1. Briefly stated, the writ petitioner's case before the learned single Judge was that he was illegally removed from service by Andhra Pradesh State Road Transport Corporation by an order dated 29-12-1989 after he had put in almost three years of service by that time as conductor. His appeal against the said order before the Appellate Authority was rejected on 24-3-1990.
2. The petitioner - appellant was facing three charges that he had collected Rs. 1.25 ps. from a batch of eight passengers, who were found alighting from the bus without tickets at Muthyampet, and that he had already closed the ticket tray of all denominations against stage No.8. Departmental Enquiry was conducted against him for the aforesaid charges. The Enquiry Officer submitted his report holding the petitioner - appellant guilty of the charges levelled against him. But according to the petitioner, the findings recorded by the Enquiry Officer were perverse, one sided and were based on mere surmises and conjectures. He (Enquiry Officer) did not assign any valid reason why the petitioners evidence and the evidence of his witnesses which had remained unchallenged by the 2nd respondent - Corporation did not appeal to him in preference to oral testimony of the interested witnesses like checking officials and, therefore, according to the petitioner, the findings of the Enquiry Officer were not sustainable in law.
3. On the basis of the report submitted by the Enquiry Officer, a show cause notice was issued to the petitioner proposing to inflict the punishment of removal from service. The petitioner submitted his explanation to the same, but according to the petitioner, as apprehended by him, the 2nd respondent mechanically passed the final order of his removal from service. The petitioner raised a dispute before the Presiding Officer of the Labour Court, Godavarikhani under Section 2-A(2) of the Industrial Disputes Act, 1947. He submitted a memo before him stating that the matter may be decided under Section 11-A of the Industrial Disputes Act. However, according to the petitioner, it was the bounden duty of the 1st respondent to decide the validity of the domestic enquiry as a preliminary issue, in accordance with the orders passed by this High Court in WA No.324/1990 dated 16-3-1990 and, therefore, according to the petitioner, the award of the 1st respondent was vitiated by material irregularities and that the same was contrary to the law laid down by this High Court.
4. The learned single Judge elaborately considered the legal and factual aspects concerning the subject-matter of the case and observed in his impugned order as under :
"In the context of employment of a conductor in the Corporation and the duties and functions attached to the post of conductor, the quantum of embezzlement or misappropriation cannot be a relevant consideration. There is absolutely no scope for any conductor to misappropriate the revenues of the Corporation in hundreds or thousands at a time. 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, I can take judicial notice of the fact that in hundreds of cases decided by this Court involving misappropriation of the revenues of the corporation by its conductors, the money involved was always only few rupees and in most of the cases it was less than Rs.10/-. Therefore, the quantum of amount misappropriated at a particular stage cannot be a safe and reasonable yardstick to determine the quantum of punishment. What is material and relevant is whether the complained act of the conductor reflects a propensity to be corrupt and dishonest. If the conductor's conduct reflects such objectionable trait, then, it can reasonably be expected that he would translate this propensity to be corrupt into an act whenever and wherever he gets an opportunity to do so and thereby causing heavy losses to the Corporation. It is not that a watch-dog or a checking official accompanies every conductor at all times and all places during his services. A check in respect of a conductor may be exercised once in a month or few months. It is not that the Corporation conducts checks every day in respect of each and every conductor employed by it. If the Industrial Tribunal or this Court is satisfied about the propensity of the delinquent to be corrupt, it cannot grant relief to him solely on the ground that the misappropriated amount of money is only few rupees, and if they direct reinstatement of such delinquent, it will be totally against public interest and it will have a demoralising effect on the administration of the Corporation. It will also aid generation of black money. The Courts, whether it is Industrial Court or this Court, cannot be abettors."
