1. These two writ petitions, one by the Management viz., W.P. No. 3371/79 (for short, the respondent) and another viz., W.P. No. 4105/80 filed by the employee (for short 'the petitioner') have been filed to quash the Award in I.D. No. 118/76 passed by the Labour Court, Hyderabad.
2. The facts, not in dispute, are that the petitioner was working as a Conductor in the Andhra Pradesh State Road Transport Corporation in its Depot at Kukatpalli. On 16th October, 1975 while the petitioner was conducting the bus APZ. 685, the Checking Inspector, at Stage No. 8 i.e., Punjagutta Police Station, made a surprise check and called upon the petitioner to produce Statistical Return and ticket tray. the petitioner refused to surrender them and thereby prevented the employer or other public servant in discharge of his official duties, constituting serious misconduct as per Regulation 9(1), Note 2(xiii) of the Andhra Pradesh State Road Transport Corporation Employees (Classification, Control and Appeal) Regulations, 1967 (for short, CCA, Regulations). Pursuant to a domestic enquiry, the petitioner was dismissed from service. Dissatisfied with the enquiry, a dispute has been raised and the Government have referred the dispute under S. 10(1)(d) of the Industrial Disputes Act (for short 'the Act'). After adducing of evidence on either side, the Labour Court recorded 3 finding that the petitioner had interfered with the discharge of lawful duties by the T.T.I., and prevented him from doing his legitimate duties by refusing to hand over the S.R., and tickets-tray at the time of check. Thus, it held that the petitioner had committed misconduct. But, however, in view of the fact and circumstances, the Labour Court held that the punishment of removal was shockingly disproportionate to the charges leveled against the petitioner. Therefore, in exercise of the power conferred under S. 11-A of the Act, it held that the petitioner is not entitled to back-wages, but ordered reappointment of the petitioner.
3. The respondent filed the writ petition contending that the direction regarding reinstatement is not one of the modes of punishment provided under Regulation 9 of C.C.A. Regulations and that the Labour Court has exceeded the power in awarding that punishment. The petitioner filed the writ petition contending that the finding of misconduct recovered by the Labour Court is vitiated by error of law.
4. Sri Anand Rao, learned Senior Standing Counsel for the respondent contends that in view of the gravity of the misconduct committee by the petitioner, the view of the Labour Court is clearly in excess of the jurisdiction vested under S. 11-A of the Act. The petitioner has wilfully prevented the T.T.I., to have a surprise check of the irregularities that are being committed by him and it is a serious misconduct on his part as per the Regulation 9(1), Note 2(xiii) and therefore the view of the Labour Court does warrant interference by this Court.
5. Sri. G. Ramachandra Rao, learned counsel for the petitioner, on the other hand, while refuting the contention of the respondent, contends that the Labour Court committed error of law in giving a finding of misconduct. In justification thereof, he put forth the following circumstances : (1) The Labour Court ought not to rely upon the documentary evidence relating to the domestic enquiry. It has to rely only on the basis of the evidence added afresh before the Tribunal. It is open to the employer to rely upon the evidence collected at the domestic enquiry and support the punishment of dismissal awarded at the enquiry. If it does not want to rely upon the evidence adduced at the domestic enquiry, it is opened to the employer to adduce evidence afresh before the Labour court. But it is not open to rely upon the evidence which was found to be defective at the domestic enquiry and the Labour Court has committed error of law in the regard. He, further contended that a witness has stated (in Ex. M-6), that the petitioner did not commit any misconduct and that evidence was not considered by the Labour Court which is favourable to the petitioner and non-consideration thereof vitiates the finding recorded by the Tribunal. Even otherwise, he contends that having found that the punishment of dismissal is shockingly disproportionate and that the continuance of the petitioner in service would meet the ends of justice, the Labour Court committed error of law in directing to make a fresh appointment, denying the continuity of service. It ought to have directed reinstatement with back wages which would have ensured the benefit of previous service.
6. Sri Ananda Rao, learned Senior Standing Counsel, while reiterating his contention, stated that it is open to the Court to consider the totality of the facts and circumstances and mould the relief according to the situation. The Tribunal found that re-appointment would meet the ends of justice and it does not warrant interference by this Court.
