Telangana High Court
T.Sanjeev Rao vs The Telangana State Road Transport on 5 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION Nos.2931 & 39381 of 2015
and 23878 of 2017
COMMON ORDER:
Since the issue involved in all the writ petitions is intrinsically connected, the writ petitioners are heard together and are being disposed of by this common order.
2. For convenience, APSRTC/TSRTC i.e., petitioner in W.P.No.2931 of 2017 and respondents in W.P.Nos.23878 and 39381 of 2015 is referred to as " the Corporation", T.Sanjeeva Rao, who is respondent No.2 in W.P.No.2931 of 2015 and petitioner in W.P.Nos.23878 and 39381 of 2015 is referred to as "the employee" and the Industrial Tribunal - cum - Labour Court - cum - VI Additional District and Sessions Court, Godavarikhani is referred to as "the Labour Court". W.P.No.2931 of 2015:
3. This writ petition is filed by the Corporation challenging the award dated 17.12.2013 in I.D.No.145 of 1997, on the file of the Labour Court.
LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 2
4. Brief facts leading to filing of the writ petition are that employee originally filed an application vide I.D.No.145 of 1997 under Section 2-A of Industrial Disputes Act, 1947 (for short 'Act, 1947') and Section 2(2) of A.P. Amendment Act, 1987 before the Labour Court, alleging violation of Section 25(F) of Act, 1947 and claimed that he worked as Khalasi from 01.01.1989 to 23.11.1996 and the Corporation not permitted him to work at Zonal Stores with effect from 25.11.1996 without showing any valid reason and without any order. However, the Labour Court dismissed the said I.D. vide its order dated 27.12.2000.
5. Aggrieved by the order dated 27.12.2000, the employee filed W.P.No.16628 of 2001 before this Court and this Court vide order dated 13.02.2012 remitted back the case to Labour Court for fresh disposal after duly giving opportunity of hearing to both sides. After elaborate enquiry, the Labour Court passed award on 17.12.2013 by allowing I.D.No.145 of 1997 and directed the Corporation to reinstate the employee into service in the same capacity, in which he worked prior to his termination with continuity of service and all attendant benefits LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 3 with 50% back wages. The said award was published in G.O.Rt.No.293, dated 05.02.2014.
6. Aggrieved by the above award, the Corporation filed the present writ petition. The employee has filed counter affidavit denying the averments made in the affidavit, except passing of the award dated 17.12.2013 in ID.No.145 of 1997 by the Labour Court directing the RTC to reinstate the employer into services with all attendant benefits including 50% back wages. It is further contended that the employee fulfilled all the conditions for regularization of the services and his termination is illegal under Section 25F of ID Act and also stated that grounds raised in the writ petition are devoid of merits and the writ petition is liable to be dismissed.
W.P.No.39381 of 2015:
7. This writ petition is filed by the employee to declare the office order passed in Proc.No.P2/122(1)2013-WM;KR, dated 05.11.2015 as illegal, arbitrary and against the principals of natural justice and to declare the award passed by the Labour Court in I.D.No.145/1997 as illegal and arbitrary to the extent not awarding regularization of services from the date of LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 4 termination, i.e. November 1996 and not granting full back wages to the employee and consequently, direct the Corporation to effect all service benefits and continuity of service by regularizing the services of the empoyee in the same cadre.
8. Brief facts leading to filing of present writ petition are that the petitioner/employee was working in the respondent Corporation as daily wage kalasi. As the employee was asked to discontinue his services without following due process of law, he filed I.D. No. 145 of 1997 before the Labour Court, Godavarikhani, Karimnagar District and the Labour Court vide order dated 17.12.2013 passed an award directing the corporation to reinstate the employee into service in the same capacity in which he worked prior to his termination with continuity of service and all attendant benefits with 50% back wages and the employee was joined in the duty and working the same.
9. While so, the Corporation filed W.P.No.2931 of 2015 questioning the award passed by the Labour Court in I.D.No.145 of 1997 and while admitting the said writ petition, this Court granted interim stay only to the extent of payment of LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 5 back wages. The Corporation issued proceedings in Case No. P2/122(1)/2013-WM:KRMR dated 29.10.2015 and implemented the order passed by the Labour Court which read as under:
"In view of the orders of the Hon'ble High Court in W.P.No.2931/2015 and as per the directive of SLO/Hyd Sri T.Sanjeea Rao S/o.Venkataiah has been appointed as Cleaner/Shramik w.e.f 28.02.1998 with probationary right on the pay of Rs.875-25-950- 35-1400-40-1560 (RPS 1989) with all other usual allowance admissible from time to time as per the rules in force and posted at Zonal Stores, Karimnagar. He is allotted with Staff No.323646.
