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CASE NO.: Appeal (civil)  4698 of 2006

PETITIONER: Depot Manager, A.P.S.R.T.C.

RESPONDENT: Raghuda Siva Sankar Prasad

DATE OF JUDGMENT: 07/11/2006

BENCH: Dr. AR. Lakshmanan & Tarun Chatterjee

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 25393/2005)                  Dr. AR. Lakshmanan, J.

Leave granted.

The Department Manager A.P.S.R.T.C. is the appellant in  this appeal.  The respondent joined as cleaner in the APSRTC   (in short ’the Corporation’) on 02.10.1976.  While working as  mechanic, he was involved in a serious case of theft.  On  23/24.08.1986, while working in the night shift, he committed  a theft of Fuel Injection Pump.  This apart, he was also  involved in stealing an alternator bearing while working in the  night shift on 11.09.1986.         He also unauthorisedly entered into the tyre section of  the depot and stole a new tube of 900 x 20 size on  23/24.09.1986.  A sponge sheet was also stolen from the  garage of Gajuwaka Depot, where he was working.  A charge- sheet was issued to the respondent framing four charges.   The charges are as under: 1.      For having stolen the Corporation property of fuel  injection pump bearing No. AVD 2305 which was fitted  to the engine No. 170207 during the night shift on  23/24.08.86 in the garage which constitutes  misconduct under Reg. No. 28(x) of APSRTC  Employees conduct, Reg.1963.

2.      For having stolen the Corporation property of an  alternator bearing No. 3440 during the night shift of  11.09.86 when it was fitted to the parked vehicle in  the garage which constitutes misconduct under Reg.  No. 28(x) of APSRTC Employees Conduct, Regulations,  1963.

3.      For having unauthorisedly entered into the tyres  section and stolen the new tube of 900 x 20 size on  23/24.09.86 which constitutes misconduct under Reg.  No. 28(x) of APSRTC Employees Conduct, Regulations,  1963.

4.      For having stolen the sponge sheets SR from the  garage of Gajuwaka depot which constitutes  misconduct under Reg. No. 28(x) of APSRTC  Employees Conduct, Regulations, 1963.

         An Enquiry Officer was appointed to enquire into the

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charges and submit a report.  In the domestic enquiry  conducted on the charges levelled against the respondent, full  and fair opportunity was given to him to defend himself.   The  Enquiry Officer, on completion of the domestic enquiry, had  submitted a report holding the respondent guilty of all the  charges that were levelled against him.         A criminal case was also initiated against the respondent  in C.C. No. 751/1987.  The Criminal Court by its judgment  and order dated 16.05.1987 acquitted the respondent of the  charges that were levelled against him.          Basing on the Enquiry Officer’s report, the Depot  Manager, on independently examining the matter, came to a  conclusion that orders of removal would be an appropriate  punishment for the proved charges of theft.  Accordingly, the  Depot Manager issued proceedings for removing the  respondent from the services of the Corporation.         Aggrieved by the order of his removal, the respondent  raised an Industrial Dispute.  In I.D. No. 139/1992, the  Labour Court came to the conclusion that the charges holding  that the respondent was involved in a case of theft of the  property belonging to the Corporation were correctly proved  and the punishment of removal was justified under the factual  circumstances of the case.         Aggrieved by the award of the Labour Court, the  respondent preferred a writ petition before the High Court of  Andhra Pradesh at Hyderabad.           The learned Single Judge of the High Court came to a  conclusion that the charges of theft were correctly proved  against the respondent.  But, however, came to a conclusion  that punishment of removal was not in consonance with the  gravity of the charges proved against the respondent.   Accordingly, the High Court held that the Labour Court ought  to have exercised its power under Section 11-A of the  Industrial Disputes Act.  Accordingly, the Single Judge held  that the respondent had put in 12 years of unblemished  service and deserved a lenient view in the matter.  Hence, by  his judgment and order dated 31.12.2004, the learned Single  Judge passed a judgment by setting aside the order of removal  and directed reinstatement of the respondent with continuity  of service but without back wages.           The Appellant - Corporation preferred a writ appeal  before the Division Bench of the High Court under Clause 15  of Letters Patent.   By its impugned order dated 29.06.2005, the Division  Bench of the High Court dismissed the writ appeal filed by the  appellant herein.  Aggrieved against the order passed by the  Division Bench, the above Civil Appeal has been filed in this  Court. We heard Mr. Mahesh Babu, learned counsel for the  appellant and Mr. Vijaya Bhaskar, learned counsel for the  respondent.  Learned counsel for the appellant submitted that  the High Court has failed to appreciate that the misconduct of  theft involved in by the respondent was a serious misconduct  warranting no less a punishment than removal from services  of the Corporation and that the High Court has also failed to  appreciate that the delinquent employee gave a statement in  which he admitted that he had stolen the property of the  Corporation but handed over the same to his friend for sale,  and that the Labour Court, on the basis of the said evidence,  rightly removed the respondent from the services of the  Corporation.  Arguing further, learned counsel for the  appellant submitted that the Division Bench of the High Court  has also failed to appreciate that once the Labour Court in its  award, passed orders of removal, by taking into consideration  the entire factual circumstances of the case, it does not

