HON'BLE SRI JUSTICE J SREENIVAS RAO
WRIT PETITION No.22370 of 2017
ORDER:
This writ petition is filed seeking the following relief: "...to issue an appropriate writ or direction particularly one in the WRIT OF CERTIORARI quash the impugned Proc No PA/1989/2015HZ dated 14 03 2016 in so far as reducing the pay by 2 incremental stages with permanent effect besides treating the removal period as not on duty for all purposes and denial of back wages as arbitrary unjust and in violation of Art 14 16 and 21 of the Constitution of India and consequently the petitioner pray this Honible Court may be pleased to direct the respondents to restore the reducing increments along with all consequential benefits treating the removal period as on duty..."
2. Brief facts of the case:
2.1. The petitioner joined in the respondent Corporation as conductor in the year 1990 after undergoing the due process of selection. Subsequently, his service was regularized in the year 1992. While the petitioner was conducting the bus service on 04.10.2006 in the route of Nagarkurnool to Kalwakurthy, a check was exercised between stage No.9 and 8 about 11.00 hours and the checking officials issued charge memo alleging that the petitioner has not issued the ticket to one passenger even after collecting the fare. The petitioner submitted his explanation to the said charge memo and being not satisfied with the same respondent No.3 suspended the petitioner from service and issued charge sheet on 12.10.2006. Petitioner submitted his explanation denying the charges leveled against him. Being not satisfied with 2 the same, respondent No.3 ordered enquiry and basing on the enquiry report removed the petitioner from services on 10.01.2007. Aggrieved by the same, petitioner filed appeal and revision and the same were rejected on 24.09.2007 and 16.11.2015 respectively. Questioning the said orders, petitioner preferred review petition before respondent No.2 invoking Regulation 30 of TSRTC/APSRTC, C.C. & A Reg. 1967 and respondent No.2 modified the punishment and ordered reinstatement of the petitioner into service, by reducing his pay by two incremental stages which will have future effect and the period from date of removal from service to reinstatement shall be treated as not on duty for the purpose of leave, wages, increments, seniority and settlements by its order dated 14.03.2016. Questioning the said order, the petitioner filed the present writ petition.
3. Heard Sri V.Narsimha Goud, learned counsel for the petitioner and Sri Thoom Srinivas, learned Standing Counsel for the respondent Corporation.
4. Learned counsel for the petitioner contended that during the course of enquiry, the checking officials brought one person alleging that the said person has travelled in the bus, but the 3 ticket was not issued to him in spite of collecting the fare. The petitioner submitted explanation stating that the said person has not travelled in the bus and question of not issuing the ticket by collecting the bus fare does not arise and further contended that the TTI has failed to take thumb impression of the said passenger, and further contended that, during the course of enquiry respondent Corporation has not produced any evidence to prove the charges leveled against the petitioner and in spite of the same, enquiry officer submitted enquiry report stating that the charges leveled against the petitioner were proved.
5. Per contra, learned Standing Counsel submits that during the course of enquiry, the enquiry officer has given all opportunities to the petitioner to defend his case and after conducting detailed enquiry submitted enquiry report on 18.11.2016 proving the charges leveled against the petitioner. He further submits that the petitioner has not questioned the said enquiry findings nor raised any objection during the course of enquiry and the petitioner is not entitled to contend that the enquiry officer without properly conducting the enquiry submitted enquiry report and the impugned order passed by review authority is in accordance with law. The petitioner without availing the 4 remedy as provided under Section 2-A(2) of the I.D.Act, 1947 filed the present writ petition and the same is not maintainable under law. In support of his contention he relied upon the judgment of State Bank of India and Others Vs. Narendra Kumar Pandey 1.
6. Having considered the rival submissions made by the respective parties and upon perusal of the material available on record, it reveals that petitioner joined services in the respondent Corporation as conductor in the year 1990 and his services were regularized in the year 1992. On 04.10.2006, while the petitioner was conducting bus service, a check was exercised and the checking officials have issued a charge memo alleging that he has not issued the ticket to one passenger after collecting the fare, for which the petitioner submitted his explanation. Being not satisfied with the same, respondent No.3 suspended the petitioner from service on 12.10.2006 and issued charge sheet with the following charges:
1. For having failed to observe the Rule "Issue and Start' which constitutes misconduct under Reg. 28(xxxii) of APSRTC Employees (Conduct) Reg.1963.
2. For having failed to issue ticket to a passenger who boarded you bus at Nagarkurnool bound for Nellikonda X road Ex. Stages 9 to 9/8 even after collecting the requisite fare of Rs.3.00 at the boarding point itself, which constitutes misconduct under Reg.28(vi-a) of 1 2013 2 SCC 740 5 APSRTC Employees(conduct) Reg. 1963.
7. The petitioner submitted his explanation to the above said charge sheet. Being not satisfied with the same, the respondent Corporation ordered enquiry and basing on the enquiry report submitted by the enquiry officer, respondent No.3 removed the petitioner from services. Questioning the same, the petitioner filed appeal and revision which were rejected on 24.09.2007 and 16.11.2015 respectively. Aggrieved by the same, the petitioner filed review petition before respondent No.2 and respondent No.2 modified the punishment order and ordered reinstatement of the petitioner by imposing following conditions:
1. On his reinstatement his pay is reduced by two incremental stages which will have future effect and
2. that the period from the date of removal from service to the reinstatement shall be treated as not on duty for the purpose of leave, wages, increments, seniority and settlements.
8. The contention raised by the learned counsel for the respondent Corporation that the petitioner without exhausting the alternative remedy as available under the provisions of Section 2 A(2) of the Act, filed this writ petition is not tenable under law, especially after lapse of five years and in view of the above fact, the principle laid down in State Bank of India supra is not applicable to the facts and circumstances of the present case. 6
9. Taking into consideration the length of services rendered by the petitioner and also to meet the ends of justice, the impugned order dated 14.03.2016 passed by respondent No.2 imposing punishment of reduction of petitioner's pay by two incremental stages which will have future effect and the period from the date of removal to reinstatement shall be treated as 'not on duty' for the purpose of leave, wages, increments, seniority and settlements is modified into without cumulative effect without any monetary benefits and the removal period is treated as 'on duty' for the purpose of claiming terminal benefits only.
10. Accordingly, the writ petition is disposed of. No costs.
As a sequel thereto, miscellaneous applications, if any, pending in this writ petition shall stand closed.
_____________________________ JUSTICE J SREENIVAS RAO 08th September, 2023 PSW