Akula Venkata Sesha Sai, J. - (1.) THE challenge in the present Writ Petition is to the award dated 21.01.2010 passed by the Industrial Tribunal -cum -Labour Court, Visakhapatnam, in I.D. No. 76 of 2008, published in the Gazette vide G.O. Rt. No. 186, dated 04.02.2010. Petitioner herein entered into the service of the respondent Corporation as a Conductor in the year 1998 and the respondent Corporation removed the petitioner from service with effect from 25.08.2007 on the following charges: 1. "For having violated the rule "Issue and Start" while you were performing duty with vehicle No. 937 on the route Addateegala on 01.05.2007 which constitutes misconduct under Clause No. 28(xxxi)(xxxii) of Reg. No. 28 of APSRTC Employees (Conduct) Regulations, 1963. 2. For having failed to issue tickets of Rs. 3/ - denomination E. 2 to a batch of two passengers even after collecting the requisite fare from them at their boarding point itself for their journey from Parimitadaka (AMG) to Jeddangi Annavaram (collected an amount of Rs. 50/ - and refunded Rs. 44/ - to them after deducting the fare of Rs. 6/ - @ Rs. 3/ - each, but not, issued the tickets to them) duly closing the STAR document upto stage No. 4 while you were performing duty with vehicle No. 937 on the route Addateegala on 01.05.2007 which constitutes serious misconduct under Reg. No. 28(vi)(a), (ix)(a), (ix)(a) of APSRTC Employees' (Conduct) Regulations, 1963." 2. Aggrieved by the order of removal, unsuccessfully availing the remedies of appeal and review, petitioner raised I.D. No. 76 of 2008 before the Industrial Tribunal -cum -Labour Court, Visakhapatnam. The Tribunal by way of award dated 21.01.2010, dismissed the said industrial dispute and passed a Nil award. Calling in question the validity and legal sustainability of the said award, the present writ petition came to be instituted by the workman. 3. Heard Sri S.M. Subhan, learned counsel, appearing for the petitioner, learned Government Pleader for Labour and Sri S.V. Ramana, learned Standing Counsel for the respondent Road Transport Corporation, apart from perusing the material available before this court. 4. It is contended by the learned counsel for the petitioner that the award of the tribunal is erroneous, contrary to law and opposed to the very spirit and object of the provisions of the Industrial Disputes Act. It is further submitted that non -examination of the passengers is fatal, as such, Tribunal ought to have allowed the I.D. and ought to have directed the reinstatement of the petitioner with all consequential benefits. It is also the submission of the learned counsel that the Tribunal did not assign any valid and proper reasons and failed to appreciate the evidence available on record from proper perspective. It is further submitted by the learned counsel that the order of removal is not in conformity with the circular instructions and on the otherhand, shockingly disproportionate to the charges alleged. Learned counsel for the petitioner, in support of his submissions and contentions, placed reliance on the judgments in the cases Depot Manager, A.P.S.R.T.C. v/s. M. Narasaiah : 2013 (6) ALT 740 (D.B.), Paras 15 and 16, B.H.K. Rao v/s. Industrial Tribunal -cum -Labour Court, Visakhapatnam and others : 2000 (1) ALT 538, Ishwar Chandra Jayaswal v/s. Union of India and others : 2014 (3) SCJ 276 : (2014) 2 SCC 748 : 2014 (3) ALT 14.2 (DN SC) and Md. Rasheed v/s. Managing Director, APSRTC and others : 2015 (1) ALT 172 (D.B.). 4.1. Per contra, it is strenuously contended by the learned Standing Counsel for the respondent Corporation that there is no illegality nor there is any procedural infirmity in the impugned orders nor there is any perversity in the impugned orders and in the absence of the same, writ petition is not maintainable and the petitioner is not entitled for any relief from this Court under Article 226 of the Constitution of India. It is the further submission of the standing counsel that in view of the gravity of the charges, the authorities are justified in terminating the service of the petitioner and the quantum of amount cannot be the basis for exonerating the petitioner. In support of his submissions and contentions, learned Standing Counsel takes the support of the following judgments: 1. Union of India and others v/s. Dwaraka Prasad Tiwari : (2006) 10 SCC 388, 2. Managing Director, North -East Karnataka Road Transport Corporation v/s. K. Murti : (2006) 12 SCC 570, 3. Divisional Controller, N.E.K.R.T.C. v/s. H. Amaresh : (2006) 6 SCC 187, 4. U.P. State Road Transport Corporation, Dehradun v/s. Suresh Pal : 2006 (7) SCJ 332 : (2006) 8 SCC 108 : 2007 (1) ALT 27.2 (DNSC), 5.V. Ramana v/s. APSRTC and others : 2001 (5) ALT 180 : 2001 (5) ALD 427 (FB), 6. Karnataka Bank Ltd. v/s. A.L. Mohan Rao, (2006) 1 SCC 63, 7. Order in W.P. No. 9689 of 2005, dated 01.09.2015, and 8. Order in W.A. No. 949 of 2006, dated 22.01.2015. 