1 I.D. No.106/2018 Industrial Tribunal-cum-Labour Court, Dt.22-06-2020. Ananthapuramu.
BEFORE THE CHAIRMAN-CUM-PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ANANTAPURAMU
Present: Sri Y.Lakshmana Rao Chairman-cum-Presiding Ofcer
MONDAY, THE 22nd DAY OF JUNE, 2020
I.D.No.106/2018 Between: The Regional Secretary, A.P.S.R.T.C., Employees Union, Anantapuramu, On behalf of C.K.Rafi Basha, E.No.575503, Driver of Puttaparthy Depot, Presently working at Dharmavaram depot.… Petitioner/Workman.
AND
1)The Depot Manager, A.P.S.R.T.C., Puttaparthy Depot.
2)The Deputy Chief Trafc Manager, A.P.S.R.T.C., Anantapur.
3)The Regional Manager, A.P.S.R.T.C., Anantapur. … Respondents/Management.
This is an Industrial Dispute existing between the Workman and the Management and it is referred by the Joint Commissioner of Labour, Kurnool in Proceedings No.D1/502/2018 dated 14-03-2018 under Section 10 (1) of the Industrial Disputes Act, 1947.
This Industrial Dispute coming on 22-06-2020 for hearing before me through electronic modes from Sri P.Ramachandra, Advocate for the Workman and of Sri S.Chandrasekhara, Law Ofcer for the Respondents/Management and the matter having stood over for consideration till this day the Court passed the following.
A W A R D
A reference was sent for adjudication by the Joint Commissioner of
Labour, Kurnool under Sec.10 (1) & (2), Section 33-C (1) & 34 (1) of the
Industrial Disputes Act, 1947 (for brevity ‘the Act’) in Proceedings
No.D1/502/2018 dated 14-03-2018, to the following efect:
i.Whether the Regional Secretary, APSRTC Employees Union, Anantapur is justifed in demanding the revocation of punishment order No.PA/675(116)/2015-RM.A, dt.28-12- 2015 issued by the Regional Manager, APSRTC, Anantapur against the employee Sri C.K.Rafi Basha, E.No.575503 by postponement of annual increment for a period of two years besides treating the suspension period as not on duty?
ii.If not, to what relief the employee is entitled?
2 I.D. No.106/2018 Industrial Tribunal-cum-Labour Court, Dt.22-06-2020. Ananthapuramu.
2.Pursuant to the reference the Workman made his appearance through his counsel and submitted a claim statement which, in short, as under:
3. The workman [C.K.Rafi Basha] was appointed as Driver in the
Respondents-Corporation in the year 1997. Since the date of joining into service, Workman had been discharging his duties sincerely, honestly and to the utmost satisfaction of his superiors. The Depot Manager, Puttaparthy
Depot issued a charge sheet dt.15-11-2014 to the Workman which runs as under:
i.“For having failed to follow the rule “ISSUE and START” when checked by the TTI’s of HES/Puttur while you were conducting service on route Tirupati to Puttaparthy with the vehicle No.AP- 02-Z-0210 on 30-10-2014, which constitutes misconduct under Regulation 28 (xxxi) of APSRTC Employees (Conduct) Regulations, 1963”.
ii.“For having failed to issue ticket to a batch of fve passengers who boarded your bus at Tirupati and bound for Bakarapet ex- stages 21 to 19 though you have collected Rs.140/- @ Rs.28/- for each) from them towards fare at the place of boarding itself, but not issued tickets to them and issued break down report as a ticket which was detected by the TTI’s of HES/Puttur when checked your bus at Bakarapeta on 30-10-2014 at about 23:50 hours and the TTI’s have issued TPT No.50212 (E.1 for Rs.140/-) from your TIM. Which shows your malafde intention to pocket out the revenues of the Corporation if the check is not exercised, which constitutes misconduct under Regulation 28 (vi)(a) of APSRTC Employees (Conduct) Regulations, 1963”.
iii.“For having updation of TIM up to stage No.20 (Rangampeta) without entering above issue, which constitutes misconduct under Regulation 28 (xxxii) of APSRTC Employees (Conduct) Regulations, 1963”.
