Derangula Krishna Mohan, v. The Depot Manager,

THE HON'BLE SRI JUSTICE M.S.K.JAISWAL WRIT PETITION No.22504 OF 2004 ORDER:

This writ petition is filed by the workman seeking issuance of a writ of certiorari to quash the award passed by the Industrial Tribunal-cum-Labour Court, Ananthapur in I.D.No.52/2001, dated 24.01.2004.

2. The petitioner was appointed as Conductor in the APSRTC on 12.04.1990. It is alleged that on 28.09.1996 he was found to have committed some cash and ticket irregularities while conducting bus bearing No.AEZ 2865 in the route Tadipatri to Levuni Uppaladu, for which a charge sheet was issued to him on 09.10.1996 framing the following charges;

i.

"For having collected an amount of Rs.20/- from a passenger who is traveling from Tadpatri to D.Uppapadu ex.stages 1 to 9 along with 6 full bags of urea towards passenger ticket fare and luggage fare at the boarding point itself and issued only passenger ticket No.120/195468 of Rs.9/- denm., and failed to issue luggage tickets which constitutes misconduct under Reg.28(vi)(a) and (xxx) of APSRTC Employees (conduct) Reg.1963.

ii.

For having failed to observe the rules issues while you were conducting the bus No.AEZ 2865 on route Tadipatri to D.Uppalapadu on 28.09.1996, which constitutes misconduct under Reg.28 (xxxi) of APSRTC Employees (Condcut) Reg.1963.

iii.

For having closed all denominations in the S.R.up to stage No.5 without completing the above ticket issues conduct under Reg.28(xxxii) of APSRTC Employees (Condcut) Reg.1963.

iv.

For having failed to account the ticket No.407/505020 of Rs.2.50 denm, in the S.R. even though issued the ticket at stage No.3, which constitutes misconduct under Reg.28 (xxxii) of APSRTC Employees (Conduct) Reg.1963.

v.

For having punched the tickets bearing No.080680 to 695 of Rs.6.75 den. At stages from 7 and stage to 'O' instead of punching from '01' to '07' and also failed to account the above ticket issues in the S.R. which constitutes misconduct under Reg.28(xxxiii) of APSRTC Employees (Conduct) Reg.1963.

vi.

For having issued Rs.7.75 denm., tickets e.2 bearing No.051/381482 and 83 but failed to account the above ticket issues in the S.R. which constitutes misconduct under Reg.28(xxxii) of APSRTC Employees (Conduct) Reg.1963 vii.

For having closed Rs.10/- denm, at stage No.5 in the SR as 201 instead of 208 even though the tickets from 200 to 207 were issued and shown as '1' issue in the SR which constitutes misconduct under Reg.28(xxxii) of APSRTC Employees (Condcut) Reg.1963. Thereafter, enquiry was conducted and basing on the enquiry report dated 31.01.1997, a show cause notice of removal dated 15.12.1996 was issued to the petitioner. Though the petitioner submitted his explanation to the show cause notice, he was removed from service by proceedings dated 07.03.1997 of the 1st respondent. Aggrieved thereby, the petitioner preferred appeal and review, which were rejected on 14.02.1998 and 30.09.1998 respectively. Against which, the petitioner raised industrial dispute being I.D.No.52/2001 before the Industrial Tribunal-cum-Labour Court, Anantapur. However, the Industrial Tribunal dismissed the said industrial dispute by award dated 24.01.2004. Questioning the said award, the present writ petition is filed.

3. The Management/APSRTC filed detailed counter denying the contentions of the petitioner. It is stated that a check was exercised on 28.09.1996 while the petitioner was conducting the bus on route Tadipatri to Uppalapadu and found to have committed certain cash and ticket irregularities. The checking officials recorded the statements of the passengers and issued a memo to the petitioner. The petitioner did not give any reply to the said charge sheet and hence the enquiry was ordered. The Enquiry Officer after going through the available records and depositions of witnesses submitted his report on 30.01.1997 holding the petitioner guilty of the charges leveled against him. After issuing show cause notice, an order of removal was passed on 07.03.1997. The petitioner preferred appeal and review, which were

dismissed confirming the order of removal. The Labour Court also considered the evidence and material on record and rightly rejected the claim of the petitioner.

