HONOURABLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO:951 OF 2005 Date:25.6.2010 Between:
N.Venkatanaidu..
…petitioner.
And:
The Depot Manager, A.P.S.T.C., S.Kota & others.
….Respondents.
This Court made the following:
HONOURABLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO:951 OF 2005 ORDER:
The petitioner who worked for sometime earlier as Conductor in the respondent-A.P. State Road Corporation in S.Kota Depot, Vizianagaram District, has filed this writ petition questioning the award of the Industrial Tribunal, dated 7.4.2004 passed in I.D.No:221 of 2001 by the Industrial Tribunal-cum-Labour Court, Visakhapatnam.
By the aforesaid award, the application of the petitioner filed under section 2-A (2) of the Industrial Disputes Act, 1947 for setting aside the order of removal, is rejected by the tribunal.
Necessary facts for disposal are as under:
The petitioner was appointed as a Conductor in A.P. State Road Corporation in Vizianagaram Depot in the year 1998. On 8th of August, 1998, he was on duty on the bus bearing No:AP.35T 2313 on the route from New Poorna (Vizianagaram to Konada). In the transit, a check was exercised by the checking officials at stage No:5 (Poosapati Rega) at about 17.45 hours when the bus was proceeding towards Konada from Newpoorna. At the time of checking, the checking officials have found that the petitioner failed to issue ticket to one passenger who boarded the bus at Newpoorna (stage No:1) bound to travel konada stages-1 to 7. When the passenger was questioned, he has stated that he has already paid the fare of Rs.6/- to the petitioner at the boarding point itself. As such, the statement of the passenger was recorded and on the same day, a charge memo No:0693397, dated 8.11.1998 was served on the petitioner pointing out the above said irregularity. As there was no valid explanation from the petitioner, based on the report submitted by the checking officials, the disciplinary proceedings were initiated against the petitioner and charge sheet dated 19.11.1998 was issued by placing the petitioner under suspension. In the enquiry proceedings, three charges were framed against the petitioner and they read as under:
1. For having violated the rule “Issue and Start” while you were conducting the vehicle No:AP 35 T 2313 on the route Newpoorna – Konada on 8.11.1998 which constitutes mis conduct under Regulations 28 (xxxi) of A.P.S.R.T.C Employees (Conduct) Regulations, 1963.
2. For having failed to issue ticket to a passenger who boarded the bus at Newpoorna at stage No:1 bound to travel Konada ex stages 1 to 7 on 8.11.1998 though you have collected the requisite fare of Rs.6/- at the boarding point itself while you were conducting the vehicle No:AP35 T 2313 on the route Newpoorna –Konada which comes under mis conduct under Regulations 28 (vi) (a) of A.P.S.R.T.C Employees (Conduct) Regulations, 1963.
3. For having closed all denominations upto stage No:5 in S.R. without issuing the ticket to the above passenger while you were conducting the service Bus No”AP 35T 2313 on the route Newpoorna – Konada on 8.11.1998 which constitutes misconduct under Reg.28 (xxxi) of A.P.S.R.T.C Employees (Conduct) Reg.1963.”
When the charges were denied by the petitioner, enquiry was conducted by appointing an enquiry officer. During the enquiry proceedings, the Ticket Inspector who made inspection and who recorded the statement of the passenger, was examined and based on the aforesaid documentary evidence on record placed in the domestic enquiry proceedings, the enquiry officer has recorded a finding that the charges framed against the petitioner were proved.
In that view of the matter, the Depot Manager passed orders removing the petitioner from service by order dated 7.4.1999. As against the same, the petitioner preferred an appeal before the appellate authority and further review and both the applications ended in dismissal. Ultimately, the petitioner questioned the said removal order as confirmed by the appellate and review authorities by filing an application under section 2-A (2) of the Industrial Disputes Act.
Before the Industrial Tribunal, a memo was filed on behalf of the workman and as per which, he did not dispute the validity of the domestic enquiry proceedings. Before the tribunal, no oral evidence was let in. Only documents were filed.
On behalf of the workman, one letter addressed to the Depot Manager by the passenger was marked as Ex.W1 and on behalf of the Management, Exs.M1 to M19 were marked.
The tribunal having considered the findings in the domestic enquiry proceedings and also the documentary evidence placed on record, by impugned award rejected the application filed by the petitioner by dismissing the same. Questioning the said award of the tribunal, the present writ petition is filed.
