High Court · 2011

Order

Petitioner herein the Andhra Pradesh State Road Transport Corporation (APSRTC) represented by its Depot Manager, Pulivendula. It filed this writ petition under Article 226 of the Constitution seeking a writ of certiorari or any other appropriate writ, order or direction for quashing the award dated

30.08.2001 passed I.D.No.107/1998 on the file of the Industrial Tribunal-cum-Labour Court, Anantapur, for setting aside the same and for restoring the punishment of removal from service awarded to the second respondent herein in the departmental enquiry.

2. At the relevant time, the second respondent J.V.S.Rayudu was working as a Driver in the petitioner-depot. A disciplinary enquiry was commenced against him on the following four charges. “1. For having allowed 120 liquor bottles on the top and inside of the bus AP9Z 7021 on 12.04.95 at Bangalore bus station on the route Bangalore to Pulivendula which is misconduct under Regulation 28 (xxxii) of APSRTC Employees (Conduct) Reg.

2. For having failed to check the vehicle AP9Z 7021 on

12.4.95 while starting at Bangalore Bus Station about transportation of prohibited articles if any in the bus since the route pertaining to interstate which is misconduct under Reg.28 (xxxii) of APSRTC Employees (Conduct) Reg. 1963.

3. For having responsible for the seizer of the vehicle AP9Z 7021 at about 01.15 hours on 13.04.95 at Kodikonda check post prohibition officials due to illicit transportation of 120 bottles of liquor which is misconduct under Reg.28 (ix) (a) of APSRTC Employees (Conduct) Reg. 1963.

4. For having supplied the image of the corporation by seizer of the vehicle AP9Z 7021 because of transportation of 120 bottles of liquor on 13.04.95 as well as of loss earnings for 7 days since the vehicle was released on 19.04.95 besides inconvenience caused travelling public which constitutes misconduct under Reg.28 (xxxii) of APSRTC Employees (Conduct) Reg. 1963.”

3. After considering the matter the disciplinary authority concluded that the four charges were serious in nature and awarded a penalty of removal from service to the second

respondent by its order dated 10.05.1996. That was confirmed by the appellate and review authorities by their respective orders dated 30.01.1997 and 20.03.1998. Thereafter the second respondent raised the present industrial dispute before the Labour Court and the said court ultimately passed the impugned Award setting aside the punishment of removal from service and directed that the second respondent should be given a fresh appointment order to the post of Cleaner.

4. Reiterating the plea of the petitioner, its learned Standing Counsel, Smt W.V.S.Rajeswari, argued that the Labour Court also found that the charges were proved and in spite of the same instead of confirming the penalty of removal from service it exceeded its jurisdiction and directed reinstatement of the second respondent in another post which it ought not to have done as it was beyond the scope of its jurisdiction. Even otherwise, she pointed out, having regard to the charges which are serious in nature the punishment of removal ought to have been confirmed. On the other hand, Sri S.A.K.Mynuddin, the learned counsel for the second respondent, argued that the petitioner being the Driver of the bus is not expected to check the luggage or other articles loaded in the bus and it was the duty of the Conductor and the disciplinary authorities and as well as the Labour Court failed to notice this aspect. He further argued that in the circumstances the Labour Court’s order directing the petitioner to give a fresh appointment to the second respondent as Cleaner need not be disturbed. He also argued that under Section 11-A of the Industrial Disputes Act, 1947, it was within the jurisdiction of the Labour Court to order fresh appointment to the second respondent as a Cleaner.

5. The first question relating to the merits of the matter is now taken up. It may be noted that the impugned Award which contains all the details dealt with the merits of the matter as point No.1. It discussed the details of the charges and the evidence on record and concluded that the second respondent as Driver kept the vehicle in his custody at which time the liquor bottles were loaded in it and found that the APSRTC is able to establish charges 1 and 2 relating to loading of liquor bottles against the second respondent. Then turning to charges 3 and 4 which are connected to charges 1 and 2 it found that they have also been proved.

6. The plea that the Driver of a bus cannot be held responsible for the luggage loaded was considered by the Labour Court and after considering the evidence it rejected the said plea and concluded that the second respondent was responsible and found that the APSRTC was able to establish his responsibility. The second respondent did not challenge the said findings of the Labour Court. It therefore follows that the said findings cannot be disturbed.

7. Then turning to the question of punishment or penalty, the Labour Court did not give any convincing reason to sustain the lenient view taken by it and the lesser penalty awarded by it. It only stated that the second respondent has put in ten years of service and if he is removed from service in the middle i.e. in the midst of his service that would cause untold hardship to second respondent and also his dependants. True, the removal of a person from his job would no doubt cause hardship to his dependants but if sympathy is shown on that ground it has to be shown in each and every case irrespective of the nature of the charges and, simply stated, that is not permissible in law.

8. In the present case, the second respondent was found responsible for holding 120 liquor bottles on the top of the bus on the route Bangalore to Pulivendula and this was on 12.04.1995 when there was total prohibition in our State. As the driver of a Government corporation bus the second respondent ought to have worked to help the authorities to implement prohibition and instead of doing that he himself has violated not only the service rules of the staff of APSRTC but also he must be held to have violated the provisions of the law existing then imposing total prohibition. Such a misconduct has to be held to be a serious misconduct and in my opinion the punishment of removal from service would only be the proper penalty. Thus the sympathy shown by the Labour Court can be said to be a misplaced sympathy. In this connection Sri S.A.K. Mynuddin pointed out that since prohibition is now lifted in our State, the lenient view taken by the Labour Court can be sustained. There is no force in this contention also. It may be noted that 120 liquor bottles cannot be permitted to be transported by an APSRTC bus even if there is no prohibition and there are rules governing transport of liquor from one State to another.

9. Sri S.A.K.Mynuddin then pointed out that Conductor was let off and therefore this second respondent should also be given similar treatment. Smt W.V.S.Rajeswari countered this argument saying that action was taken against the Conductor also. The fact that Conductor was let off is no ground to take a lenient view against the second respondent as the Labour Court found that the second respondent was responsible for the illegal transportation of the liquor bottles in question, the quantity of which has already been mentioned supra.

10. Thus the Labour Court by showing a misplaced sympathy interfered with the order of penalty of removal from service awarded to the second respondent. Now coming to the aspect whether Labour Court has jurisdiction to direct the APSRTC to give a fresh appointment to the second respondent as Cleaner, in view of the charges, it follows that the said relief is also given by the Labour Court on a misplaced sympathy even assuming for a moment it has such jurisdiction. Hence the entire Award of the Labour Court is set aside and the order of removal of the second respondent from service is confirmed. It is seen that this writ petition was admitted on 31.01.2002 and notice was ordered in interim suspension petition WPMP No.1990 of 2002 and interim suspension of the impugned Award was granted on 27.06.2002.

11. This Writ Petition is accordingly allowed and the order of interim suspension granted earlier is made absolute. No costs. ______________________ N.RAVI SHANKAR, J 12th August, 2011 CVRK