5. In the above backdrop, now the issue that emerges for consideration of this court is: Whether the petitioner is entitled for any relief from this Court under Article 226 of the Constitution of India and whether the impugned award is sustainable and tenable? 6.Dispensing with the services of the employees on the allegation/charge of misappropriation is a matter of serious concern and is undoubtedly a stigma on the reputation of the person concerned in the society, as such, authorities are required to take great amount of care and caution before resorting to such an extreme action. Unless the charges are proved by valid, cogent, convincing and unimpeachable evidence, such extreme punishment cannot be inflicted in a mechanical, routine and iniquitous manner. 7.The material available before this court vividly and candidly discloses that the passengers from whom the respondent Corporation officials recorded the statements were not examined by the Enquiry Officer to elicit the realities. This non -examination of the passengers during the course of enquiry by the Enquiry Officer is certainly and undoubtedly fatal to the case of the respondent Corporation. Therefore, the case on hand can be treated as a case without any proper evidence and the allegation of misconduct without sufficient proof. The failure on the part of the delinquent in expressing any objection on the statements of the passengers and attestation of the statements of the passengers by the delinquent cannot be treated as admissions on the part of the petitioner nor the same can be regarded as the basis for infliction of extreme punishment of removal from service, as per the law laid down by the Division Bench of this Court in the case of Depot Manager, A.P.S.R.T.C. v/s. M. Narasaiah : 2013 (6) ALT 740 (D.B.), Paras 15 and 16 (supra). Therefore, the findings recorded contra by the Tribunal cannot be sustained. 8.In order to arrive at a just conclusion, it may be appropriate to refer to the judgments cited by the learned counsel for the petitioner so also learned Standing Counsel for the respondent Corporation. 1. In the case of Depot Manager, A.P.S.R.T.C. v/s. M. Narasaiah : 2013 (6) ALT 740 (D.B), Paras 15 and 16 (supra), this Court at Paras 15 and 16, held as follows: "15. It needs no restatement that dismissal or discharge of a workman is fraught with grave consequences, apart from being stigmatic, to say the least. Graver the consequences, the more stringent proof does it call for. There is no inflexible or invariable legal principle that the Labour Court, which is a Tribunal of fact and law, cannot interfere with departmental findings by re -appreciation of the evidence of whatever nature. It is equivalent true that the Tribunal may not interfere with departmental findings only on a simple premise that another view is equally tenable. 16. Referring to the first charge, it is to be appreciated that the very passenger, who gave a statement at the time of spot inspection that he was issued a used ticket, deposed before the enquiry officer that he had not purchased any ticket, but gave the statement during spot inspection being afraid of the consequences of not taking the ticket. Even the T.T.I., the checking official, has admitted during his examination in course of enquiry that there was a chance that an alighting passenger might have thrown the six rupee denomination ticket on the floor of the bus and that might have been picked up by the passenger. This statement may be appreciated in the circumstance that the used ticket was properly punched showing the stages covering the fare of Rs. 6/ -. Further, it is borne out by record that the passenger did not readily produce the ticket for inspection before the checking officials, but could produce that after a lot of frisking and searching himself for the ticket. In any event, once the passenger himself admitted that he did not buy the ticket and that he had falsely deposed before the checking officials fearing the consequences, penalising the respondent/workman cannot be justified. The fact that the passenger's statements are contradictory, and during the course of enquiry he has recanted his earlier statement, cannot detain us from placing reliance on his statement before the enquiry officer. The enquiry officer or the Tribunal ought to have evaluated the relative merits of the contradictory statements of the witnesses, giving benefit of doubt to the respondent/workman. It goes without saying that attesting of the passenger's statement by the respondent/conductor at the time of spot inspection would not amount to any admission of the contents of the statement, but would only amount to attesting the fact of the passenger giving the statement. Even that incident cannot be taken to the prejudice of the respondent."
