K.B. Narsaiah vs Industrial Tribunal-cum-labour Court, Warangal and Another

Lingraj Rath, J.—The writ petitioner is the appellant. He was a conductor of the second respondent, A.P.S.R.T.C. and through departmental proceedings was removed from services. The removal was assailed before the Industrial Tribunal-cum-Labour Court, the first respondent. But the award having gone against him, he came before this Court in Writ Petition. A learned single Judge of this Court declined to interfere making observations that the charges against the appellant have been proved, that the report of domestic enquiry was also to the same effect and that the Tribunal passed an award basing on the evidence and also the past record of the writ petitioner, which does not suffer from any illegality or infirmity. It is further observed that it is not the case of the writ petitioner that the past record mentioned therein was not correct, that the past record mentioned in the award was an indication that it was within the knowledge of the petitioner and that he was also awarded censures and punishments previously. Because of such facts, the learned single Judge declined to interfere with the order passed by the Tribunal.

The Learned Counsel appearing for the appellant, Shri G. Ramachandran Rao, has substantially and strenuously urged that the Tribunal in deciding the case failed to exercise its jurisdiction vested in it u/s 11-A of Industrial Disputes Act 1947 properly, solely on considering the past record of the appellant, even though such past record did not form part of the charges in the domestic enquiry. According to him, the Tribunal could not have taken into account the past record in determining whether the punishment imposed upon the appellant needed any modification or not.

The Tribunal, after referring to the evidence led in the domestic enquiry and the evidence led before it concluding the domestic enquiry said to have been properly conducted with opportunities to the appellant, held that it was proved that the appellant had tried to misappropriate Rs. 10.70 ps., that he did not have a good record, that he was censured 15 times and that his increments were deferred ten times and was suspended twice for cash and ticket irregularities. It was further held that he was incorrigible and it would be uncharitable on the part of the Court to show any mercy on such an employee of the Corporation. Therefore, an award was passed holding that the respondent was justified in removing the petitioner-appellant from service. From the tenor of the order, it is clear that the Tribunal completely agreed with the findings of the domestic enquiry and the punishment imposed. It did not want to interfere with the decision of the Management and took the view that, in view of the antecedents of the appellant, there could not be any equity in his favour and it would be inappropriate to compel the Corporation to continue the employment of the appellant. Thus, in effect, it confirmed both the findings and the punishment. This itself cannot be held either refusing to exercise the jurisdiction u/s 11-A of the Industrial Disputes Act or exercising it in perverse manner, so as to constitute an error apparent on the face of the record justifying interference of this Court under Article 226 of the Constitution of India.

The learned Counsel for the appellant has represented that even though the Tribunal having found the appellant guilty of the charges of misappropriation of Rs. 10.70 ps., there was no charge of misappropriation against the appellant. The charge against the appellant was that having collected the fare from the passengers, he had not issued tickets or had issued tickets for lower amounts. Such fact, if proved, could never be anything else than misappropriation. Misappropriation is a mental act which has to be inferred from proof of facts. In Krishan Kumar v. Union of India 1959 SC 1390, it was clarified that so far as charge of misappropriation is concerned, all that is necessary for prosecution to establish is entrustment of money and that once entrustment is proved, it is for the person receiving the amount to account for the same, which if he fails to do, misappropriation has to be inferred. We are, hence, not in a position to hold that the appellant in that the appellant was found not guilty of misappropriation. The Tribunal hence confirmed the finding as well as the punishment. But, as already stated above, the appellant could not be given any benefit u/s 11-A of I.D. Act because of proven charges and of misconduct. The past record was not the sole criterion for not exercising the power u/s 11-A of the Act, but was only stated in addition to the finding of guilt of the accused and the gravamen of the charges. In APSRTC v. K. Jelman Reddy 1990 (1) A.W.R. 754, relied upon by the learned Counsel this Court did not lay down any principle to the contrary. The principle decided in the case was that where the Labour Court holds u/s 11-A of the Act a domestic enquiry to be vitiated, it would be open to the Management to place the past record of the employee on record but where the domestic enquiry is held as not, vitiated, it is not open for the Management to place materials relating to the past conduct of the workman for the first time before the Labour Court unless, of course, the question of past conduct was an integral part of the charge. That question was decided in a different context and has no application to the present case.

In the result, we do not find any merit in the appeal. It is accordingly dismissed.