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2024 DIGILAW 680 (TS)

P. Devadas v. VC and MD, TSRTC, Musheerabad, Hyd.

2024-09-06

LAXMI NARAYANA ALISHETTY

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ORDER : Laxmi Narayana Alishetty, J. The present writ petition is filed to declare the action of the 3rd respondent in issuing the impugned order in Proc.No.P1/1(38)/2016-MDCL, dated 23.05.2017 terminating the services of the petitioner as being illegal, arbitrary and violative of principles of natural justice and contrary to Regulation 12(3) of the APSRTC Employees (Classification, Control and Appeal ) Regulations, 1967 (for short, ‘Regulations, 1967’) and consequently set aside the same. 2. Heard Sri G. Rajesh learned counsel for petitioner and Sri M. Ram Mohan Reddy, learned standing counsel for the TSRTC appearing for respondents. 3. The brief facts that lead to filing of the present writ petition are that petitioner was appointed as Conductor in the respondent-Corporation in the year 2013 on contract basis and has been discharging his duties. While so, he submitted leave application for the period from 25.09.2016 to 28.09.2016 as he was suffering with severe illness along with medical certificate, however, the 3rd respondent has issued charge memo dated 28.09.2016 framing two charges without considering the leave application, to which petitioner submitted explanation stating that he could not attend to the duties due to illness only and there was no willful or deliberate negligence on his part and further assured that he will not absent to the duties in future. Not satisfied with the explanation, the respondent authority had appointed Inquiry Officer and the Inquiry Officer, after due inquiry, submitted report dated 07.10.2016 holding that the two charges were proved. 4. That the inquiry report was furnished to the petitioner and called for his objections and the petitioner submitted his objections to the enquiry report on 21.10.2016. Not satisfied with the objections offered by the petitioner, respondent-authority issued show-cause notice dated 21.10.2016 proposing to terminate his services. Petitioner submitted his explanation to the show-cause notice on 28.10.2016. It appears that on assurance given by the petitioner that he would be regular to his duties and would not give any scope in future, the petitioner was allowed to continue his services. 5. Learned counsel for petitioner contended that petitioner submitted leave application for three days i.e., from 20.05.2017 to 22.05.2017 in connection with the marriage of his sister, however, 3rd respondent issued proceedings dated 23.05.2017 terminating his services without issuing any notice and without conducting inquiry. 5. Learned counsel for petitioner contended that petitioner submitted leave application for three days i.e., from 20.05.2017 to 22.05.2017 in connection with the marriage of his sister, however, 3rd respondent issued proceedings dated 23.05.2017 terminating his services without issuing any notice and without conducting inquiry. It is further contended that neither a notice was issued and nor any enquiry was conducted, which is contrary to Regulation 12(3) of the Regulations, 1967. He further contended that impugned proceedings are issued basing on the enquiry report dated 07.10.2016, which was conducted earlier for the absenting period from 25.09.2016 to 28.09.2016 and however, further action pursuant to the enquiry report was dropped and petitioner was allowed to continue in service. Therefore, the impugned proceedings dated 23.05.2017 could not have been issued basing on the earlier enquiry report. Learned counsel for Petitioner further contended that at any rate, punishment imposed on petitioner is very harsh and is not commensurate to the charges leveled against the petitioner and prayed to set aside the impugned proceedings and pass appropriate orders. 6. Learned counsel for petitioner also relied upon the following decisions in support of his contention: (i) TSRTC, Hyderabad and others vs. Janaki Ramudu, 2017 (1) ALD 254 (DB); (ii) M. Murali Krishna vs. APSRTC, Musheerabad, Hyderabad and another, Judgment of Hon’ble Division Bench of this Court dated 05.04.2005 7. Learned standing counsel for respondents filed counter denying the averments made in the writ petition and contended that without exhausting the remedy of appeal and review as contemplated in the Regulations, 1967, petitioner has directly approached this Court and therefore, the writ petition is not maintainable; that respondent-Corporation has followed the due procedure and there is no illegality and violative of principles of natural justice as alleged by the petitioner. 8. He has contended that challenging the termination orders, the writ petition also not maintainable as petitioner has an effective and efficacious alternative remedy before the Labour Court under Section 2 A (2) of the Industrial Disputes Act. He has contended that earlier the petitioner was absent on two occasions, for which action was taken against him; that petitioner has not furnished the medical certificate for his absent period from the TSRTC Hospital authorities and he has furnished medical prescription of the private doctor and finally, prayed to dismiss the writ petition. 9. He has contended that earlier the petitioner was absent on two occasions, for which action was taken against him; that petitioner has not furnished the medical certificate for his absent period from the TSRTC Hospital authorities and he has furnished medical prescription of the private doctor and finally, prayed to dismiss the writ petition. 