4.The Workman denied the allegations leveled against him and submitted that the charges leveled against him were false, baseless and the same were denied. Workman further stated that while he was performing duty with TIM machine on the route Tirupati to Puttaparthy, he issued tickets to all the passengers in the bus with difculty in generating tickets. Workman collected Rs.140/- from a batch of fve passengers who boarded the bus at
Tirupati bound for Bakarapeta and fed tickets in TIM machine, but the machine did not generate ticket. Workman waited for 5 minutes for the output of tickets, but there was no result. Hence, workman, in order to show feeding of tickets in the TIM machine, gave TIM generated break-down report to the passengers. Workman wanted to rectify the TIM machine at Piler as he did not know the trouble shooting of the TIM machine. Workman was not supplied with M.R book, so he was unable to issue M.R receipt to the 3 I.D. No.106/2018 Industrial Tribunal-cum-Labour Court, Dt.22-06-2020. Ananthapuramu.
passengers in the charge. Workman stated the realities to the checking ofcials. There was no malafde intention on the part of the Workman.
5.A farce eniuiry was conducted. The eniuiry was illegal, invalid and arbitrary. During the eniuiry, Checking ofcials stated about the TIM machine trouble. The Depot Manager without seeing the material on record passed the illegal, invalid, unjust and arbitrary removal order against the workman. Workman failed 7th class and he is not well versed with the English, so he could not rectify the error occurred while generating ticket printing. The
Disciplinary Authority without seeing the factual side had removed the
Workman from service vide proceedings dt.14-05-2015. Workman preferred appeal before the Deputy Chief Trafc Manager, Anantapuramu and the same was rejected vide proceedings dt.20-07-2015. Workman preferred review application before the Regional Manager, Anantapuramu and the same was considered and reinstated the Workman into service, but imposed punishment of deferment of annual increment for a period of two years with cumulative efect. The punishment imposed by the Review Authority is excessive and reiuested to set aside the same and to direct the Respondents to restore the deferred annual increment without any punishment and to pay incremental arrears and also to treat the period from the date of suspension to till reinstatement as ‘on duty’
6.Pitting against the version of the workman, the Respondents, who came on record, got fled Counter denying the averments of the claim petition and contended that the workman was appointed as Casual Driver in the Respondents-Corporation on 29-01-1997 and his services were regularized w.e.f., 01-07-2009. The past service record of the Workman is not good. Workman was censured on two occasions, annual increments of the workman were deferred on fve occasions and amounts were recovered from the salary of the workman on thirteen occasions.
7.It was reported by the TTI’s of Headiuarters Enforcement Siuad,
Puttur that they had exercised check on 30-10-2014 on the service vehicle
No.AP-02-Z-0210 Driven/Conducted by the workman on route Tirupati to
Puttaparthy at stage No.19 Bakarapeta. They detected that Workman collected an amount of Rs.140/- from a batch of fve passengers for the journey from Tirupati to Bakarapeta. It was bounden duty of the Workman to issue tickets and start the bus, but issued break-down report to the said batch of passengers with malafde intention in order to grab the revenues of the Corporation. In view of prima-facie case and basing on the evidence available on record, the workman was issued a charge sheet dt.15-11-2014.
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All relevant documents and charge sheet were sent to the workman. The workman acknowledged the same and submitted his explanation. The
Disciplinary Authority in order to provide further opportunity to defend his case ordered for conducting domestic eniuiry into the case duly nominating the Assistant Manager (Eniuiries), R.M’s ofce, Anantapur as an Eniuiry
Ofcer.
8.In the course of eniuiry, the statement of G.Gopi, TTI of HES,
Puttur was recorded. The workman availed the opportunity of cross- examining the witness. The workman also ofered his statement during the eniuiry. A fair and proper eniuiry was conducted into the case in accordance with C. C & A., Regulations duly following the principles of natural justice. The Eniuiry Ofcer on the basis of evidence available on record submitted his report to the Disciplinary Authority holding the charges leveled against the workman as proved. Basing on the entire evidence available on record, the Disciplinary Authority came to a provisional conclusion that there were no points worth consideration. Therefore, the 1st respondent issued show cause notice of removal vide notice dt.27-04-2015.
The workman acknowledged the same but failed to submit his explanation.
The Disciplinary Authority felt that there were no fresh points worth consideration to revise the proposed punishment of removal, as such, he issued fnal orders of removal vide proceedings dt.14-05-2015. The workman preferred appeal before the Deputy Chief Trafc Manager, Anantapur and the same was rejected vide proceedings dated 20-07-2015. Workman preferred
Review application before the Regional Manager, Anantapur and the same was considered and reinstated the workman into service and as a measure of punishment the annual increment of the workman was deferred for a period of two years with cumulative efect vide proceedings dt.28-12-2015.
There were no procedural lapses in conducting the eniuiry. The action taken by the Review Authority was just and reasonable and reiuested the Court to uphold the order by dismissing the claim statement by answering the reference negatively.
