Research › Search › Judgment

Andhra High Court · body

2012 DIGILAW 872 (AP)

Md. Gulam Mohammed v. Regional Manager, APSRTC

2012-09-14

NOOTY RAMAMOHANA RAO

body2012
Judgment : The petitioner, a conductor with the Andhra Pradesh State Road Transport Corporation (APSRTC), seeks a writ of mandamus for declaring the action of the 1st respondent, the Regional Manager, APSRTC in not ordering reengagement with continuity of service benefit, as bad in law. The case of the petitioner is that after going through the process of selection necessary for making regular recruitment, he came to be appointed as a contract conductor on 22.12.2006 and was attached to Hyderabad Central University (HCU) Bus Depot. However, when the petitioner remained unauthorizedly absent from duty from 07.05.2007 up to 30.06.2007, the Depot Manager, HCU Bus Depot terminated his service, through his proceedings, dated 30.06.2007, without conducting any enquiry whatsoever and without providing any opportunity to him. It appears, the petitioner has preferred an appeal against the said order only on 05.12.2011 to the Divisional Manager, Charminar Depot, nearly after 4 ½ years time has lapsed. The Divisional Manager rejected the said appeal through his proceedings, dated 10.01.2012. Unfortunately, copy of the said order dated 10.01.2012 of the Divisional Manager has not been exhibited in the paper book. It is therefore, assumed that the Divisional Manager has rejected the appeal as it was preferred very belatedly. The writ petitioner thereafter, has preferred a review petition on 27.01.2012 to the Regional Manager, Hyderabad Region. The Regional Manager considered his review petition and also examined the record. The Regional Manager has clearly recorded a finding that the explanation offered by the petitioner for remaining absent unauthorizedly and continuously for a period of 53 days is not convincing. It is also noted by the Regional Manager that his unauthorized absenteeism resulted in cancellation of several bus services and also loss of revenue to the Corporation apart from causing inconvenience to the travelling public and thus tarnished the image of the Corporation. Therefore, he has held that the action of the Depot Manager as well as the order of the Divisional Manager does not warrant any interference. However, since this is the first occasion where the petitioner remained unauthorizedly absent, on humanitarian grounds, a lenient view was taken and more with a view to provide him an opportunity to improve his attendance in future and become a profitable employee of the Corporation, he passed orders on 13.02.2012 reengaging him as a conductor on contract basis, subject to certain conditions contained therein. The petitioner is now aggrieved that the Regional Manager has not granted him benefit of the continuity of service. The petitioner seeks to place reliance upon a judgment rendered by this Court on 04.07.2012 in Writ Petition No. 20134 of 2012. During the course of the said judgment, an order passed earlier on 29.02.2012 in a batch of cases has been noticed, wherein it was directed that in cases where the appellate/revisional authority has directed reengagement of the contract employees afresh, such employees shall be entitled to benefit of continuity of service from the date of termination till the date of re-engagement, except for the period during which they were absent and the said continuity of service granted to the employees shall be without any monetary benefit and shall be counted only for the purpose of regularization at a future date. The petitioner seeks the same relief here. I am afraid, that the orders passed earlier by my learned Brother Justice Vilas V. Afzulpurkar and subsequently, by my learned Brother Justice P.V. Sanjay Kumar have not been properly construed or understood. Contract employees of the Corporation, working either as drivers or conductors or ministerial employees or semi-skilled employees, if were to be penalized on grounds of misconduct attributable to them, an enquiry ought to have been conducted and a fair opportunity should have been provided to them to defend themselves, as per the policy guidelines framed by the Corporation, as part of fairness in action. Since no such opportunity has been accorded by the Depot Managers before terminating the services of such contractual appointees, it is consistently held by this Court that such terminations cannot be treated as valid in the eye of law, but however, the period of service rendered by the employee concerned to the Corporation was ordered not to be totally ignored for the benefit of regularization. Therefore, the period of service rendered by the contractual appointees till their services were terminated, should be counted for the purpose of regularization of their service, inasmuch as the regularization of service of contractual employees is undertaken based upon the number of man days put in by them. However, the number of days that they were unauthorizedly absent from duty has to be deducted for the purpose of such computation. However, the number of days that they were unauthorizedly absent from duty has to be deducted for the purpose of such computation. Whereas the orders of this Court referred to supra are sought to be understood as if this Court wanted to confer a benefit of continuity of service