This has the approval of the Competent Authority".
10. However, subsequently, the Corporation, without issuing any notice to the employee, passed proceedings vide No. P2/122(1)/2013-WM:KR, dated 05.11.2015, cancelling the earlier proceedings dated 29.10.2015, by which the service of employee were regularized. It is further contended that the other employees, who were similar to the employee in the Corporation were regularized and scale was conferred to them; that the employee is entitled to be continued in the service with all LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 6 attendant benefits except back wages; that he has been in continuous services as on the date of his termination and his services could have been regularized long back by fixing the scale etc.
11. The Corporation has filed counter affidavit denying all the averments made in the writ affidavit and inter alia contended that without prejudice to challenge to the award of the Labour Court, the employee was reinstated into service on 07.04.2014. Subsequently, the Corporation filed W.P.No.2931 of 2015 before this Court and on 12.02.2015 and this Court had granted interim stay only to the extent of back wages. It is also contended that the Works Manager, erroneously issued proceedings dated 29.10.2015 appointing the employer as cleaner/shramik with effect from 28.02.1990 with probationary right along with all other usual allowance admissible from time to time as per the rules in force and allotted Staff No.323646. Therefore, the Corporation issued proceedings dated 05.11.2015 cancelling the proceedings dated 29.10.2015.
12. It is further contended that this Court vide its order dated 04.12.2015 directed the Corporation to verify the date of grant LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 7 of regularization and scale to the immediate junior, who was appointed subsequently to the date of original appointment of the employee and grant the consequential benefits in compliance of the award passed and any such decision shall abide the result of the writ petition. However, as back wages are stayed by this Court, the petitioner is not entitled to receive any back wages till the disposal of W.P.No.2931 of 2015.
13. It is also contended that since the employee did not fulfill the criteria for regular appointment, he could not be appointed on the regular time scale of pay. Accordingly, proceedings dated 29.10.2015 were cancelled vide proceedings dated 05.11.2015 by duly giving reasons for cancellation. It is further contended that for withdrawal of the orders dated 29.10.2015, the employee is not entitled to be put on notice, as it was an error which is sought to be rectified vide proceedings dated 05.11.2015.
14. The Corporation has referred to the judgment of Hon'ble Apex Court in the case of State of Karnataka and others Vs. Uma Devi and others (2006 (4) SCC1), wherein it is held that "if it is a contractual appointment, the appointment comes to an LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 8 end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment".
15. It is finally contended that since the employee was not appointed through regular process of recruitment and no appointment orders were issued, he is not entitled to claim for regularization of his services.
W.P.No.23878 of 2017:
16. This writ petition is filed by the employee to declare the impugned order vide No.P2/255(1)/2013-WM:KRMR, DT:
19.06.2017 as illegal, arbitrary and against the principles of natural justice and set aside the same and consequently, direct the Corporation to continue the services of employee with all service benefits pending final disposal of main writ petition.
17. It is contended that the petitioner being the low grade employee in the Corporation was made to undergo such a laborious legal battle against the Corporation for the last 20 LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 9 years, to re-gain his employment and was appointed as shramik by order dated: 07.04.2014; that the officers of the Corporation have developed personal grudge against him and started showing a step mother treatment and waiting for a chance to terminate his services, in the process of such efforts, the Corporation issued proceedings against the employer vide proceedings No.P2/255(1)/2013/WM-KRMR, dated 25.05.2017 to show cause as to why his services should not be disengaged basing on his age. The employee submitted his explanation on 03.06.2017 stating that at the time of his joining on 01.01.1989 as a causal shramik in the Corporation, the Corporation has not asked any qualification and age proof. The employee stated his date of birth as 15.12.1965 and the he stated his age as 32 at the time of filing ID 145/1997 before Labour Court; that the Corporation subjected the employee to medical examination in the year 2014 and the Medical Officer, Corporation Dispensary vide certificate dated 10.04.2014 determined the age of the employee as 50 years, which is an authentic proof to show that he was born in the year 1965.
LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 10
18. It is stated that the Corporation made an enquiry and got a certificate of date of birth from ZPHS at Garrepally and as per the letter dated 29.09.2016 of Head Mistress, ZPHS, the employee pursued his education in their school from 4th to 10th class during 14.09.1963 to 08.10.1971 and that his date of birth was shown as 05.01.1955. According to the Corporation the employee attained the age of superannuation of 58 years as on 05.01.2023, i.e. even prior to the passing of the award by the Labour Court in I.D.No.145 of 1997 dated 17.12.2013.
19. It is further stated that the Corporation conducted vigilance enquiry behind his back subsequent to the order passed by the Labour Court in I.D.No.145 of 1997 and also order passed by this Court in W.P.No.39381 of 2015. Without considering the explanation given by the employee to the show cause notice dated 19.06.2017, without following the procedure contemplated under RTC Service Regulations and merely on the basis of letter issued by the Head Mistress, ZPHS, Sultanabad, the Corporation passed impugned termination order on 19.06.2017, which is bogus.
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20. This Court, vide interim order dated 20.07.2017, in W.P.M.P. No.29545 of 2017 suspended the operation of impugned notice dated 19.06.2017 and further direction to continue the employee in service by observing that the impugned order is not preceded by any disciplinary enquiry.
21. This Court by order dated 20.07.2017 in WPMP No. 29545/2017 in W.P.No.23878/2017, suspended the impugned order dated 19.06.2017. However, respondents despite interim order have not continued the services of the employee. Therefore, the employee filed contempt case vide CC No.479 of 2018 to punish the respondents for willfully disobeying in implementing the order of this Court, dated 20.07.2017.
22. The Corporation has filed the counter affidavit denying the allegations, averments made in the writ petition, however, admitted the fact of passing of award by the Labour Court and filing of writ petitions, i.e. W.P.Nos.16628 of 2001 and 2931 of 2015.
23. The Corporation filed W.A.No.1958 of 2017 against the order dated 20.07.2017 passed in W.P.M.P.No.29545 of 2017 in LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 12 W.P.No.23878 of 2017 and the Hon'ble Division Bench of this Court vide interim order dated 21.11.2019 stayed the operation of the order till the next date of hearing.
24. Further, it is contended that the employee vide his explanation dated 03.06.2017 did not dispute the school record and certificate issued by the Head Mistress dated 29.09.2016 and he failed to produce any other documents to prove his age or date of birth: that the medical certificate cannot be taken as a basis when the date of birth certificate is available from the school record and further the identity card issued by Election Commission of India shows the age of the petitioner as 38 years as on 01.01.1995 and other documents, i.e. Aadhar Card & House hold card (Ration Card) cannot be taken as basis for proof of date of birth, when the school record is available.
25. It is finally contended that the disengagement of the petitioner on attaining the age of superannuation cannot be treated as a disciplinary action, hence, no enquiry is required and no person can be continued in employment beyond the age of retirement specified in the regulations.
LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 13
26. Heard Mr.T.Kistaiah, learned counsel for the employee and Mr.Gaddam Srinivas, learned Standing Counsel for TSRTC. Consideration:
27. Perusal of the record would show that the employee worked as Shramik in Karimnagar Depot from 05.05.1989 to 25.11.1996 on daily wages. The services of employee were terminated orally and he was not allowed to perform duties from 25.11.1996. Aggrieved by the same, employee filed I.D.No.145 of 1997 before the Labour Court and the same was dismissed by the Labour Court vide its award dated 27.12.2000. Aggrieved by the same, employee filed W.P.No.16628 of 2011 before this Court and this Court vide its order dated 13.02.2012 allowed the writ petition and remanded the matter back to the Labour Court for enquiry. The Labour Court after enquiry passed award on 17.12.2013 directing the Corporation to reinstate the employee into service in the same capacity of 50% of back wages and other benefits. Consequently, the Corporation reinstated the petitioner into service on 07.04.2014.
28. However, with regard to granting of 50% back wages, the Corporation has filed W.P.No.2931 of 2015 before this Court LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 14 and this Court on 06.02.2015 granted interim stay to the extent of payment of back wages. In view of the order passed in W.P.No.2931 of 2015 and as per the directive of SLO/Hyd, the employee was appointed as cleaner/ shramik vide proceedings dated: 29.10.2015 with effect from 28.02.1998 with probationary right with all other usual allowances.