4. The contention of the learned counsel for the petitioner is that the Management and the Industrial Tribunal failed to consider that the passenger changed his version, who stated before him that the 6 urea bags belong to different individual persons and thereafter, he changed his version before the checking officials that the said 6 urea bags belong to him. The further contention of the petitioner is that basing on the version of the passenger, the petitioner could not issue luggage tickets. It is further contended that basing on false statement of the passenger, he was imposed severe punishment of removal from service, which is improper.

5. The learned counsel for the respondent/Management submits that considering the fact that the passenger gave spot statement that he has given Rs.20/- to the petitioner for himself and for luggage but the petitioner issued only ticket of Rs.9/- and he did not issue luggage tickets voluntarily, dismissed the industrial dispute, which does not warrant for any interference.

6. The question that arises for consideration is whether the award passed by the Labour Court is proper.

7. The admitted fact is that the petitioner was working as a Conductor ever since the year 1990. He has been removed from the service in the year 1997. On 23.09.1996, he was on duty in the bus going from Tadipatri to Devunippullapadu and at about 10.15 hours, at Stage No.5, the inspecting officials checked the bus and at that time, they found that from one passenger the Conductor collected Rs.20/- but issued a ticket only for Rs.9/- and no other tickets were issued. The said passenger was carrying six urea bags and as per rules, luggage fare has to be collected. The petitioner/Conductor having collected the amount did not issue the luggage fare ticket and thereby committed an act of misconduct.

The explanation of the petitioner/Conductor was that the six urea bags belong to five other passengers and as per the rules in force, the luggage being carried by each of the passengers was within the limits. However, the petitioner/Conductor failed to verify as to who those six passengers were carrying the urea bags. During the course of enquiry, it has been proved that even though the amount was collected, the petitioner/Conductor failed to issue the tickets.

8. The other charges are with regard to the improper punching of ticket, making the

entries in the S.R. sheet and not maintaining properly the issue and closure data. The Enquiry Officer found the petitioner/Conductor guilty on 07.03.1997 and after following the due procedure, he has been removed from service. The petitioner/Conductor preferred the appeal and also revision, which were rejected on 14-02-1998 and 30-09-1998 respectively. Thereafter, the petitioner preferred I.D.No.52 of 2001 and after enquiry, the Labour Court, Ananthapur, by order, dated 24-10-2004, has dismissed the Industrial Dispute confirming the punishment of removal from service.

9 . The contention of the petitioner/Conductor is that during the course of departmental enquiry, excepting for the spot report prepared by the checking officials, no other evidence was produced. The person who claimed to have paid the amount has not been examined. Therefore, the findings of the Enquiry Officer and the consequential dismissal of appeal and revision need to be set aside.

10. The record, on the other hand, shows that the petitioner/Conductor failed to offer any explanation and during the course of domestic enquiry, one Y.R.P.Rao was examined and cross-examined by the delinquent. The petitioner also gave a statement before the Enquiry Officer. After considering the evidence on record, the Enquiry Officer found the petitioner/Conductor guilty and imposed the punishment of removal. Therefore, it cannot be said that no reasonable opportunity was afforded to the petitioner during the course of domestic enquiry. Learned Counsel appearing for the petitioner relied upon a decision of Supreme Court reported in NIRMALA J.JHALA v.

STATE OF GUJARAT (2013) 4 SCC 301) wherein it is laid down that the evidence recorded in preliminary enquiry cannot be used in regular enquiry as the delinquent is not associated with it and opportunity to cross-examine the persons examined in such enquiry is not given. It is further laid down that using such evidence would be violative of the principles of natural justice. There is no dispute about the said proposition of law. If the witness who has been examined during the preliminary enquiry and has not been examined during the domestic enquiry, reliance cannot be placed upon the statement of such a witness during the course of preliminary enquiry for the reason that no opportunity was afforded to the delinquent to subject such a witness to cross-examine so as to determine the truthfulness or otherwise of such a witness.

However, in the instant case, the official by name Y.R.P.

cross-examination. Therefore, there is no substance in the submission of the learned Counsel appearing for the petitioner/Conductor that the domestic enquiry was vitiated for want of reasonable opportunity to the petitioner to cross-examine the material witness who was examined during the course of preliminary enquiry.