9.In the course of iniuiry before this Tribunal, Workman did not choose to adduce oral evidence, but Ex.W-1 was marked on his side. On behalf of the Respondents Ex.M-1 to Ex.M-24 were marked, no oral evidence was adduced on behalf of the Respondents.
10.In the eniuiry learned counsel for the Workman fled a Memo that Workman was not iuestioning the validity of the domestic eniuiry formally and further stated that the punishment imposed was 5 I.D. No.106/2018 Industrial Tribunal-cum-Labour Court, Dt.22-06-2020. Ananthapuramu.
disproportionate to the gravity of ofence committed and prayed to reappraise the evidence on record and to adjudicate the dispute as per the principles of natural justice.
11.I have perused the record and written arguments submitted by learned counsel for workman and learned Law Ofcer. The learned counsel for workman and learned Law Ofcer submitted their oral arguments through
WhatsApp video-conferencing and also sent their written arguments through email to this court reiuesting to dispose of the case basing on the written arguments due to continuation of lock-down owing to COVID-19 efect.
Thoughtful consideration was bestowed to the contentions raised in the written arguments submitted by learned counsel for workman and learned
Law Ofcer for Respondents.
12. Now, the points for consideration and determination are:
i.Whether the Regional Secretary, APSRTC Employees Union, Anantapur was justifed in demanding the revocation of punishment order No.PA/675(116)/2015-RM.A, dt.28-12- 2015 issued by the Regional Manager, APSRTC, Anantapur against the employee Sri C.K.Rafi Basha, E.No.575503 by postponement of annual increment for a period of two years besides treating the suspension period as not on duty?
ii.If not, to what relief the employee is entitled?
POINT No.1:-
13.The learned counsel for the Workman would submit that the charges leveled against the Workman were false and baseless; that
Workman collected Rs.140/- from a batch of fve passengers who boarded the bus at Tirupati bound for Bakarapeta and fed tickets in TIM machine, but the machine did not generate ticket; that Workman waited for 5 minutes for the output of tickets, but there was no result; therefore, workman, in order to show feeding of tickets in the TIM machine, gave TIM generated break-down report to the passengers; that Workman wanted to rectify the TIM machine at Piler as he did not know the trouble shooting of the TIM machine; that
Workman was not supplied with M.R book, so he was unable to issue M.R receipt to the passengers in the charge; that Workman failed 7th class and he is not well versed with the English, so he could not rectify the error occurred while generating ticket printing; that Workman had no Conductor’s license; that no person shall act as a Driver unless he holds the license under Sec.29 (1) of the Motor Vehicle Act, 1988; that Workman was not iualifed for the post of Conductor; that the duties and responsibilities of the Drivers and
Conductors are separate in nature; that the workman had not misappropriated any amount of the Corporation and Workman had not 6 I.D. No.106/2018 Industrial Tribunal-cum-Labour Court, Dt.22-06-2020. Ananthapuramu.
committed any misconduct and there was no loss to the Corporation; and that a farce eniuiry was conducted. It is further argued that the Eniuiry
Ofcer failed to take into consideration the material on record and gave fnding with predetermined mind; that the Depot Manager erroneously passed order which was also confrmed by the Appellate Authority, but the 3rd respondent modifed in revision the penalty by passing impugned order under challenge. The impugned penalty is also wholly unsustainable either on facts or on rules and it is totally disproportionate and excessive to the charges allegedly proved. Therefore, the learned counsel for the Workman urged to set aside the impugned order, in the interest of justice.
14.Confounding the contentions of the learned counsel for the workman, the learned Law Ofcer would contend that TTI’s of Headiuarters
Enforcement Siuad, Puttur reported that they had exercised check on 30-10- 2014 on the service vehicle No.AP-02-Z-0210 Driven/Conducted by the workman on route Tirupati to Puttaparthy at stage No.19 Bakarapeta; that they detected that Workman collected an amount of Rs.140/- from a batch of fve passengers for the journey from Tirupati to Bakarapeta; that it was bounden duty of the Workman to issue tickets and start the bus, but issued break-down report to the said batch of passengers with malafde intention in order to grab the revenues of the Corporation; that in view of prima-facie case and basing on the evidence available on record, the workman was issued a charge sheet; that Workman performed his duty with malafde intention to grab the revenue of the Corporation; that eniuiry was conducted by providing reasonable opportunities to the Workman by complying with the principles of natural justice and justifable order was passed by the Depot
Manager, which order was modifed by the Review Authority by passing a reasonable order. So, it does not reiuire any interference on whatsoever grounds and urged to dismiss the claim statement by answering the reference negatively.