5. The learned single Judge has also taken into consideration the applicability of Section 11-A of the Industrial Disputes Act and observed that the discretionary orders passed by the Labour Courts and the Industrial Tribunals should not be interfered with lightly by the High Courts, though what the Industrial Tribunals and the Labour Courts may, in their discretion do under Section 11-A of the Industrial Disputes Act, the High Courts too, under Article 226, can, if facts compel, do as held by the Supreme Court in Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha. The learned single Judge further observed that "since writ Court is not an appellate Court where the correctness of the order or award under review is to be canvassed, it has no jurisdiction to substitute its own opinion for the opinion of the inferior Tribunal even if it is satisfied that the decision is wrong. In other words, the writ Court will not probe into the merits of the exercise of discretion of an authority unless the exercise of discretion is perverse."
6. In such cases, indeed it is not the quantum of money which could constitute the gravamen of the charge of misappropriation against the bus conductor. The quantum in such cases is bound to be insignificant. What is relevant is the frame of mind of the conductor leading to a wrongful loss to the Corporation and wrongful gain for himself which itself is sufficient to record a finding of guilt against the bus conductor in a State owned Transport Corporation. From the Corporation's view, the defalcation would run into several thousand rupees if the misconduct is committed by several hundreds of conductors everyday. If an individual conductor is let free on the ground that the quantum of money was small, and if such lenient view is taken in case of all conductors indulging into such malpractices, it will tend to destroy the economical back bone of the Corporation. It is this factor which is required to be borne in mind when the Court is confronted with such situation. The insignificance of the amount, can in such cases by no means be taken as the yard stick for measuring the gravity of the misconduct. Day in and Day out, the Court is confronted with such cases of defaults committed by bus conductors, which in individual cases may be small, but would suddenly expand into a formidable sum if such misconduct of other conductors indulging into the same misconduct is taken into consideration. We, therefore, propose to lay down guidelines so as to serve as uniform pattern to be followed in all such cases :
(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) The bus having been crowded much exceeding its capacity can also not be treated as rendering any justification in cases where the conductor has already collected the bus fare and has not issued the ticket;
(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) Closing the SR without issuing ticket to a passenger from whom the bus fare has already been collected is a deliberate act of misconduct on part of the bus conductor, leaving no scope for any presumption other than the presumption that the delinquent had a dishonest intention of causing wrongful loss to the Corporation and wrongful gain for himself. Such misconduct should be viewed strictly and no interference need be made by the Court of law if the quantum of punishment imposed is in accordance with the disciplinary Rules of the Corporation for that purpose. It is a clear manifestation of the dishonest intention of the delinquent and no leniency could be shown to the culprit; and
(6) The defence, if taken by the delinquent that he was about to issue the ticket when the inspecting party raided the bus could also not be treated as a remitting factor unless the margin of time when the bus fare was collected on one hand and the time when the raiding party raided the bus on the other was very narrow.
7. We, therefore, do not find any cause to interfere with the impugned judgment of the learned single Judge, except that the language used in the concluding part of the impugned judgment, indicating the workman is quite harsh and the same could have been conveniently avoided. We particularly refer to the following stricture against the class of workmen :
"Leniency cannot be deduced from this statutory leaning to foster the traits of the deprave and debased elements in the community of workmen. Cleansing of the weedery of the Corporation by uprooting the unscrupulous and corrupt elements
8. Subject to the above observations, the impugned order of the learned single Judge needs no interference. Hence, the appeal No.425 of 1997 is dismissed. No costs.
9. The facts in WA No.27 of 1997 being similar as in WA No.425 of 1997, the same also deserves to be dismissed and it is hereby dismissed. No costs. We are one with the opinion expressed by the learned single Judge that the discretionary powers conferred upon the statutory authorities under Section 11-A of the Industrial Disputes Act should ordinarily be not interfered with. However, a rider need be added that such discretion cannot be upheld if it is tainted with any unjust element or the exercise of such discretion openly and plainly is a hostile discretion. No clean chit could be given under the concept of discretionary exercise of power merely because a provision is made to that effect in a statute. The discretion, in our opinion, has to be a judicious exercise of discretionary power without having been tainted with any mala fide intention.