In this writ petition, it is contended by the learned counsel for the petitioner that the passenger was not examined in the enquiry proceedings and in that view of the matter, the finding recorded against the petitioner that he has collected the fare of Rs.6/- from the passenger and has not given the ticket, is a perverse finding. It is further submitted that no excess cash was also found in the cash bag and that in spite of the fact that there was also a letter addressed to the Depot Manager by the Passenger, the same has not been considered.
A detailed counter is filed on behalf of the management.
In the counter affidavit, while denying the various allegations made by the petitioner, it is categorically stated that in front of the petitioner, statement was recorded at the time of checking. It is further stated that spot explanation of the petitioner was also recorded. It is stated that in enquiry proceedings, it is proved that the petitioner has collected money of Rs.6/- from the passenger at stage No:1 itself and has not issued ticket up to stage No:5 where inspection is made and in view of the findings recorded in the enquiry proceedings, order of removal is passed and the tribunal has considered the various aspects and rejected the claim of the petitioner and there are no grounds to interfere with the impugned award.
I have perused the copy of the award passed by the Industrial tribunal and the averments in the counter affidavit.
From the enquiry proceedings, it is clear that it is not in dispute that the petitioner was on duty on the aforesaid day in the bus bearing No:AP 35 T 2313 on the route Newpoorna-Konada. It is also not in dispute that the passenger who was found without any ticket boarded the bus at stage No:1 whereas inspection was made at stage No:5. At the time of checking, in the spot explanation by the passenger in clear terms it is stated that he has paid fare of Rs.6/- to the petitioner and he was not issued ticket. On the same day, a statement of the petitioner was also recorded. But, there was no explanation for not issuing the ticket having collected the fare from the passenger. The statement of the passenger was also recorded in the presence of the petitioner himself on the date of inspection.
Although it is submitted by the learned counsel for the petitioner that the passenger was not examined in the enquiry proceedings, but that itself cannot be the ground to upset the findings recorded in the enquiry proceedings. If the passenger is found without any ticket and in the presence of the petitioner, the statement of such passenger is recorded on the spot at the time of checking, that can be the best piece of evidence, which can be relied upon in the enquiry proceedings. It may not be possible in each every case to bring back the passenger who was found ticket less at the stage of enquiry in view of the long lapse of time between the date of checking and enquiry proceedings.
In that view of the matter, the only ground that the passenger was not examined, by itself cannot be fatal to upset the findings recorded by the disciplinary authorities. In the enquiry proceedings, the Inspector who inspected the bus was examined and in spite of his categorical deposition, nothing adverse appears to have been elicited in the departmental enquiry proceedings. The statement of the passenger was also recorded which is marked as Ex.M3 before the tribunal.
In that view of the matter, based on the statements and the deposition of the Ticket Inspector, the findings are recorded in the enquiry proceedings and such findings are relied on for passing order of removal.
The further ground that no excess cash was found cannot be the reason to disbelieve the charge against the petitioner. It is quite possible that when he has not issued ticket with a plan to misappropriate the money having collected the same, he cannot put such money in the cash bag. On the plea that there was no discrepancy in the cash bag comparing to issued tickets, also is no ground to disbelieve the charge against the petitioner.
In any event, it is to be noticed that when memo is already filed on behalf of the petitioner before the tribunal without disputing the validity of the enquiry proceedings and in view of the documentary evidence which was placed on record before the tribunal, the tribunal has correctly appreciated the evidence on record and rejected the plea of the petitioner.
Another plea raised by the petitioner, is that punishment of removal is shockingly disproportionate to the gravity of the charge. The contention of the learned counsel for the petitioner also cannot be accepted. The petitioner, who is appointed to the services of the Corporation by paying the regular salary apart from other benefits, is expected to discharge his functions with full care and trust to do the job entrusted to him to collect the fare carefully and issue tickets to the passengers.
In that view of the matter, it is not the quantum of money which makes difference. But, it is such an incident, which indicates the loss of trust on the employee. In that view of the matter, punishment of removal is imposed in such case where misappropriation is proved by collecting the fare without issuing any ticket. Therefore, the punishment of removal cannot be said shockingly disproportionate to the gravity of the charge. It is also to be noticed that the petitioner was removed by order-dated 7.4.1999 and he is out of service since then. In view of the reasons recorded by the tribunal, I do not find any merit in this writ petition for grant of relief.
Accordingly, writ petition is dismissed. No order as to costs.
Justice R.Subhash Reddy Dt.25.6.2010 Gurc.
HONOURABLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO:951 OF 2005 25th June, 2010.