15.Having keenly perused the documents viz., Ex.M-1 the Check sheet, Ex.M-2 the Charge Memo, Ex.M-3 Statement of the passenger, Ex.M-4
Statement of the Workman, Ex.M-5 is the Cover containing top punched tickets, Ex.M-6 Photo copy of punched tickets, Ex.M-7 the STAR
Doc.No.133/378249, Ex.M-8 TTIs Special report, Ex.M-10 Photo copy of
Charge sheet, and Ex.M-16 the Domestic eniuiry report, it is clear that
Workman collected an amount of Rs.140/- from a batch of fve passengers for the journey from Tirupati to Bakarapeta, but issued break-down report to the said batch of passengers with malafde intention in order to grab the 7 I.D. No.106/2018 Industrial Tribunal-cum-Labour Court, Dt.22-06-2020. Ananthapuramu.
revenues of the Corporation. Under Ex.M-9 workman was kept on Depot spare duty. Vide Ex.M-11 Photo copy proceedings, the workman was placed under suspension. Under Ex.M-10 Charge sheet was issued on the workman.
Ex.M-12 is the Acknowledgement of the Workman. Under Ex.M-13
Explanation was submitted by the Workman. As per Ex.M-14 Eniuiry Ofcer was allotted.
16.Ex.M-15 are Call letters for eniuiry (1& 2). vide Ex.M-16 the
Domestic eniuiry report was submitted. Later, under Ex.M-17 Objections were called about eniuiry. As per Ex.M-18 Objections were submitted by the
Workman. Vide Ex.M-19 Show cause notice of removal from service was issued. Under Ex.M-20 Explanation was submitted by the Workman. As per
Ex.M-21 Proceedings the Disciplinary Authority removed the workman from the service. Under Ex.M-22 workman acknowledged it. As per Ex.M-23 proceedings the Appellate Authority did not incline to interfere with the penalty imposed by the 1strespondent. Howbeit, Ex.M-24/Ex.W-1
Proceedings of the Review Authority, the workman was reinstated into service but imposed the penalty now under challenge.
17.As seen from the record, it is vivid that workman failed to issue ticket to a batch of fve passengers, who boarded service bus at Tirupati and bound for Bakarapet ex-stages 21 to 19, albeit workman had collected
Rs.140/- @ Rs.28/- for each from them towards fare at the place of boarding itself. However, the workman did not issue tickets to fve passengers and issued break down report as a ticket which was detected by the TTI’s of HES/
Puttur, when checked bus at Bakarapeta on 30-10-2014 at about 23:50 hours and the TTI’s have issued TPT No.50212 (E.1 for Rs.140/-) from TIM. It showed workman’s malafde intention to pocket out the revenues of the
Corporation, if the check was not exercised. It constituted misconduct under
Regulation 28 (vi)(a) of ‘the Conduct Regulations’. Further, Workman failed to follow the rule “ISSUE and START”, when checked by the TTI’s of
HES/Puttur while he was conducting service on route Tirupati to Puttaparthy with the vehicle No.AP-02-Z-0210 on 30-10-2014. It constituted misconduct under Regulation 28 (xxxi) of APSRTC Employees (Conduct) Regulations, 1963 (for brevity ‘the Conduct Regulations’. Furthermore, workman updated
TIM up to stage No.20 (Rangampeta) without entering above issue. It constituted misconduct under Regulation 28 (xxxii) of ‘the Conduct
Regulations’.
18.During the eniuiry conducted by the Assistant Manager (Eniuiries), R.M’s ofce, Anantapur, the Statement of G.Gopi, TTI of HES, 8 I.D. No.106/2018 Industrial Tribunal-cum-Labour Court, Dt.22-06-2020. Ananthapuramu.
Puttur, was recorded and it is clear that the charges were proved beyond any reasonable doubt. Indeed, there was no basis to contend that the charges leveled against Workman were false and baseless. The witness supported the charges in the eniuiry. Nay, those statements inspired confdence.
Checking Ofcial would not have any animosity on the workman as they were discharging their legitimate duties, after all. It is absolutely false to contend that the Workman had not committed any misconduct and there was no loss to the Corporation. The eniuiry was conducted on correct lines and the Eniuiry Ofcer rightly took into consideration the material on record and gave appropriate and correct fndings. In fact, the eniuiry was held by the competent authority. The eniuiry was held according to the procedure prescribed in that behalf by the Rules of APSRTC.
19.There were no violations of the principles of natural justice in conducting the proceedings. The Authorities/Disciplinary Authority or the
Eniuiry Ofcer had not disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case.
