HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
WRIT PETITION Nos.
3777 and 22166 of 2020
COMMON ORDER :
Since both these writ petitions are filed by the same
petitioner seeking the inter-related reliefs, both the petitions are
heard together and are being disposed of by this common order.
2. Heard Sri J.M.Naidu, learned counsel for petitioner and Sri
A.Srinivas Reddy, learned Standing Counsel for the respondents-
TSRTC. Perused the record.
3. The gist of the averments made in both these writ petitions is that the petitioner was appointed as a Driver in the then APSRTC on 12.01.1995 and his services were regularized with effect from 01.08.1995. On 08.11.2017, the on-duty Chart Controller has instructed the petitioner to man the special off bus service No. AP-23-Z-0055 on route No.640 - Zaheerabad - Bidar - MGBS - Zaheerabad - BHEL - Zaheerabad, as the regular driver of the said bus did not report to duty. Accordingly, the petitioner obliged the orders of the on-duty Controller and attended to duty on the above 2 JS, J W.P.Nos.3777 & 22166 of 2020 bus service. Since the petitioner was not regular Driver of the said bus, he was not aware the timings of the said bus service, and therefore, he drove the bus as per the instructions of the on-duty Conductor Mr.P.Emmanuel. While so, a charge sheet was issued to him on 20.11.2017 alleging that he failed to follow the service timings as he drove the bus 42 minutes earlier to the actual incoming time, thereby causing loss of revenue to the Corporation and also inconvenience to the passengers. Case of the petitioner is that as per the Regulations of RTC, the Driver has to drive the bus as per the time-schedule indicated by the on-duty Conductor, and further, as it was a special service and as he does not know the service timings, he followed the instructions of the on-duty Conductor. Pursuant to the charge sheet, the petitioner has made a representation dated 23.11.2017 requesting the 4th respondent to furnish the copies of MTD 141 timing record and SR copy and other relevant records to submit explanation to the charge sheet. However, the respondents, without furnishing such documents, transferred the petitioner to Siddipet depot as a measure of punishment, vide office order dated 19.12.2017. Questioning his 3 JS, J W.P.Nos.3777 & 22166 of 2020 transfer, the petitioner has filed W.P.No.2763 of 2018 and the same is pending.
4. It is further stated that thereafter, the petitioner fell sick on 17.12.2017 and he informed the same to the 1st respondent by letter dated 26.12.2017, duly enclosing the medical certificate. He took treatment at the Government Area Hospital, Zaheerabad and on the advise of Doctors there, he took treatment at Gandhi hospital, Secunderabad. After prolonged treatment, the petitioner has recovered from illness and accordingly he submitted the fitness certificate issued by the Gandhi Hospital, Secunderabad. However, the respondents have issued charge sheet dated 25.04.2018 while the petitioner was undergoing medical treatment. Since the petitioner could not attend the inquiry as he was undergoing treatment, an ex parte inquiry was conducted holding that the charges of unauthorized absence from duties and violation of orders of the superior officers, are proved. Accordingly, a show cause notice of removal dated 23.10.2018 was issued, for which, the petitioner has submitted his explanation on 01.11.2018. Thereafter, the order dated 06.11.2018 was passed by the 2nd 4 JS, J W.P.Nos.3777 & 22166 of 2020 respondent removing the petitioner from service. The appeal preferred by the petitioner was also dismissed. Thereafter, the petitioner has filed revision petition before the 1st respondent, wherein, the punishment of removal was modified as reinstatement into service with postponement of two annual grade increments with cumulative effect and also treating the period of removal as 'not on duty' for all purposes.
5. The grievance of the petitioner is that the impugned orders of punishment are passed without considering the medical certificates submitted by him with regard to his treatment, as required under the circular instructions and Regulations of the Corporation. Hence, the present writ petitions are filed seeking to set aside the orders of punishment.