9. A perusal of the impugned proceedings dated 23.05.2017 disclose that same have been issued basing on the inquiry conducted earlier for the absenting period of the petitioner from duties i.e., from 25.09.2016 to 28.09.2016 and inquiry report dated 07.10.2016. This Court on 27.07.2017 and also on 14.06.2024, directed the learned standing counsel for respondent-Corporation to produce the evidence of service of charge memo on the petitioner, explanation if any submitted by the petitioner and copy of the enquiry report. Pursuant to the direction of this Court, dated 14.06.2024, the respondent-Corporation placed on record the show-cause notice dated 28.09.2016, charge sheet dated 28.09.2016, explanation of the petitioner dated 28.09.2016, enquiry report dated 07.10.2016 etc., which indicates that no fresh enquiry has been conducted with regard to absence period of 20.05.2017 to 22.05.2017. 10. It is further evident from the record that impugned proceedings were issued basing on the inquiry conducted earlier and the enquiry report dated 07.10.2016, after lapse of eight months, which clearly shows that no charge memo has been issued nor any inquiry was conducted in respect of absenting period from 20.05.2017 to 22.05.2017. Further, on assurance given by the petitioner that he would be regular to his duties and would not give any scope in future, no further action was taken basing on inquiry report dated 07.10.2016 and show-cause notice dated 28.10.2016. Therefore, the respondent-Corporation ought to have conducted a fresh inquiry for the absenting period from 20.05.2017 to 22.05.2017. Every minor misconduct cannot be inflated and result in imposition of major punishments, such as termination from service; that punishment must be proportionate and reasonable with reference to the misconduct held established, by following due procedure in conducting inquiry. 11. It is apt to extract Regulation 12(3) of the Regulations, 1967. “Reg.12. Every minor misconduct cannot be inflated and result in imposition of major punishments, such as termination from service; that punishment must be proportionate and reasonable with reference to the misconduct held established, by following due procedure in conducting inquiry. 11. It is apt to extract Regulation 12(3) of the Regulations, 1967. “Reg.12. Procedure for imposing penalties: (1) & (2) xxxx (3) The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges and communicated to the employee charged together with statement of the allegations or a copy of the report on which each charge is based, and of any other circumstances which it is proposed to take into consideration in passing orders on the case.” 12. Perusal of impugned proceedings, the respondent-Corporation has not issued any show-cause notice for the absenting period from 20.05.2017 to 22.05.2017, no charge has been framed and no enquiry has been conducted for the said period and no opportunity was given to the petitioner to defend his case. Therefore, the impugned proceedings dated 25.03.2017 passed by the respondent-Corporation terminating the services of the petitioner is in clear violation of principles of natural justice and also contrary to the Regulations, 1967. 13. In Janaki Ramudu (supra), the Hon’ble Division Bench of this Court held as under : “25. For the sheer failure on the part of the Depot Manager, Kalwakurthy in not applying his mind as to whether the punishment of removal from service would meet the facts and circumstances brought on record, the punishment imposed on both the writ petitioners is bound to be set at naught. 26. The enquiry was conducted, as was already pointed out supra, behind the back of the employee. He has pointed out that aspect to the disciplinary authority, but there was no reflection of this aspect of the matter by the disciplinary authority in the orders of punishment dated 24.02.2015 and 30.04.2015. The very purpose of drawing a show-cause notice was to provide a fair and meaningful opportunity to the delinquent employee to bring forth the mitigating factors available, if any, so that the same can be taken into consideration while finalizing the proceedings. The very purpose of drawing a show-cause notice was to provide a fair and meaningful opportunity to the delinquent employee to bring forth the mitigating factors available, if any, so that the same can be taken into consideration while finalizing the proceedings. While the delinquent employee has brought out all the facts and circumstances, which are in his favour, the Depot Manager has not even adverted to them and he has not assigned any reasons as to why those factors will not fetch any relief to the petitioner concerned. Thus, the Depot Manager has exhibited a mechanical approach to the entire issue and for this reason also the orders of punishment passed by him are not sustainable. 27. It is a very settled principle of law that if a quasi-judicial authority like that of Depot Manager passes an order in breach of principles of natural justice, availability of an alternative remedy is not a factor for denying grant of writ as prayed for.” 14. In M. Murali Krishna (supra), the Hon’ble Division Bench of this Court held as under : “In this background of the matter, we have no hesitation to observe that in the absence of a specific charge for the alleged unauthorized absence for the period from 16.10.2004 to 19.10.2004, passing of the proceedings impugned by taking into consideration the unauthorized absence for the said period without any charge or enquiry, amounts to depriving the opportunity of the delinquent to defend his case and it also amounts to arbitrariness.” 15. In the light of facts and circumstances, discussion and also legal position, the impugned proceedings dated 23.05.2017 are unsustainable and are accordingly set aside. The Writ Petition is accordingly allowed and the respondent-Corporation is directed to reinstate the petitioner into service with 50% back-wages. Further, the termination period shall be treated as continuity of service for the retirement benefits subject to entitlement. There shall be no order as to costs. Pending Miscellaneous Applications, if any, shall stand closed.