THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION NO.24467 OF 2002 Between:-
The Depot Manager, APSRTC., Narsipatnam Depot, Visakhapatnam District.
…Petitioner And Industrial Tribunal-cum-Labour Court, Visakhapatnam, rep.by its Presiding Officer and another.
…Respondents.
THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION NO.24467 OF 2002 ORDER:
This writ petition is filed by the APSRTC., seeking to issue a writ of certiorari to quash the order dated 28-
3-2002 in I.D.No.20 of 2000 on the file of the Presiding Officer, Labour Court, Visakhapatnam as arbitrary and illegal and to pass necessary orders.
I have heard Sri C.Arun Kumar, the learned Stating Counsel appearing for the petitioner-APSRTC., and the learned counsel appearing for the second respondent- workman.
The brief facts necessary for disposal of the present writ petition may be stated as follows:- At the relevant time, the second respondent was working as a bus conductor in the petitioner-corporation. While he was conducting the bus on route of Narsipatnam to Chowdawada on 21-8-1995, a surprise check was made and certain ticket and cash irregularities were detected. Basing on the report of the inspecting staff, the following charges were framed by the department:-
1. For having collected the amount of Rs.12.25 in total from a batch of seven lady passengers at their boarding point i.e., Kondala Agraharam and issued the tickets of Rs.1.75 denomination Nos.111/549840 to 846 on seeing the TTIs at Makavarapalem without punching the tickets at the boarding and alighting stages, who boarded the bus at Kondala Agraharam bound for Makavarapalem Stages ¾ to 4) and found alighting with above unpunched tickets at the time of check at Makavarapalem while you were conducting the vehicle No.AEZ 1581, on 21-8-1995 on route Narsipatnam to Chowdawada, which constitutes misconduct in terms of Reg.No.28 (via) of APSRTC Employees (conduct) Reg.1963.
2. For having closed the SR against the stage No.4 in Rs.1.75 Ps., denomination column as 830 even though you have issued the unpunched tickets of Rs.1.75 Ps., denomination bearing Nos.111/549840 to 846 to a batch of seven lady passengers as referred in the above charge while you were conducting the vehicle No.AEZ 1581 on 21-8-1995 on route Narsipatnam to Chowdawada which constitutes misconduct in terms of Reg.28(xxxii) of APSRTC Employees (Conduct) Regulations 1963.
3. For having failed to show correctly and clearly the number of passengers traveling in the service against the stage No.4 and for having mentioned an illegible figure in the number of passengers column in the SR.No.8449641 while you were conducting the vehicle No.AEZ 1581 on 21-8-1995 on route MRPM to Chowdawada, which constitutes misconduct in terms of Reg.28(xxxi) of APSRTC Employees (conduct) Reg.1963.
A domestic enquiry was held appointing an enquiry officer. The enquiry officer after conducting the enquiry, found the second respondent guilty of all the charges and he submitted a report to the disciplinary authority. The disciplinary authority having concurred with the findings of the enquiry officer, imposed on the second respondent, the punishment of removal from service.
Feeling aggrieved, the second respondent preferred an appeal and the said appeal was rejected. There after, a revision was filed by the second respondent and the said revision was also rejected. Ultimately, the second respondent raised an Industrial Dispute in I.D.No.20 of 2000 by making an application under Section 2-A(2) of the Industrial Disputes Act, 1947. The Industrial Tribunal-cum-Labour Court, Visakhapatnam enquired into the dispute. The second respondent filed a memo before the learned Tribunal, stating that he was not questioning the validity of the domestic enquiry proceedings. Thereafter, the matter was heard under Section 11-A of the Industrial Disputes Act by marking Exs.M1 to M17 on behalf of the Management and no evidence was let in on behalf of the workman.
The learned Tribunal held that charge No.1 was proved against the second respondent. Charge Nos.2 and 3 being consequential to charge No.1, there need not be any separate finding about the said charges. The Tribunal however was of the view that the misconduct for which the second respondent was held to be guilty can be attributable to the mistake or negligence on the part of the workman, but it cannot be said that the workman did it intentionally with a view to misappropriate the money belonging to the corporation. Accordingly, the learned Tribunal though accepted the finding recorded in the departmental enquiry as to the guilt of the second respondent workman, held that the punishment of removal is too harsh and shockingly disproportionate to the proved misconduct and consequently passed an award directing the petitioner to reinstate the second respondent workman with full back wages and continuity of service. The said award is challenged in the present writ petition.
From the material relating to the departmental enquiry and the award passed by the learned Tribunal, there is no denial of the fact that the petitioner issued tickets to a batch of seven lady passengers of Rs.1.75 denomination without punching them and the said amount of Rs.12.25 Ps., was not accounted for in the SR. The learned Tribunal rightly considered the statement of one of the passengers marked as Ex.M2 and rightly arrived at a conclusion that the statement did not disclose that the tickets were hurriedly issued by the conductor on seeing the checking squad. The Tribunal also took into consideration Ex.M3 explanation given by the workman, which revealed that when he was about to correct the SR., the checking squad suddenly rushed in and took possession of the SR. In the aforesaid circumstances, the Tribunal, in my view has rightly arrived at the conclusion that this is a case of negligence or mistake by the conductor and he cannot be attributed any intention to misappropriate the money of the corporation.