The authorities had not allowed themselves to be infuenced by irrelevant or extraneous considerations. The conclusion, on the very face of it, was not so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion. The eniuiry ofcer had not erroneously failed to admit the admissible and material evidence. The disciplinary authority had not erroneously admitted inadmissible evidence which infuenced the fndings. The fndings of facts are not based on no evidence. There was no misreading of evidence by the eniuiry ofcer. Further, it is pertinent to mention here that even in the course of eniuiry the learned counsel for the
Workman fled a Memo that Workman was not iuestioning the validity of the domestic eniuiry procedurally and reiuested to reappraise the same along with the merits of the case. It is clearly established that there were no procedural irregularities in conducting the domestic eniuiry. Therefore, it is held that the domestic eniuiry is held validly conducted and fndings were arrived at correctly. Thus, it is clear that Workman collected an amount of
Rs.140/- from a batch of fve passengers for the journey from Tirupati to
Bakarapeta, but issued break-down report, failed to follow the rule “ISSUE and START”, and workman updated TIM up to stage No.20 (Rangampeta) without entering above issue. Thereby Workman performed his duty with malafde intention to grab the revenue of the Corporation.
20.Learned Law Ofcer relied on a decision in Managing Director,
North East Karnataka Transport Corporation v. K.Maruti 2007 LAB.IC
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185 wherein Hon’ble Supreme Court at para No.9 held that when Driver of the bus failed to collect reiuisite fare from passengers, it is violative of regulations of the corporation; the Driver holding the post of trust of the
Corporation and he is guilty of the breach of trust, if it is established in the eniuiry and the punishment of removal from service is not shockingly disproportionate and further held that alteration to reinstatement into service was not justifed.
21.Yet, the Learned Law Ofcer for the respondents also relied on a decision in V.Ramana v. A.P.S.R.T.C., 2005 (7) SCC 338 it is held that the courts should not interfere with administrator’s decision unless it was illogical or sufered from procedural impropriety or was shocking to conscience of court. In U.P.S.R.T.C., v. Suresh Chand Sharma 2010 (6)
SCC 555 it is held that in a domestic eniuiry, complicated principles and procedure laid down in the code of Civil Procedure, 1908 and the Indian
Evidence Act, 1872 do not apply. It is further in cases involving corruption there cannot be any other punishment than dismissal.
22.Yet again, in A.P.S.R.T.C., v. B.Swamy 2007 (12) SCC 40 it is held that a Driver of a bus enjoys the faith reposed in him; he accepts the responsibility of honestly collecting fares from the passengers after issuing proper tickets and is obliged to account for the money so collected; if conductors were to be dishonest in the performance of their duties, it would cause serious pecuniary loss to the employer. While holding so, the Hon’ble
Supreme Court confrmed the order of the Labour Court in dismissing the
Industrial Dispute by setting aside the judgment and order of the Hon’ble
Division Bench of the Hon’ble High Court by restoring the order of the learned Single Judge in dismissing the writ petition.
23.Further, in Rajasthan S.R.T.C. v. Kamruddin 2009 (8) Scale 182 it is held that the Labour Court was not justifed in interfering with the punishment of dismissal, though under section 11-A of ‘the Act’ the Labour
Court has jurisdiction and power of interfere with the iuantum of punishment, but the discretion to be used judiciously. Howbeit, in Managing
Director, North East Karnataka v. V.K.Murthi 2007 LAB I.C, 185 while dealing with the issue of iuantum of punishment the Hon’ble Supreme Court held that interference with the punishment of removal from service not shockingly disproportionate and alteration to reinstatement in service was not justifed.
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24.In UPSRTC v. Pradeep Kumar 2016-III-LLJ 522 (SC), it was held that collecting fare from passengers and not issuing tickets to them would amount to criminal breach of trust and once the same was proved reinstatement of the workman was not justifed. However, in the said case, it was also held that in appropriate cases interference by the Labour Court invoking power under Section 11-A of ‘the Act’ with punishment awarded was justifed. Ultimately in Pradeep Kumar case (supra) the Hon’ble Supreme
Court restored the order of punishment.
25.Nay, in UPSTRC v. Suresh Paul AIR 2006 SC 3227 it was held that reducing the punishment to that of censure entry and stoppage of increments with cumulative efect by way of modifcation ordered by the
Hon’ble High Court was found fault by the Hon’ble Supreme Court, when
there was a misconduct of cash and ticket irregularities were proved.
