnd record were taken into consid.eration and the

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'^rsss 121 aLD 1054 (D B)

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.{{t?,,i W.I'. No.33745 of 20i2

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auailable^{euidenceutas properlgQpPrectated bA the Labour Court} If the^{mateialsare not token into considerationand the euidence} is not^{properlg appreciated bg the Labour Court' the sameis l[able} tc be^{correctedbA this Courtin exercise of its cerTioraiiuisdtction} under^{Article226 of theConstitutionof India But in the process'} this Court^{cannot substituteits otun opinionand atiue at a finding} aJter^{going intothe euidence "}

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g. In B.C.Chaturvedi^{vs. Union of India and others2,the}

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Hontrle Supreme^{Court obseruedas follows:}

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A^{reuieu)of the aboue legal posttionuould establi-shthat the} disciplinary^{authoitA, andon appeal the appellate authoritg, beiflg} fact-finding^{authorities haue exclustuepouer to con'sider ttrc} euid.ence^{utith a uieu.t to moitLtaindiscipline. Theg areinuested} u)ith^{the discretion to impose appropiate punishmentkeeping in} uieu the^{magnitudeor grauitgof the misanduct.TheHtgh} Court/ Tibunat,^{u.thile exerctsingthe pouerof iudicialreuieut'} cannot^{normallA substituteits oun conclusionon penaltgand} impose some^{otLler penaltg.If the punishmentimposed. bA the} disciptinary^{authorttg or the appellateauthoitAshock's the} conscience^{of the High Court/Tribunal, ituroul.d appropriately} moutd the^{relieJ either directingttledisciplinary/ appellate} authoitg^{to reconsider the penaltAimposed"or to shortenthe} litigation" it^{magitself,in exceptionalandrare ca.ses, impose} appropiate^{punisfuEnt urith @gent reasons in suPPott thereof.}

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No doubt,^{uthile exercising pouer under Article 226 of the} Constitutiorg^{the High Courts haue to bear in mindthe restrai/tts} inlerent in^{exercisingpower of judicial revieu. ft is becnuseoJ this} tlwt substittttion^{of the High Court's uieu regarding appropriate} punishtnent is^{notpennissible.But} for^{this constraint,I tuould haue} tttought that^{thc lau-makersdo d.esire o.Pplication of judicialmind} to tlg Ercstion^{of euen proportionalityof punishmern/ penaltg. I}

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21rs9s1 o scc 749

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AAR, J U'.P. No.33745 of 20l2

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haue satd so because llrc lndustial Dlsputes Act, 1947 was amendcd f() irrsert Seclio,r 1 I A in it to confer this pouer euen on a labour coutl/ industriol lt'ibunaL. It maA be that this potLer LUos confened ctrt these adJtldi:otlng authorities because oJ the preuaLetTce of unfair labour practrce or uictimisation bU the monogetnent. Euen so, Ilp pouer under Section 11-A is auaiLable to be exercised, euen tf there be no uictimisation or taking recourse to unfair lalnur practice In tLis background, I do not think if ue uould be^jtstified in giuing much uteight to the decision of the emploAer otl the c\testlon of appropiate punishment in service malters reloting to gouenun€tfi enrployees or emplogees of pubLtc corporations. I haue said so becouse if need for mainlenance of off.ce drsciptirc be tlrc reeson ol our adopting o stict attttude^qua the public seruerLts, <liscipltte ltrl.s to be maintained in the ttd.ustrial scctor aLso.^'l'lte ouarlabihty of appeal etc. to public seruonts cloes not tnaka a real difference, cs the appellate/ reuistonal authoitLt is knourn to haue taken a different uiew on the questton oJ senlence onlg rarelg. I uould,^therefore, think that but for the self irtposed limitation uthtle^exercising pouer undet Article 226 of the Constihttion, there is no inlerent reqson to disallou,t applicatlon oI Judicial mind to the^question of proporttonalitg of puntshment/ pena[tA. But then, tlhile seized with this Elestion o-s a uit court interkrence is^permissible onlA uhen the punishment/ penalty ts shockinglA disproportionate.

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In Surya Dev Rai vs. Ram Chander Rai3, the Hon'ble Apex Court summarized various circumstances under which the High Court can exercise its^jurisdiction under Articles 226 and 227 of the Constitution, which are as under:

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Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of tlLe Code of Civil Procedure cannot and does not alfed in ang manner the juisdictton of tlte High Court under Articles 226 and 227 of t\e Constitution.

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'1zooa1^{o scc 675}

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AAR..I W.P. No.33745 of 2012

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Interlocutory orders, passed btt the courts subordi.nate to the^High Court, aiainst which retnedy of reuision has been excluded^bA CPC Amendment Act 46 of 1999 are neuertheless open to challenge in, and continue to be subject to, certiorari ond supervisory juisdtction of the High Court.

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Certiorari, under Article 226 of the Cot.stitutiory is issued for correcting gross ertors ofjuisdiction i.e. uhe.n a subordinate court is found to houe acted (i) withaut jurisdiction-bg assuming

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jurisdtction u.)here there exists none, or (tt) in excess o/ its juri,sdiction-bg oue.rstepping or crossing the limits of jurisdiction, or (it) acting in Jlagrant disregard of lau.t or the rules of procedure or acting in uiolation of principles of natural justbe uhere there is no procedure spectfied, and therebA occasioning failure of lustice.