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deserve interference.  The High Court, in its extraordinary  jurisdiction under Article 226 of the Constitution could not  interfere with the said order of removal. Mr. Vijaya Bhaskar, learned counsel for the respondent  strenuously contended that the order passed by learned Single  Judge and by the Division Bench of the High Court does not  call for any interference and that the Division Bench of the  High Court has ordered only reinstatement of the respondent  without back wages and therefore the Corporation is not  prejudiced in any manner.  He further submitted that the  respondent had put in 12 years of service and deserves a  lenient view in the matter.         Learned counsel for the respondent further submitted  that the respondent had an unblemished career in the past  and therefore a lenient view should have been taken as rightly  taken by the learned Single Judge and as modified by the  Division Bench of the High Court in ordering only  reinstatement.          We have carefully considered the rival submissions and  perused the orders passed by the Labour Court and of the  High Court and other annexures.  In our opinion, the High  Court has failed to appreciate that the delinquent employee  categorically admitted that he had stolen the property of the  Corporation.  The Labour Court, on a careful perusal of the  evidence, rightly ordered removal of the respondent from  service.  When the delinquent employee admitted his guilt  before the Enquiry Officer that he had handed over the  alternator from pan shop to the police authorities and further  deposed that he had handed over the stolen property and  requested the Labour Court to excuse him since it was his first  offence.  The Tribunal rightly set aside the request by taking  into consideration the entire factual circumstances on record  and after careful examination of the same and held that the  delinquent employee does not deserve any sympathy and  therefore he ordered  removal from service.   Learned Single Judge of the High Court likewise also  failed to appreciate the statement given by the delinquent  employee admitting the guilt and however ordered  reinstatement, continuity of service but without back wages.  Likewise, the learned Judges of the Division Bench also  failed to appreciate that once the Labour Court in its award  held removal from service by taking into consideration the  entire  facts and circumstances of the case, it does not deserve  interference and that the High Court in its extraordinary  jurisdiction under Article 226 of the Constitution could not  have interfered with the said orders of the removal. The enquiry reports also clearly reveal that the  departmental enquiry was conducted after giving fair and  reasonable opportunity to the delinquent official, after  following the procedure and as per the regulations. The learned Single Judge considered the past conduct of  the delinquent employee as one of the ground in taking a  lenient view.  In our view, past conduct of workman is not  relevant in departmental proceedings.  Likewise, the learned  Single Judge has erred in holding that the workman did not  involve in any misconduct of theft during his past services and  on that ground, granted reinstatement with continuity of  service. Learned Judges of the High Court have also failed to  appreciate that once an employee lost the confidence of  employer, it would not be safe and in the interest of the  Corporation to continue the employee in the service.  The  punishment, imposed by the management in the facts and  circumstances of the case, is not disproportionate and that the  punishment of removal from service is the just and reasonable

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and proportionate to the proved misconduct. In our view, the theft committed by the respondent  amounts to misconduct and, therefore, we have no hesitation  to set aside the orders passed by the learned Single Judge and  also of the Division Bench and restore the order of removal of  the respondent from service.  When the Labour Court has  proved the charges, no interference by the learned Single  Judge or by the Division Bench of the High Court was called  for.  In the instant case, the jurisdiction vested with the  Labour Court has been exercised judiciously and fairly.  In our  opinion, the conclusion arrived at by the High Court in  ordering reinstatement; continuity of service was shockingly  disproportionate to the nature of charges already proved which  is in the nature of theft. It is also not open to the Tribunal and Courts to  substitute their subjective opinion in place of the one arrived  at the domestic Tribunal.  In the instant case, the opinion  arrived at by the Corporation was rightly accepted by the  Tribunal but not by the Court.  We, therefore, hold that the  order of reinstatement passed by the Single Judge and the  Division Bench of the High Court is contrary to the law on the  basis of a catena of decisions of this Court.  In such cases,  there is no place for generosity or sympathy on the part of the  judicial forums for interfering with the quantum of  punishment of removal which cannot be justified.  Similarly,  the High Court can modify the punishment in exercise of its  jurisdiction under Article 226 of the Constitution only when it  finds that the punishment imposed is shockingly  disproportionate to the charges proved. Interfering therefore with the quantum of punishment of  the respondent herein, is not called for.  In our opinion, the  respondent has no legal right to continue in the Corporation.   As held by this Court, in a catena of judgments that the loss of  confidence occupies the primary factor and not the amount of  money and that sympathy and generosity cannot be a factor  which is permissible in law in such matters.  When the  employee is found guilty of theft, there is nothing wrong in the  Corporation losing confidence or faith in such an employee  and awarding punishment of removal.  In such cases, there is  no place of generosity or place of sympathy on the part of the  judicial forums and interfering with the quantum of the  punishment.

For the aforementioned reasons, we hold that the orders  passed by learned Single Judge and as modified and affirmed  by the learned Judges of the Division Bench in Writ Appeal No.  108 of 2005 dated 29.06.2005 deserves to be set aside.   Accordingly, we do so.   In the result, the appeal filed by the appellant  Corporation stands allowed and order of removal passed by  the Labour Court is confirmed.  However, there shall be no  order as to costs.