26.In view of the above settled propositions of the law, and apropos of the penalty imposed by the 3rd respondent, it is necessary to see the iuantum of postponement of annual increment for a period of two years besides treating the suspension period as not on duty as legally valid, proper, justifable and reasonable.
27.Therefore, it is apposite to refer and take judicial notice about issuance of the Circular No.PD-1/2018 dated 13.03.2018 which deals with guidelines to bring uniformity and rationality in awarding punishments. For the misconduct of fare collected, but ticket not issued cases where the ticket amount is above Rs.20/-, if the case is frst time and the Driver maintains clean record for the previous 8 years the proposed punishment is deferment of increment for two years without cumulative efect. For the 2nd ofence punishment is transferred to other depot other than the District
Headiuarters or his notice town. Clean record is defned as no suspension in cash and ticket irregularities. If the record is not clean in the previous 8 years, case shall be treated as 2nd or 3rd such ofence, as the case may be, and punishment proposed for such 2nd and 3rd ofence shall be imposed.
28.Further, this Tribunal can also take judicial notice of the issuance of circular No.PD 20/2018 dt.25-07-2018 which deals with rationalization and standardization of punishment in disciplinary cases. For the cases of fare collected ticket not issued or fare collected but issued lower denomination tickets for the total ticket amount is Rs.20/- and below Rs.100/- for mufusil services, punishment of deferment of increment not exceeding one year with cumulative efect/reduction of pay by one incremental stage for a period of 11 I.D. No.106/2018 Industrial Tribunal-cum-Labour Court, Dt.22-06-2020. Ananthapuramu.
one year without cumulative efect by the charge sheet (suspension not warranted) besides recovery of 10 times of total ticket amount at a time. For the 2nd time and above punishment of deferment of increment not exceeding two years with cumulative efect reduction of pay by two incremental stages for a period of two years without cumulative efect besides by charge sheet (suspension not warranted) besides recovery of 10 times total ticket amount at a time.
29.Furthermore, the Corporation also issued circular No.PD-33/2018 dt.12-09-2018 which also deals with rationalization and standardization of punishment in disciplinary cases. For the case of fare collected, but ticket not issued or lower denomination issued, if the total ticket amount is above
Rs.20/- and below Rs.100/- for mufussil services, punishment proposed is deferment of increment for a period of two years with cumulative efect/reduction of pay by two incremental stages for a period of two years without cumulative efect besides by charge sheet (suspension not warranted) besides recovery of 10 times of total ticket amount at a time.
30.Yet, the Corporation also issued a circular No.PD 01/2019 dt.01- 01-2019. For the case of fare collected ticket issued for lower denomination, if the amount is less than Rs.50/- for mufussil services, deferment of increment for one year with cumulative efect/reduction of pay by one incremental stage with cumulative efect preceded by charge sheet, besides recovery 10 times of total ticket amount (suspension not warranted).
31.Undeniably, all the above circulars were issued subseiuent to the cash and ticket irregularities detected in this case. The present case is of the year 2014. Moreover, the policy of the Corporation was more strict and stringent at the relevant time with respect to the misconduct of cash and ticket irregularities. Hence, there was no rationality to apply all the above circulars while awarding punishment in the case. However, the principles underlined in prescribing the above penalties can be taken into consideration while awarding appropriate and adeiuate punishment in this case.
32.As a matter of fact, an amount of Rs.140/- was involved in the cash and ticket irregularity in this case. The Depot Manager imposed punishment of removal which was modifed by the 3rd respondent in review.
Indeed, the learned Law Ofcer of the Corporation mentioned in his counter and vehemently argued that the Workman’s past record is not good;
Workman was censured on two occasions, annual increments of the workman were deferred on fve occasions and amounts were recovered from 12 I.D. No.106/2018 Industrial Tribunal-cum-Labour Court, Dt.22-06-2020. Ananthapuramu.
the salary of the workman on thirteen occasions, thus the workman is bereft of any clean record.
33.In this context, it is apposite refer the judgment in Union of
India v. Bishamber Das Dogra (2009) 13 SCC 102 wherein the Hon’ble
Supreme Court held at para No.30 as follows:
30. ….But in case of misconduct of grave nature of indiscipline, even in the absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so reiuire.
34.In Central Industrial Security Force and Ors. v. Abrar Ali (2017) 4 SCC 507, it is held that past conduct of a deliniuent employee can be taken into consideration while imposing penalty. Howbeit, in S.Jagan
Reddy (died) per L.R. v. Managing Director, APSRTC and others in
2014-III-LLJ-81(AP), it was held that Past misconduct already proved and punished and the same is not part of the present charges, so the past conduct cannot be taken into account, while determining gravity of punishment to be imposed. Whereas, the learned counsel for the Workman took strong objection to take the past service record/Conduct of the workman for adding the weight to the decision of imposing the punishment.