6. Counter affidavits are filed in both the writ petitions with the same averments. At the outset, it is stated in the counter affidavits that the writ petitions are not maintainable as the petitioner has directly approached this Court without approaching the Labour Court. It is stated that when the petitioner was transferred to 5 JS, J W.P.Nos.3777 & 22166 of 2020 Siddipet Depot vide proceedings dated 19.12.2017, instead of reporting at the said Depot, he produced a private sick certificate about his ill health from 17.12.2017 to 05.01.2018. Therefore, the Corporation has addressed a letter to the petitioner to undergo medical check-up at RTC hospital, Tarnaka and the said letter was acknowledged by the petitioner on 03.02.2018. But, the petitioner did not respond to the said letter nor did he report at Siddipet Depot or at RTC hospital, Tarnaka. Therefore, a charge sheet was issued to the petitioner on 25.04.2018 for his unauthorized absence and also for violating the instructions of the higher officials. Since the petitioner did not submit his explanation to the charge sheet, an inquiry officer was appointed and inspite of acknowledging the notices issued in the inquiry proceedings, the petitioner did not participate in the inquiry. Therefore, an ex parte inquiry was conducted and the inquiry officer has submitted report on 21.09.2018 holding that the charges against the petitioner have been proved. Accordingly, a show cause notice was issued and final order of removal was passed vide proceedings dated 06.11.2018. The appeal filed by the petitioner was rejected on 6 JS, J W.P.Nos.3777 & 22166 of 2020 22.02.2019. When the petitioner has preferred revision, the punishment of removal was modified to that of postponement of two annual grade increments with cumulative effect and the period of removal was ordered to be treated as 'not on duty' for all purposes, vide proceedings dated 14.06.2019. The case of the respondents is that as per the Regulations of the Corporation, the petitioner has to take treatment in any RTC dispensary or at Tarnaka hospital, however, the petitioner has submitted the medical certificate of a private doctor to cover up his unauthorized absence. It is stated in the counter affidavits that as the petitioner has caused loss of revenue to the Corporation and inconvenience to the commuters who utilize the services of the Corporation, he is not entitled for further modification in the punishment imposed on him by the revisional authority. Accordingly, the respondents have prayed to dismiss the writ petitions.
7. Petitioner has filed reply affidavit. While reiterating the averments of the writ affidavits, it is further stated in the reply affidavit that he was neither issued any pass nor referred to the RTC hospital at Tarnaka for getting treatment, therefore, the 7 JS, J W.P.Nos.3777 & 22166 of 2020 respondents cannot blame him for taking treatment in the Government hospitals, which is also permissible under the RTC guidelines.
8. In these writ petitions, there are two limbs of punishments imposed on the petitioner; one is his transfer to Siddipet Depot for manning the special off bus service No.AP-23-Z-0055, 42 minutes earlier to the scheduled time and the other punishment is postponement of two annual grade increments with cumulative effect and treating the period of removal as 'not on duty' for the alleged unauthorized absence from duty on the ground of ill-health.
9. Coming to the first aspect of the matter, on 08.11.2017, petitioner was asked to man the special off bus service No. AP-23-Z-0055, as its regular driver did not report to duty. The allegation against the petitioner was that he drove the bus to the destination 42 minutes earlier to the scheduled time, whereas, his case was that he was new to the said route and further, he drove the bus as per the instructions of the on-duty Conductor, which he was supposed to do as per the RTC Regulations. The on-duty 8 JS, J W.P.Nos.3777 & 22166 of 2020 Conductor has to maintain the timings of the bus service and the Driver has to drive the bus as per the instructions of such Conductor. It is not the case of the on-duty Conductor that the petitioner did not drive the bus as per his instructions. That apart, the inquiry was conducted ex parte without supplying the MTD 141 Card and the SR copy sought by the petitioner for submitting his explanation to the charge. Therefore, the petitioner cannot be made responsible for not maintaining the timings of the bus service, that too, of a special off service which was a new route to him. Hence, the action of respondents in issuing the office order dated 19.12.2017 transferring the petitioner to Siddipet Depot as a measure of punishment, is not sustainable.