11. The other charges are, no doubt, procedural in nature but they all show that the petitioner/Conductor was negligent in maintaining the statistical record properly, thereby keeping it open for certain tickets to be mis-used for deriving certain advantages thereof. The explanation of the petitioner that at the relevant point of time, he was not feeling well in view of the unestablished sickness of his wife during the night cannot be a valid explanation for improper discharge of duties by the Conductor.

1 2 . Learned Counsel appearing for the respondent/APS RTC relied upon the following authorities in support of his contention that the petitioner/Conductor being entrusted with the responsible job of trust and confidence, has failed to discharge his duties diligently and thereby the punishment of removal is just, proper and reasonable and by no stretch of imagination, can it be said that the said punishment is disproportionate to the gravity of the charge. 1 3 . I n MD.NORTH-EAST KARNATAKA ROAD TRANSPORT CORPN. V. K.MURTI (2006) 12 SCC 570), the Supreme Court after referring to several decisions on the subject held as under in para 9:- "In the instant case, the position held by the employee (Conductor) is one of faith and trust. A Conductor holds the post of trust.

A person guilty of breach of trust should be imposed punishment of removal from service. The respondent's conduct is not collecting the requisite fare at the designated place from persons who had travelled were in violation of various regulations contained in the provisions of the Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971."

14. In DIVISIONAL CONTROLLER, N.E.K.R.T.C. v. H.AMARESH (2006 (3) LLN 697 - Civil Appeal No.7993 of 2004, dated 17-07-2006), the Supreme Court at para 13 held as under:-

"This Court in the Judgment Regional Manager, Rajasthan State Road Transport Corporation v. Ghanshyam Sharma (3-Judges) (2002(2) LLN 1118), held that the proved acts of misconduct either to a case of dishonesty or of gross negligence and bus Conductors who by their actions and inactions cause financial loss to the Corporation ought not to be retained in service."

15. In V.RAMANA v. APSRTC (2001 (5) ALD 427 (FB), A Full Bench of this Court, after referring to several decisions on the subject, held as under in para 19:- "For the reasons aforementioned, we are of the opinion that the quantum of amount misappropriated or embezzled by a delinquent official may not be taken into consideration in deciding the adequacy or otherwise of the punishment and the punishment of removal from service for such embezzlement or misappropriation cannot be termed as shockingly disproportionate."

16. From the above authorities, it is evident that a Conductor who do not perform his duties in accordance with the rules and causes loss to the Corporation is not entitled to be continued in service irrespective of the quantum of amount that is involved. In the instant case, the petitioner/Conductor has not issued the tickets for the luggage being carried by a passenger which itself is in contravention of the rules. That apart, there is allegation that he took a sum of Rs.20/- from the said passenger but issued only ticket of a '9' rupee denomination. He is also guilty of other irregularities in maintaining the statistical record such as improper punching of tickets and not making the proper entries in the record. The explanation of the petitioner/Conductor is wholly untenable.

17. The Enquiry Officer and the other statutory authorities, for valid reasons, ordered for his removal from service. The Labour Court, after having gone through the entire material on record, did not interfere with the said punishment.

18. Learned Counsel appearing for the petitioner/Conductor submits that considering the nature of the material on record, the petitioner/Conductor may be directed to be reinstated into service as a fresh candidate and he is prepared to forego his service and monetary considerations till the date of reinstatement. In other words, learned Counsel submits that the removal order be set aside by directing the

reinstatement of the petitioner without any back wages or continuity of service. This relief, in my opinion, cannot be granted to the petitioner/Conductor for the reason that he has lost the trust and confidence of the employer and it is also submitted that even in the past, on several occasions, he was censured and his increments were also deferred. Therefore, the petitioner/Conductor is not entitled to any relief. All the authorities have properly appreciated the material on record and removed the petitioner/Conductor from the service. There are no merits in the writ petition and the same is liable to be dismissed.

19. The Writ Petition is accordingly dismissed. No order as to costs. Pending miscellaneous applications, if any, shall stand closed in consequence.

__________________ M.S.K.JAISWAL,J Date: .11.2015 Dsr/Smr