(2.) IN the case of B.H.K. Rao v/s. Industrial Tribunal -cum -Labour Court, Visakhapatnam and others : 2000 (1) ALT 538 (supra), this Court at Paras 3 to 6, held as follows: "3. The learned Counsel for the petitioner contended that though the petitioner was charged for the alleged cash and ticket irregularities to a total sum of Rs. 5.00 on the ground that he failed to issue tickets to four passengers. The said fact of cash and ticket irregularities was disputed by the petitioner stating that he had issued the tickets to some of the passengers and while he was issuing tickets, the checking officials have entered the bus and in the course of enquiry by the checking officials the tickets were fallen on the ground in the bus and therefore there was some confusion and the passengers apprehending action against them informed the officials that tickets were not issued. Alternatively, it is contended that even assuming that such a charge has been proved against the petitioner, the punishment of removal from service is too excessive and disproportionate to the offence alleged to have been committed by the petitioner -workman. The learned Counsel also contended that the Labour Court has failed to exercise the jurisdiction conferred under Sec. 11 -A of the Industrial Disputes Act, as it was the duty of the Labour Court to consider the proportionality of the punishment. It is also stated that the Labour Court merely followed a decision of this Court and concluded that it has no power to go into the proportionality of the punishment. It is also stated that a single Judge of this Court has considered the decision, which was relied upon by the Labour Court and held that the said decision was not rendered without reference to the provisions of Sec. 11 -A of the Industrial Disputes Act. Therefore, it was held by the learned single Judge that the said decision has no application to the cases, which are coining under the provisions of Sec. 11 -A of the Act. It is therefore contended that in view of the decision of the learned single Judge, the order of the Labour Court is clearly in error. The learned Counsel also relied upon a decision of the Supreme Court in the case of Colour -Chem Limited v/s. A.I. Alaspurkar, where the Supreme Court has ordered reinstatement of a worker, whose services were terminated, holding that the punishment was shockingly disproportionate. Therefore, it is contended that the petitioner is entitled for reinstatement with all consequential benefits. 4. The learned Standing Counsel for the Corporation, on the other hand, supported the order of the Labour Court. 5. After considering the rival submissions and also the decisions cited before me, I am of the opinion that the order of the Labour Court is not proper and just in confirming the order of removal from service. The Labour Court, though upheld the findings of the Enquiry Officer, failed to consider the proportionality of the punishment in the light of the provisions of Sec. 11 -A of the Act. Further, the decision of the Division Bench, which was referred to and relied upon by the Labour Court, was considered by a single Judge of this Court in Divisional Manager, APSRTC v/s. E. Raga Reddy, and it was held that the said decision of the Division Bench has no application with reference to the cases which are falling under the provisions of Sec. 11 -A of the Act. Further, the decision of the Supreme Court, which was relied upon by the learned Counsel in case of Colour -Chem Limited (supra) also supports the contention of the learned Counsel for the workman. The services of the petitioner were terminated or the ground that he was involved in cash and ticket irregularities involving a sum of Rs. 5.00. Even assuming that the said misconduct alleged against the petitioner is proved, still the punishment of removal from service is shockingly disproportionate and is liable to be set aside. 6. Under the above circumstances the order of the Labour Court is set aside insofar as the confirmation of the order of removal passed by the 3rd respondent. Consequently, the 3rd respondent is directed to reinstate the petitioner, within a period of two months from the date of receipt of this order. The petitioner is entitled to the benefit of continuity of service, but without back wages."
(3.) IN the case of Ishwar Chandra Jayaswal v/s. Union of India and others : 2014 (3) SCJ 276 : (2014) 2 SCC 748 : 2014 (3) ALT 14.2 (DN SC) (supra), the Hon'ble Apex Court at Paras 6 to 8, held as follows: "6. The Appellant before us is presently 75 years of age. At the time when the Articles of Charge had been served upon him, he had already given the best part of his life to the service of the Respondent -Indian Railways. It has been contended before us that the three charges that have been sustained against the Appellant reflected only the tip of the iceberg; however, there is no material on record to substantiate this argument of Respondents. In the present case, the Appellant has served the Respondents for a period of twenty three years and removal from service for the two charges levelled against him shocks our judicial conscience. Part III of The Railway Servants (Discipline and Appeal) Rules, 1968 contains the penalties that can be imposed against a Railway servant, both Minor Penalties as well as Major Penalties. 7. We have already noted that it has not been established that the Appellant had, as a matter of habit or on a wide scale, made illegal demands from Railway servants desirous of obtaining a Fit Certificate. However, since two of the three charges have been proved, we are of the considered opinion that the imposition of compulsory retirement i.e. Penalty 6(vii) would have better and more appropriately met the ends of justice. While this would have instilled sufficient degree of fear in the mind of the employees, it would also not have set at naught several years of service which the Appellant had already given to the Respondent -Indian Railways. We think that deprivation of retiral benefits in addition to loss of service is entirely incommensurate with the charge of the Appellant having taken very small sums of money for the issuance of Fit Certificate to other Railway employees. 8. It is in these premises that the Appeals are accepted and the impugned Order dated 11.10.2010 is set aside. The Appellant shall be deemed to have compulsorily retired under Part -III Penalty 6(vii) of the aforementioned Railway Rules with effect from 22.1.1991. If he is entitled to retiral or other benefits on the said date, the Respondents shall make necessary payment within three months from today. This decision is restricted to the facts of the present case." In the case of Md. Rasheed v/s. Managing Director, APSRTC and others : 2015 (1) ALT 172 (D.B) (supra), this Court at Para 8, held as follows: "8. This finding itself would have been sufficient to doubt the charges, atleast in part. Though the Hon'ble Supreme Court took the view that it is not essential to examine the passengers in the domestic enquiry in the matters of this nature, atleast when the factum of issuance of reissued tickets is disputed, the Corporation ought to have ensured that the concerned passengers are examined. If it were to be established that the passengers travelled in the same bus on an earlier trip on the same day, a totally different picture would have emerged. The livelihood of not only the appellant but also his entire family is at stake, and it depended upon the version of one or two passengers. The possibility of the passenger, who happened to travel on the same route, showing the ticket purchased by him earlier, to avoid imposition of fine by the checking staff, cannot be ruled out. Though the appellant cannot be given a clean -chit, on such doubts, atleast a case can be made out under Sec. 11 -A of the Industrial Disputes Act, enabling the Labour Court to mould the relief.";