The next question therefore, is whether the Tribunal is right in reinstating the second respondent workman with full back wages and continuity of service ?
The learned counsel appearing for the second respondent would submit that since the learned Tribunal found that the charges proved against the second respondent do not involve misappropriation of any amount the Tribunal is justified in taking the view that the punishment imposed on the second respondent is shockingly disproportionate and therefore, reinstatement of the second respondent with full back wages and continuity of service is appropriate requiring no interference in this writ petition.
On the other hand, the learned counsel appearing for the petitioner corporation would contend that admittedly, the charges have been proved against the second respondent and this fact is affirmed by the Tribunal and that the second respondent earlier resorted to similar irregularities 19 times, therefore, the punishment of removing the second respondent from service ought not to have been interfered with by the learned Tribunal.
In support of his contention, the learned counsel for the petitioner relied on the following Judgments:- In U.P.STATE ROAD TRANSPORT CORPORATION VS.
[1]
SURESH CHAND SHARMA , wherein, the Supreme Court held that though punishment should always be proportionate to the gravity of misconduct, the only punishment for corruption/misappropriation is dismissal from service. This Judgment cannot be made applicable to the facts of the present case since the misconduct as viewed by the learned Tribunal is not so grave as it did not involve any misappropriation or any attempt to misappropriation of money of the corporation.
I n U.P.S.R.T.C. Vs. Mitthu Singh Court held as follows:-
[2]
, the Supreme
“In the instant case the record clearly reflects that the
services of the respondent-workman were never found to be satisfactory. In fact, before more than 30 years, his services were terminated but he was taken back by giving a chance to improve. Unfortunately, however, the respondent did not utilise it. Even prior to the three incidents in question, at several times, the respondent-workman was warned. It was, therefore, not a fit case to grant back wages and the Labour Court and the High Court were not right in granting the said prayer. To that extent, therefore, the order deserves interference.”
While rendering the above Judgment, the Supreme Court relied on General Manager, Haryana Roadways
[3]
Vs. Rudhan Singh MANU , wherein the Supreme Court said that there is no rule of thumb that in every case where the Industrial Tribunal gives a findings that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded.
The Supreme Court relied on Allahabad Jal
[4]
Sansthan Vs. Daya Shankar Rai MANU , wherein, it is stated that:-
"We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to
develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at."
The Supreme Court further relied on U.P.S.R.T.C.
[5]
Ltd. Vs. Sarada Prasad Misra MANU , wherein it is stated that:-
“It is clear that no precise formula can be adopted nor
`cast iron rule' can be laid down as to when payment of full back wages should be allowed by the court or Tribunal. It depends upon the facts and circumstances of each case. The approach of the Court/Tribunal should not be rigid or mechanical but flexible and realistic. The Court or Tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatment in service.”
The Supreme Court in the Judgment second cited above took the view that the entitlement of a workman to get reinstatement does not necessarily result in payment of back wages, which would be independent of reinstatement. While dealing with the prayer of back wages, factual scenario and the principles of justice, equality and good conscience have to be kept in view by the appropriate Court/Tribunal.
In the instant case, after filing the writ petition, initially, this Court granted interim stay with regard to payment of back wages to the second respondent and reinstatement has not been interfered with. The second respondent was removed from service on 15-12-1996 and he was reinstated on 20-7-2002.
Having regard to the facts and circumstances of the present case, which have been referred to herein above, the finding of the Tribunal that the misconduct proved against the second respondent is not so grave as it did not involve any misappropriation, but only related to a mistake or negligence in discharge of duties is appropriate. Despite the said fact, this Court is of the view that the Tribunal is not justified in granting full back wages to the second respondent. The reason is being the charges have been proved against the second respondent and he was also found guilty of similar charges earlier on some occasions. Reinstatement of second respondent with continuity of service and all attendant benefits does not require any interference in this writ petition. Granting of back wages being unwarranted and un-called for in the facts of the present case, which requires to be set aside in this writ petition and accordingly the second respondent is not entitled for any back wages.
In the result, the writ petition is partly allowed. There shall be no order as to costs. The Miscellaneous Petitions pending if any shall stand closed.
R.KANTHA RAO,J Date: 06-06-2014 Shr.
THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION NO.24467 OF 2002 Date: 06-06-2014 Shr.
[1] (2010) 6 Supreme Court Cases 555
[2] AIR 2006 SC 3018
[3] (2005) IIILLJ4SC
[4] (2005) iillj 847 sc
[5] (2006) iillj 829 sc