ORDER
P. Venkatarama Reddi, J
1. The appellant who was conductor in APSRTC was removed from service by an order passed by the Depot Manager on 31-10-1995. The order of removal was confirmed in appeal. The appellant then raised an industrial dispute. Before the Industrial Tribunal on a reappreciation of evidence, the validity of domestic enquiry was not questioned. The Tribunal came to the conclusion that the charges against the employee – that he collected Rs.3.50 from a passenger, issued a holiday ticket of Rs.10-00 denominations and took back that ticket before the passenger alighted, that he failed to observe the rule of issuing tickets within one fare stage, were held to
be proved on the basis of evidence on record. The Tribunal held that in a case of this nature involving misappropriation of Corporation funds with a criminal intention, the punishment of removal cannot be considered to be excessive or unreasonable, the mere fact that the amount detected to have been misappropriated during the particular check is only Rs.3.50, is not a material factor and that it is not desirable to continue a person who has lost is moral fibre as conductor. The- learned single Judge found no illegality or perversity in the finding nor any conclusion recorded by the Tribunal under Section 11-A of the Industrial Disputes Act that the punishment was excessive or disproportionate. The writ petition was therefore dismissed at the admission stage. Hence, the present writ appeal.
2. The only point urged by the learned Counsel for the appellant is regarding the quantum of punishment. It is contended that for the misappropriation of trivial amount of Rs.3.50, the extreme punishment of removal ought not to have been awarded. We cannot accept the contention of the learned Counsel for the appellant. It is a case in which the Tribunal in exercise of its powers under Section 11 -A, did not consider it to be a fit case to reduce the punishment. The Tribunal has given relevant reasons. The view taken by the Tribunal that the punishment was not excessive or disproportionate, cannot be said to be perverse, even assuming that the Tribunal could have exercised the discretion more liberally. The penalty imposed on the employee and upheld by the Tribunal cannot be said to be so grossly disproportionate to the gravity of charge proved so as to shock the conscience of the Court. The award of the Tribunal cannot be said to be vitiated by any jurisdictional error on an apparent error of law. It is not possible for this Court to substitute its own opinion on the question of punishment so long as the punishment
imposed is not so wholly unreasonable as to shock the conscience of the Court. The learned single Judge was therefore justified in not entertaining the writ petition under Article 226 for the purpose of re-examining the aspect of punishment.
3. In P. Maheswara Rao v. P.O., Labour Court, Godavari Khani, , one of us (S.K Nayak, J.,) repelled the argument that in a case where the amount misappropriated by the conductor is not much (in that case Rs.10/- or so), penalty of removal from service is unjustified. It was observed that the quantum of amount misappropriated at a particular stage cannot be a safe and reasonable yardstick to determine the quantum of punishment and what is material and relevant is that the complained act of the conductor reflects the propensity to be corrupt and dishonest. It was pointed out that “when a check is exercised on a particular day and at a particular stage, the checking officials may only detect the ticket and cash irregularities committed by the conductor within the few stages preceding the stage at which the check is exercised. Such detection may reveal misappropriation of few rupees only”. The observations in the decision of the Supreme Court in Municipal Committee. Bahadurgarh v. Krishnan Behari and others, and the decision of Division Bench of this Court in Depot Manager, APSRTC, Kamareddy v. Kagaiah, WA No.773 of 1989, dated 15-1-1990 were relied on. The following observations of Supreme Court in , were cited and relied upon :
“It is obvious that the respondent has been convicted of a serious crime and it is a clear case attracting under proviso (a) to Article 311(2) of the Constitution. In a case of such nature – indeed, in cases involving corruption – there cannot be any other punishment than dismissal.
Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriate that is relevant. The Director had interfered with the punishment under a total misappropriation of the relevant factors to be borne in mind in such a case.”
4. The above judgment of the learned single Judge was affirmed in WA Nos.425 and 27 of 1997 (P. Maheshwar Rao v. Presiding Officer, Labour Court, Karimnagar, ), by the Division Bench consisting of P.S. Mishra, CJ and D.H. Nasir, J. The Bench laid down certain guidelines. The following guidelines are relevant for the purpose of this case.
“(1) In a case where the bus fare is collected from a passenger by the bus conductor without issuing the ticket instantly, the magnitude of the amount involved shall not be treated as rendering any yardstick for determining the gravity of the misconduct. Such misconduct is a misconduct per se which is serious eventually leading to the cracking of the economic backbone of the Transport Corporation.
(2) No lenient view need be taken in such cases. The punishment as may be provided in the Rules and Regulations of the Transport Corporation should be strictly construed without being influenced by the principles of punishment to be commensurate with the gravity of the misconduct.
(3) …..
(4) Once fare is collected, the conductor is bound to issue the ticket. It is a different situation, altogether if the conductor is unable to collect the fare and unable to issue the ticket to a passenger in view of heavy crowd in
the bus. In fact, the nature of such misconduct is different from the misconduct of collecting the fare and not issuing the ticket. The rule of’ issue and start’ will apply in such cases and the charge, if levelled has to be viewed from that angle.”
5. In a recent case WA No.2009 of 1999, a Division Bench consisting of M.S. Liberhan, CJ and Raghuram, J., set aside the order of the learned single Judge who set aside the order of removal and directed reinstatement of the conductor afresh in a case involving misappropriation of fare collected from twenty passengers. No doubt, the extent of misappropriation was of greater magnitude in that case. But the said decision gives an indicia that this Court is not free to modify the punishment according to its discretion when there is no error in the application of law or when there is no serious error in the matter of exercise of discretion under Section 11-A.