As seen from the record except baldly mentioning in the counter about the past service record of the workman, no proof is fled to substantiate his past conduct. Therefore, the previous conduct is good or bad is a disputable one.
Previous antecedents of the Workman can not be taken into account while imposing punishment unless those antecedents were put to the Workman by way of another charge or those adverse past conduct is indisputable. In this case the disciplinary authority did not frame such an additional charge of previous bad antecedents.
35.Undeniably, the workman was appointed as Casual Driver in the
Respondents-Corporation on 29-01-1997 and his services were regularized w.e.f., 01-07-2009. From the facts and circumstances of this case, penalty of postponement of annual increment for a period of two years besides treating the suspension period as not on duty, is disproportionate and excessive.
36.It is iuiet relevant to refer the judgment in A.Manickam v.
District Revenue ofcer, Dharmapuri District & another reported in
2009 LAB I.C 63 (Hon’ble Madras High Court) in W.P.No.42772 of 2006 (T) dt.12-06-2008 at para Nos.7 and 8, it is held that two punishments i.e., stoppage of increment for one year with cumulative efect and that period of 13 I.D. No.106/2018 Industrial Tribunal-cum-Labour Court, Dt.22-06-2020. Ananthapuramu.
suspension be treated as punishment imposed for same proven misconduct are separate under discipline rules; that it amounts to double jeoparde and therefore the punishments are illegal; that deliniuent had already undergone penalty of stoppage of increment; and that in said circumstances, impugned order was liable to be set aside to extent of treating period of suspension as substantial punishment.
37.In the instant case also, the 3rd Respondent passed an order of postponement of annual increment for a period of two years besides treating the suspension period as not on duty. Therefore, the orders of the 3rd
Respondent deemed to have imposed two independent punishments, viz., (i) postponement of annual increment for a period of two years and (ii) treating the suspension period as not on duty, for one set of proved misconducts. As held by the Hon’ble High Court of Madras in A.Manickyam case (supra) it is illegal. These two punishments are separate. Imposing two separate punishments for a proved misconduct would amount to double jeopardy.
Ergo, one of these punishments is illegal. Since the Workman had already been undergoing penalty of postponement of annual increment for a period of two years, the penalty of treating the suspension period as not on duty, is liable to be set aside. To that efect only, the impugned order is reiuired to be interfered and modifed.
38.In Ramkumar v. State of Haryana AIR 1987 Supreme Court 2043 in para No.10 it is held that termination of service of bus conductor found to be legal, howbeit, the bus conductor being father of 5 minor children and had no other means of livelihood, the employer was directed to consider re-employment to post of conductor are any other post, to which he may be found to be suitable. Further, in D.K.Yadav v. J.M.A. Industries
Limited in Civil Appeal No.166 (NL) 1983 dt.07.05.1993, the Hon’ble
Supreme Court held that by termination of service livelihood of not only of the employee but also the dependents would be afected. Furthermore, the learned Counsel for the Workman relied on decision in C.G.Swamy v.
APSRTC 2012 (5) ALT 586 wherein at para No.16 it is held that even if the two drivers are provided in long distance buses, allotment of ticket issuing duty to driver in rest is not justifed. It is further held in para-15 to 17 that
APSRTC shall make out their policies and schemes to reduce their expenditure keeping in view of the safety of the passengers and road users.
It is further held in para No.18 that entrustment of duties of Conductor to drivers of passenger bus providing them with ticket issuing machine is violative of provisions of Motor Vehicles Act and the Rules.
14 I.D. No.106/2018 Industrial Tribunal-cum-Labour Court, Dt.22-06-2020. Ananthapuramu.
39.Whereas, in Central Inland Water Transport Corporation v.
Brozon Nath Gangooli (1986) 3 SCC 156 the Hon’ble Supreme Court held that an agreement in between two uneiuals is not proper. The implied agreement in between the Workman as driver and the Corporation to work as Driver cum TIM Conductor is an agreement between two uneiuals. It is induced by undue infuence.