7. Upon the respective contentions, the first question that arises for consideration is whether the finding of misconduct recorded by the Labour Court is vitiated by error of law.
8. Under Proviso to S. 11-A of the Act, the Labour Court is empowered to rely on the material on record and shall not taken any fresh evidence in relation to the matter. This provision was the subject of consideration in catena of decisions of their Lordships of the Supreme Court. It is needless to refer to all the decisions, but suffice it to state a decision reported in Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. Firestone Tyre & Rubber Co. of India (P) Ltd., [1973-I L.L.J. 278], in which Vaidialingam, J., speaking on behalf of the Court has considered the scope of the world 'material on record' in the proviso and held thus : at para 46 on p. 298.
1) The evidence taken by the management at the enquiry and the proceedings of the enquiry, or
2) the above evidence and in addition, any further evidence led before the Tribunal, or
3) evidence place before the Tribunal for the first time in support of the action taken by an employer as well as the evidence adduced by the workmen contra.
The above items by and large should be considered to be the 'materials on record' as specified in the proviso. We are not inclined to limit that expression as meaning only that material that has been placed in a domestic enquiry. The proviso only confines the Tribunal to the materials on record before it as specified above, then considering the justification or otherwise of the order of discharge or dismissal. It is only on the basis of these materials that the Tribunal is obliged to consider whether the misconduct is proved and the further question whether the proved misconduct justified the punishment of dismissal or discharge. It also prohibits the Tribunal from taking any fresh evidence either for satisfying itself regarding the misconduct or for altering the punishment.'
In view of the above law, it is now clear that it is open to the Tribunal to rely upon the evidence adduced before the Tribunal viz., the evidence collected during the domestic enquiry and made part of the record and the evidence adduced afresh before the Tribunal. The question is whether the documents marked on behalf of the employer as well as employee during the domestic enquiry could be considered by the Labour Court. In view of the law thus laid down it is clear that the evidence collected during the domestic enquiry was made part of the record and therefore the Labour Court is entitled to look into the record and consider whether the order of dismissal made by the respondent is justified on the facts and circumstances of the case. No doubt, Sri Ramachandra Rao, learned counsel for the petitioner has relied upon a decision of the Division Bench of this Court in W.P. No. 3691 of 1978 dated 30th March, 1979 in support of has contention that the documents cannot be looked into. Alladi Kuppuswami, J., (as he then was) while considering the contention raised therein has held that the Labour court cannot look into the evidence collected at the domestic enquiry, But, on a perusal of the facts in that case it appears that the record relating to the domestic enquiry was not made part of the record, but yet the counsel for the employer contended that it could be looked into and in that regard he relied upon a decision of the Supreme court in Ritz Theatre (PR) Ltd. v. Its Workmen, [1962-II L.L.J. 498]. While considering that contention, the Division Bench has held that :
'.... in such circumstances the Labour Court has to consider only the evidence adduced before it. It passes our comprehension how the Labour Court can consider the evidence in the domestic enquiry once it has come to the conclusion that the enquiry is vitiated.'
Further, at the concluding portion, the Division bench stated that :
'It is therefore clear from these decisions that when the domestic enquiry enquiry is found to be defective and the employer adduced evidence to justify his action of dismissal and the employee is also give the opportunity to rebut that evidence, the Tribunal has to consider only the evidence adduced before it.'
The ratio of the above Division Bench decision would also go to show that the evidence adduced before the Tribunal has to be considered. As stated earlier, the evidence relating to the domestic enquiry was made part of the record and therefore it could be considered by the Labour Court.
9. Another contention raised by Sri Ramachandra Rao, learned counsel for the petitioner is that Ex. M6, a statement given by one of the passengers was not considered by the Tribunal. It is no doubt true that when the Labour Court is considering the evidence on record, it has to consider the entire material with reference to the evidence and arrive at a finding thereafter. If one of the material piece of evidence was not consider then this Court has to see what is the impact of non-consideration thereof. if it materially affects the ultimate decision taken by the Tribunal, then this Court can interfere with the award. But on the facts and circumstances of this case, I am of the opinion that though the Labour Court did not expressly state that it considered Ex. M6, but the failure thereof does not really vitiate the ultimate conclusion reached by the Labour Court. A reading of the Award clearly shows that the Labour Court has carefully considered the entire material and arrived at the conclusion that the petitioner has committed misconduct. It could mean that it considered Ex M6 as well and then arrived at the conclusion.