6. The decision of the Division Bench of this Court in V.G. Reddy v. Chairman, Industrial Tribunal, Warangal, WA No.213 of 1992, has been brought to our notice. That was also a case of misappropriation of ticket fare by the conductor. The learned Judges felt that the punishment of removal was not justified in the facts and circumstances of the case and that it was too harsh and disproportionate. Thus observing, the Division Bench interfered with the award of the Labour Court which was confirmed by the learned single Judge. On a perusal of the order in this writ appeal, we do not get full facts of the case. Probably, it was a case in which there was non-application of mind by the Labour Court to the question of punishment as is evident from the discussion. The learned Judges of the Division Bench commented that the Labour Court did not refer to, muchless considered the matter from the
stand point of Section 11-A. We cannot rely on this decision to cull out a principle of general application that in a case of misappropriation of ticket fare by the conductor, the punishment of removal should not be imposed. The unreported decision in WA No.773 of 1989 was not brought to the notice of the learned Judges. We therefore prefer to follow the recent decision of the Division Bench referred to supra which has also laid down the guidelines as it is in accord with the view taken by the Supreme Court in regard to proportionality of punishment.
7. The learned Counsel has drawn our attention to another decision of a Division Bench of this Court in Y.R. Shetti v. Depot Manager, APSRTC. That was a case in which the employee-conductor having collected the fare of Rs.40/- from a batch of seven passengers issued lower denomination tickets and pocketed the difference. The learned Judges modified the punishment of removal which was upheld by the Labour Court and the learned single Judge by ordering reinstatement without back wages. The learned Judges granted that relief rather reluctantly in order to fall in line with the unreported judgment in V.G. Reddy’s case (supra). The learned Judges made it clear that in order to avoid divergence of opinion, such a view was taken. The Division Bench recorded its finding in the following words :
“We have apparently no reason particularly, when we are informed about the past conduct of the appellant, to find fault with either the judgment of the Labour Court or that of the learned single Judge.”
Thus the Division Bench was not inclined to interfere in the matter, but thought it fit to grant relief on the basis of the decision in V.G. Reddy’s case. We have already explained the possible ratio of the decision and expressed the view that no general
principle of precedential value has been laid down therein. We feel bound by the later decision of the Division Bench in which the issue was discussed in detail and guidelines were formulated. The holding in that decision is in consonance with the dicta of (lie Supreme Court referred to by the learned single Judge in Maheswara Rao ‘s case.
8. In a recent case of UPSRTC v. Subhash Chandra Sharma, , the Supreme Court found fault with the High Court in not exercising its jurisdiction under Article 226 to correct the erroneous order of the Labour Court by which reinstatement with 50% backwages was ordered in lieu of punishment of removal imposed by the management on the charge of abusing and threatening the Assistant Cashier in a drunken state.
9. The learned Counsel for the appellant has relied upon a decision of this Court in Depot Manager, APSRTC v. Durgaiah, 1997 (4) ALD 220, to which one of us (P. Venkatarama Reddi, J.,) was a party. That was also a case of misappropriation of fare of Rs.120/- by the bus conductor. The Division Bench expressed the view that in a case of that nature, the penalty of removal was not unjustified. It was observed :
“The next question is whether the Industrial Tribunal was justified in interfering with the penalty of removal and directing reinstatement with continuity of service. Having regard to the gravity of charges involving collection of Rs.120/- from a batch of 16 passengers and not issuing the tickets to them. It is difficult to say that removal from service is a harsh punishment or disproportionate to the gravity of the charge. We have seriously considered whether to interfere with the order of removal, especially in view of the fact that no good reasons are given by the Tribunal for modifying the punishment.”
10. On the peculiar circumstances of the case, viz., that the employee was reinstated seven years back and there was no evidence of subsequent misconduct, the Bench upheld the punishment to the extent of reinstatement afresh and deleted the other reliefs granted. The following significant observation was made therein : “Reluctantly, therefore we uphold the award of the Tribunal insofar as it directs reinstatement”. Thus, the above decision cannot be cited as a precedent in support of the argument that the punishment of removal would be excessive or unreasonable even if the charge of misappropriation of ticket fare is proved.
11. There is one more decision on which the learned Counsel for the appellant has placed reliance i.e., the decision in Depot Manager, APSRTC v. Additional Industrial Tribunal, Hyderabad, 1997 (1) ALD 563, that was a case in which the conductor issued unpunched tickets to the passengers. Though the learned Judges found that the conduct of the conductor in issuing the ticket without punching was not beyond suspicion, upheld the order of reinstatement while denying backwages. The nature of charge in that case was different and therefore, we do not enter into the discussion on the correctness or otherwise of the ultimate conclusion reached by the learned Judges on the question of punishment.
12. In the view we have taken and the decisions of the Division Benches which we have cited, it is not necessary for us to advert to the decisions of the learned single Judges who in a large measure were influenced by the decision in K.G. Reddy’s case referred to and explained supra.
13. In the result, the writ appeal is dismissed. The dismissal of the writ appeal shall not stand in the way of the appellant from filing a mercy petition or representation of like nature to the competent authority. No costs.