10. Coming to the allegation of unauthorized absence, the case of the petitioner is that he was transferred to Siddipet Depot vide order dated 19.12.2017, however, he could not join there as he fell ill from 17.12.2017 onwards i.e. prior to passing of such transfer order. He intimated about his illness to respondent No.1 by letter dated 26.12.2017. The petitioner took treatment first at Government Area Hospital, Zaheerabad and on the advise of 9 JS, J W.P.Nos.3777 & 22166 of 2020 Doctors at the said hospital, he took treatment at Gandhi hospital, Secunderabad and after prolonged treatment, he could recover from the illness. In proof of his taking treatment at Area hospital, Zaheerabad, the petitioner has filed medical certificates for the period from 17.12.2017 to 15.07.2018. He has also filed medical certificates issued by the Gandhi Hospital, Secunderabad in proof of his taking treatment at the said hospital during the period from 15.07.2018 to 14.12.2018 and has also filed the fitness certificate issued by the said hospital stating that he is fit to join duty from 14.12.2018. The grievance of the petitioner is that inspite of filing such medical certificates, the respondents have not permitted him to join duty and during the course of his treatment itself, issued charge sheet dated 25.04.2018, conducted ex parte inquiry and imposed the punishment. The only ground taken by the respondents for not permitting the petitioner to join duty, for conducting inquiry and for imposing the punishment, is that he did not take treatment at RTC hospital, Tarnaka. But, it is to be seen that the petitioner has taken treatment only at Government hospitals i.e. Area hospital at Zaheerabad and at Gandhi Hospital, 10 JS, J W.P.Nos.3777 & 22166 of 2020 Secunderabad and he did not go to any private hospital so as to suspect the medical certificates produced by him. The petitioner has also referred to the Circular dated 08.01.1999 issued by the RTC stating that the authorities will accept the sick certificates issued by the designated RTC Doctor or Government Doctors. Therefore, the petitioner has complied with the said circular instructions, as he took treatment at Government hospitals and produced the medical certificates to that effect. Hence, this Court is of the considered view that the respondents should have taken into consideration such medical certificates before issuing the charge sheet and initiating inquiry proceedings against the petitioner.
11. The learned counsel for the petitioner has relied on the judgment of this Court in TSRTC, Hyderabad and others v. Janaki Ramudu 1, wherein, it is held that imposition of major penalty of removal from service upon the employee without, in any manner, addressing the crucial question as to whether there was sufficient cause behind his absence or not, is not proper. This 1 2017 (1) ALD 254 (DB) 11 JS, J W.P.Nos.3777 & 22166 of 2020 judgment is squarely applicable to the facts of the present case, as in this case also, the respondents have imposed the major punishment of removal on the petitioner without considering the medical certificates filed by him in accordance with the circular instructions of the TSRTC.
12. On the other hand, the learned Standing Counsel for TSRTC has relied on a judgment of Hon'ble Supreme Court in Transport and Dock Workers Union and others v. Mumbai Port Trust and others 2, wherein, it is held that the writ jurisdiction is discretionary jurisdiction and it cannot be exercised when an alternative remedy is available to the petitioner. Though there is no dispute with regard to the law laid down by the Hon'ble Supreme Court in the above judgment, such an objection with regard to availability of alternative remedy is to be taken by the Registry at the time of numbering the writ petition or by the other side, at the early stages of proceedings. Having allowed the proceedings to continue, the respondents cannot now take such an objection and it is not appropriate to drive the petitioner, at this 2 MANU/SC/0958/2010 12 JS, J W.P.Nos.3777 & 22166 of 2020 stage, to avail the alternative remedy before the Labour Court. Hence, this Court is not inclined to entertain the objection of respondents-TSRTC with regard to availability of alternative remedy to the petitioner by way of filing an Industrial Dispute before the Labour Court.
13. For the aforesaid reasons, the impugned orders of punishment are liable to be set aside.
14. Accordingly, both the writ petitions are allowed. The office order No.P3/789(2)/2017-RM:MR, dated 19.12.2017 and proceedings No.PA/675(10)/2019-RM:MR, dated 14.06.2019, both passed by the Regional Manager of TSRTC, Medak Region, are hereby set aside. Consequently, the respondents shall permit the petitioner to join duty. The respondents are further directed to revive the withheld increments of the petitioner and the period of removal from service shall be treated as 'on duty' for all purposes. No costs.
Pending miscellaneous applications, if any, shall stand closed.
____________________ JUVVADI SRIDEVI, J Date: 19.10.2023 ajr