10. The next question is whether the Labour Court is justified in interfering with the punishment inflicted upon the petitioner, S. 11-A of the gives wide power to the Labour Court in the matter of imposition of punishment. In a recent judgment of the Supreme Court in Rama Kant Misra v. State of U.P. and others, [1982-II L.L.J. 472], their Lordships have considered the scope and power of the Labour Court under S. 11-A and held that 'with the insertion of S. 11-A, it is now crystal clear that the Labour Court has the jurisdiction and power to substitute measure of punishment in place of the managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case.' Though Sri Ananda Rao has contended that the punishment by was of reinstatement is not one of the modes of punishment contemplated under Regulation 9 of the C.C.A. Regulations, I am unable to agree with the learned counsel. A Division Bench decision of this Court in the District Manager, A.P.S.R.T.C. Jaggaiahpet v. Labour Court, Guntur and another, (1978) 1 A.P.L.J. 182, held that though the regulations do not provide for the withholding of back-wages as one of the penalties which can be awarded by the management to the employee, it is open to the Labour Court to impose such a penalty in appropriate cases. The Award of an Industrial Tribunal directing reinstatement of an employee without back-wages and without any other kind of punishment specified in the Regulations of the management is not bad merely because the employee was found guilty of misconduct, if in the opinion of the Tribunal the misconduct is not so grave as to warrant the award of the extreme penalty of discharge or dismissal. The term 'lesser punishment' in the Section cannot be restricted by reading words which are not contained in the Section. The section does not state that the lesser punishment should be one which is provided in the Regulations or Standing Orders of the management. The provision takes in its sweep all punishments lesser than discharge or dismissal, whether provided for in the Regulations or Standing Orders of the managements or not. Accordingly, the Tribunal was justified in withholding the back-wages as one of the punishments under the Regulations. Therefore, the order of the Tribunal is not vitiated on that ground. But, however, the contention of Sri Ramachandra Rao, the learned counsel for the petitioner is that having found that the punishment awarded is shockingly disproportionate and found that the misconduct committed is not so serious the ends of justice would have been met by directing reinstatement without back-wages instead of directing fresh appointment. He contends that the power of this Court is wide enough to extend the benefit in view of the facts and circumstances to mitigate the hardship of loss of service of about 18 years, in favour of the petitioner. In support of that contention, he relied on a decision of the Supreme Court reported in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha, [1980-I L.L.J. 137] : wherein Krishna lyer, J., speaking on behalf of the Court held : at para 144 on pp. 172-173.
'Art. 226, however, restrictive in practice, is a power wide enough, in all conscience, to be a friend in need when the summons comes in a crisis from a victim of injustice, and more importantly, this extraordinary reserve power is unsheathed to grant final relief without necessary recourse to a remand. What the Tribunal may, in its discretion do, the High Court too can, under Art. 226, in fact compel it to do so.'
In this case, the misconduct alleged against the petitioner is that he prevented the authorities from discharging their duties by non-handing over of the ticket tray, etc. The Labour Court found that the punishment of dismissal was shockingly disproportionate. It also directed the respondent to appoint the petitioner afresh. It withheld the backwages as a measure of punishment. I am also informed that pursuant to the Award, the petitioner was already appointed and has been in service. In view of the facts and circumstances, I am inclined to follow the ratio laid down by the Supreme Court, that power could be exercise in favour of the petitioner, directing the respondent to treat the petitioner as being reinstated pursuance of the Award of the Labour Court and confer the benefit of past service so that the other service benefits accrued to the petitioner due to his past service could be availed of. Only to this extent the order of the Tribunal is modified and both the writ petitions are dismissed, but in the circumstances, without costs.
11. Order Accordingly.