40.It is contended that the Workman is not a iualifed person to hold the post of conductor; that for the post of Conductor the reiuisite iualifcation is 10th class, but it was contended that the workman failed the 7th class and he was not trained in operating TIM. The Hon’ble High Court in
C.G.Swamy case (supra) also held that allotment of ticket issuing machine to duty drivers is not justifed. The Corporation should modify their policy and schemes to reduce the expenditure keeping in view of the safety of the passengers and road users. It was also held that entrustment of duties of conductor to Drivers of passenger bus is violative of provisions of the motor vehicle’s Act and rules thereunder. It is not in doubt that the Workman being a driver of the corporation should not have taken the responsibility of the job of driver with TIM machine. That is the reason why, 3rd respondent reinstated the workman into service.
41.Therefore, from the facts and circumstances of the case, the penalty of postponement of annual increment for a period of two years, is legally valid, justifable, convincing and proportionate to the gravity of the charges. Hence, with regard to imposition of iuantum of part of the penalty only, there is necessity to interfere and scale down. Therefore, the part of the impugned order of the 3rd respondent is only liable to be interfered and modifed. This point is answered partly in favour of the Workman, accordingly.
POINT No.2 :-
42.In the result, the reference made by the Joint Commissioner of
Labour, Kurnool vide proceedings No.D1/502/2018 dated 14-03-2018 is hereby answered holding that the workman was partly justifed in demanding the revocation of punishment order No.PA/675(116)/2015-RM.A, dt.28-12- 2015 issued by the Regional Manager, APSRTC, Anantapur. The penalty of treating the suspension period as not on duty as passed by the 3rd
Respondent, is set aside with a direction to the respondents to treat the period of suspension as on duty. The workman is not entitled for any back 15 I.D. No.106/2018 Industrial Tribunal-cum-Labour Court, Dt.22-06-2020. Ananthapuramu.
wages during the period of suspension as there was no work no pay. The penalty of postponement of annual increment for a period of two years, as passed by the 3rdRespondent is upheld as legally valid, justifable, proportionate and convincing.
Accordingly, the Award is passed answering the reference.
Dictated to the In-charge Steno-Typist directly on the desktop, corrected and passed
by me on this the 22nd day of June, 2020.
Chairman-cum-Presiding Ofcer, Industrial Tribunal-cum-Labour Court,
ANANTAPURAMU.
APPENDIX OF EVIDENCE
WITNESS EXAMINED
FOR Petitioner:FOR Respondent:
-None- -None-
DOCUMENTS MARKED
FOR Petitioner:
1)Ex.W-1Dt.28-12-2015Photo copy of proceedings of the Regional Manager, APSRTC, Anantapur.
FOR RESPONDENT:
1)Ex.M-1Dt.30-10-2014Check sheet.
2)Ex.M-2Dt.30-10-2014Charge Memo.
3)Ex.M-3Dt.30-10-2014Statement of the passenger.
4)Ex.M-4Dt.30-10-2014Statement of the Petitioner.
5)Ex.M-5Dt.-Cover containing top punched tickets
6)Ex.M-6Dt.-Photo copy of punched tickets.
7)Ex.M-7Dt.-STAR Doc.No.133/378249.
8)Ex.M-8Dt.30-10-2014TTIs Special report.
9)Ex.M-9Dt.31-10-2014Depot spare Memo.
10)Ex.M-10Dt.15-11-2014Photo copy of Charge sheet.
11)Ex.M-11Dt.15-11-2014Photo copy of Suspension order.
12)Ex.M-12Dt.-Acknowledgement of the Petitioner.
13)Ex.M-13Dt.23-11-2014Explanation submitted by the Petitioner.
14)Ex.M-14Dt.01-12-2014Allotment of Eniuiry Ofcer.
15)Ex.M-15Dt.17-12-2014Call letter for eniuiry (1& 2).
16 I.D. No.106/2018 Industrial Tribunal-cum-Labour Court, Dt.22-06-2020. Ananthapuramu.
16)Ex.M-16Dt.31-03-2015Domestic eniuiry report.
17)Ex.M-17Dt.07-04-2015Objections called about eniuiry.
18)Ex.M-18Dt.15-04-2015Objections submitted by the Petitioner.
19)Ex.M-19Dt.27-04-2015Photo copy of Show cause notice of removal from service.
20)Ex.M-20Dt.04-05-2015Explanation submitted by the Petitioner.
21)Ex.M-21Dt.14-05-2015Proceedings of the Disciplinary Authority.
22)Ex.M-22Dt.-Acknowledgment of the Petitioner.
23)Ex.M-23Dt.20-07-2015Proceedings of the Appellate Authority.
24)Ex.M-24Dt.28-12-2015Photo copy of Proceedings of the Review Authority.
Chairman-cum-Presiding Ofcer, Industrial Tribunal-cum-Labour Court,
ANANTAPURAMU.
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