for the period that followed the date of termination till the date of re-engagement. To my mind, that does not appear to be the intended purpose of the orders passed by this Court. Otherwise, the expressions “except for the period during which they were absent” would not have been chosen by the learned Judges. After all, once the services of a contractual appointee are terminated by the Depot Manager concerned, till he gets reengaged, either by the appellate or revisional authority, he would remain to be away and absent from service. The main cause behind the very termination of contract of employment by the Depot Manager was due to the unauthorized absence caused by the contractual appointee, resulting in cancellation of bus services, dislocation of work, loss of revenue and most importantly, the hardship caused to the commuting public all due to non-availability of the contractual appointee for operating certain services. Therefore, it is clearly intended by this Court to confer benefit for the past service rendered prior to the date of termination to be reckoned and computed for the purpose of regularization of their service at a future date. It is not in dispute that regularization of contractual services is undertaken on the strength and basis of the number of man days put in by such contractual appointees. The contractual appointees will be engaged depending upon the quantum of work load that is available and the urgency and necessity to engage their services for such purposes. Therefore,the Court intended to confer the benefit of past service rendered by the contractual appointees minus the number of days they were absent either due to exigencies or unauthorizedly together. Such a measure would stand to reason and logic, inasmuch as for want of requirement of manpower, the services of a contractual appointee would normally be utilized by the Corporation on a continuous basis. In a given situation, there could be gaps in between two spells of such utilization of service. Such a measure would stand to reason and logic, inasmuch as for want of requirement of manpower, the services of a contractual appointee would normally be utilized by the Corporation on a continuous basis. In a given situation, there could be gaps in between two spells of such utilization of service. Without in any manner and without unduly bothering about the artificial breaks that are normally conceived and put in place, the past service benefit for the purpose of working out the man days put in should not be lost out. Making a contractual appointee to derive such a benefit does appear to be reasonable and fair. That appears to be the plain meaning or effect which this Court intended to confer. Per contra, let us examine the view point canvassed by the petitioner in this Writ Petition. He solicits the gap period between his date of termination up to the date of reengagement to be counted for regularization. Let us examine the facts in the present case a little more closely. The petitioner’s contractual services came to be terminated by the Depot Manager, HCU Bus Depot on 30.06.2007. He has not moved his little finger in the matter thereafter, but took nearly 4 ½ years to prefer an appeal to the Divisional Manager only on 05.12.2011. That appeal was rejected by the Divisional Manager on 10.01.2012. Then the writ petitioner preferred a review petition before the Regional Manager on 27.01.2012. That was promptly considered by the Regional Manager and the orders were passed by him on 13.02.2012, re-engaging the services of the petitioner as a contractual conductor and attaching him to the Bus depot at Mehadipatnam. Therefore, if the petitioner were to be extended the benefit of continuity of service from 01.07.2007, the date following the date of his termination, namely 30.06.2007, up to 13.02.2012, that will be conferring a much bigger benefit upon the writ petitioner than could have been conceived in principle or equity. In this context, it would be worthy to remember that the writ petitioner’s services came to be engaged as a contractual appointee only on 22.12.2006. He has hardly put in four months of continuous service thereafter and he remained unauthorizedly absent from 07.05.2007 up to 30.06.2007. In this context, it would be worthy to remember that the writ petitioner’s services came to be engaged as a contractual appointee only on 22.12.2006. He has hardly put in four months of continuous service thereafter and he remained unauthorizedly absent from 07.05.2007 up to 30.06.2007. As against this short spell of four months of service, one cannot, based upon any principle, either in law or in equity, can confer nearly five years benefit. I am therefore, clear in my opinion and belief that this Court never intended to confer any such undue benefit. I therefore, do not find any justifiable reason to entertain the Writ Petition in terms of its prayer, but however, I consider that the petitioner would be entitled to count or add the number of man days put in by him in the service of the Corporation between 22.12.2006 and 07.05.2007 for the service that he might put in subsequent to the orders passed by the Regional Manager on 13.02.2012 for purposes of regularization. The Writ Petition is accordingly, disposed of. No costs. Consequently, the miscellaneous applications, if any shall stand disposed of.