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Superuisory jurisdiction under Article 227 of the Constitutton is exercised for keeping tlle subordinttte courts within ttle bounds of their jurisdiction. When^q subordinate court has assumed a

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juisdictiorr uhich it does not have or hss failed to exercise a jurisdtction u.thich it does haue or ttLe jurisdiction though auailable is being exercised bA the. court in a manner not permilted bg law and faiLure of justice or graue injustice has occasioned thereby, the Htgh Court maA step in to exercise its superuisory jurisdiction-

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Be it a wit of certtorari or the exercise of superuisory jurisdictton, none is auqilable to correct mere errors of fad or of lau unless th_e follotutng^{requirements are satisfied:(i) the} enor is manikst and e.pparent on the face of tLLe proceedings such as when it is based on clear ignorance or utter disregard of the prouisions of lou4 and (ii) a graue injustice or gross failure of justice rds occasion.ed. thereby.

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A patent enor is an error uhich is self-euident i.e. which cnn be perceiued or demonstroled uithout inwluing into ang lengthg or compLicated argument or a long-d.rawry process of rea_soning. Wtere ttuo inferences^. are reasonablg possible and the subordinate court hls chnsen to take one uiew, the error cawat be called gross or patent.

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The power ,o issue a wit of certiorai and the superuisory jurisdiction are to be exercised. sparinglg and onlV in appropiate cases where the judicial cfr,s,ciencc of the High Court dictates it to act lest c gross failure of justice or grave injustice should occasion. Care, caution and ciranmspection need to be exercised, uhen anV of the abouesaid tuo jurisdictiors is sought to be inuoked during the pendencV of ang s,tit or proceedings in a stbordinate court and the enor though calling for arrection is get capable of being corrected at the cr:nclusion oJ the proceedings in an appeal or reuision prefened tlereagainst and entertaining a petition irunking certiorari or superuisory jurisdiction of the High Court u.tould obstruct the smooth Jlout and/ or earlg disposal of the suit or proceedings. The High Court may feel inclined. to interuene

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,dA II, J W P No.33745 ol 20 l2

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where tlrc error is suc,lr, as, i,f not corrected at thot uery moment, ntay becotne incopol)le oJ c(,rrecton at a loter stage arrd refusa[ to interuerut tuoulcl result ut It .luestlJ of Justice or where such refusaL itself tuould result irt prolorrtlrtrg of tlrc lis.

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8.The High Court in exercise of certiorqri or supet'uisory jurisd.ictlon will not conaert itself into a court of aPPedl and ind.ulge in reappreclcltion or eualudtion o! euidence^or correct errors in drqwing inferences or correct^{errors ot} mere formdl or technical character.

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In practice, lhe parameters for exercsing iurisdiction^{to issuea wit} of certioroi and tlase calling for exercise^{ofsuperutsory} juisdiction ore atnlost si,nilor ond the width of^jurisdiction exercised bg the High Corifts tn India unlike^{Engltsh courtshas} almost obliterated the dtstirrclion^{betweenthe two} luisdictions. While exercistng^junsdictiott lo issue a uil^of cerltorari,^{the t{igh} Court maA annul or sel a.srrle llrc^{act,orderor proceedirtgsof the} suborditate courts but cantrct substitule^tts oun^{decisronin place} thereof. In e:xercise of superutsory luisdiction^{lhe High Courtmag} not onlg Eue suttable dircr:frons^{so (Is fo gtide the subordinate} court as to the manner it utlLiclt it^{Lrould oct or proceed thereafler} or afreslt the High Courl^{rrtay itl} appropiote^{casesitse[f make an} order ut^{.supersessiort} or subslitution^{of theorder ofthe} subordinete court as the coufl should^{haue madein the} facts^and circumstances of the case.

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(Emphasis added)

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Bearing in mind the aforementioned^{decision, it is relevant} to state that in the instant case, the^{conclusions reached by the} Labour Court are based on the evidence on^{record. The findingsof} the Disciplinary Authorify, Appellate Authority^{and the Labour} Court are based on the material on^{record. The Labour Court,} while reaching to its conclusions, neither refused to^admit admissible and material eviclence nor had erroneously^admitted inadmissible evidence, which has influenced the^impugned findings. Further, there is nothing on record to substantiate that Labour Court hzrs acted in flzrgrant disregard of the rules of

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,14

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AAR. J W-P. No.33745 of20l2

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proccdure or violated the principles of natural^{justice. Further,} the Labour Court neither^{actedwithoutjurisdiction nor actedin} excess of it or failed to exercise^{the jurisdictionvestedin it. The} Labour Court discussed the material on^record at length^and rightly dismissed the I.D.No.56/2006, assigning number^of reasons. In view of the above circumstances, this Court is not inclined to interfere with the impugned Award dated 20.12.2008 passed by the Labour Court by exercising jurisdiction of this Court under Article 226 of Constitution of India. This Writ Petition is devoid of merit and it is liable to be dismissed.

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