29. The Corporation issued proceedings dated 05.11.2015 that the employee is not fulfilling the criteria for regular appointment and therefore, the employee is not entitled to be appointed as regular time scale.
30. While the matter stood thus, the Corporation issued show cause notice dated 25.05.2017 as to why the employee services should not be discontinued basing on the letter 29.09.2016 issued by the Head Mistress ZPHS, Garrepally Sultanabad, wherein his date of birth is mentioned as 05.01.1955. According to the Corporation, the employee attained the age of superannuation, i.e. 58 years as on 05.01.2013 even prior to passing of award by the Labour Court dated 17.12.2013. The employee submitted his explanation on 03.06.2017, however, LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 15 the Corporation issued impugned proceedings dated 19.06.2017 disengaging him from services.
31. The employee filed W.P.No.23878 of 2017 challenging the proceedings dated 19.06.2017 before this Court and this Court vide its order dated 20.07.2017 suspended the impugned proceedings passed by the Corporation. The Corporation has preferred writ appeal vide W.A.No.1958 of 2017 and the Hon'ble Division Bench vide orders dated: 21.11.2019 suspended the order passed by the learned Single Judge. Subsequently, on 22.01.2020 said writ appeal was disposed of directing the learned Single Judge of this Court to decide the main writ petition within a period of three months.
32. The sum and substance of contentions raised by the employee are that at the time of joining in the Corporation on 01.01.1989, no certificate in proof of age was insisted by the Corporation and he his date of birth as 15.12.1965; that he mentioned his age 32 at the time of filing ID 145/1997 before Labour Court; later, at the time of reinstated of employee, the Corporation subjected the employee to medical examination in the year 2014 and the Medical Officer, Corporation Dispensary LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 16 vide certificate dated 10.04.2014 determined the age of the employee as 50 years, which is an authentic proof to show that he was born in the year 1965. It is further case of employee that the vigilance enquiry was conducted behind his back only to overcome the order passed by the Labour Court in I.D.No.145 of 1997 and also orders passed by this Court in W.P.No.39381 of 2015; that without considering the explanation given by the employee to the show cause notice dated 19.06.2017 passed impugned termination order on 19.06.2017 contrary to the procedure contemplated under RTC Service Regulations and merely on the basis of letter issued by the head Mistress, ZPHS, Sultanabad.
33. The sum and substance of the Corporation is that at the time of appoint the employee did not produce any certificate evidencing the date of birth and therefore, he was subject to medical examination and determined that the employee was born in the year 1965; subsequently, vigilance enquiry was conducted and as per the school records, where the employee studied, his age was recorded as 05.01.1955; as per the Corporation rules, superannuation of employee is 58 years and LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 17 thus employee attained age of superannuation on 05.01.2013, even prior to passing of award by the Labour Court on 17.12.2013 and thus, the services of employee were rightly disengaged; that when school certificate is available, the medical certificate issued by the Medical Officer, Corporation Dispensary cannot be relied upon; that disengagement of employee on attaining the age of superannuation cannot be treated as disciplinary action and no interference is required.
34. It is relevant to note that services of employee were terminated on 19.06.2017 basing on school certificate, as per which, employee attained superannuation on 05.01.2013. The Corporation sought explanation from the employee and passed impugned proceedings terminating services. Admittedly, no enquiry was conducted before coming to the conclusion and fixing the age of the petitioner as 05.01.1955 on the basis school certificate. Admittedly, at the time of joining service, as no document was produced in proof of age of the employee, he declared his as 15.12.1965 and the same was not objected by the Corporation. At the time of reinstatement in the year 2014, the employee was subjected to medical examination by the LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 18 respondent-Corporation and the Medical Officer of respondent- Corporation issued certificate dated 10.04.2014 determining the age of employee as 50 years, which correspondence to date of birth of employee as 1965. Consequently, the age of the employee was recorded in his service register and was given employee code.
35. In considered opinion of this Court, having subjected the employee to medical examination and having accepted the age of employee basing on medical examination and having issued employee code, it is not open to respondent-Corporation to reopen the issue of age of the employee and undertake vigilance enquiry on that aspect. It is relevant to note that medical certificate issued by the Medical Officer of the respondent- Corporation cannot be brushed aside as the same was issued after due medical examination of the employee by its medical officer. It is also relevant to note that Identity Card issued by Election Commission of India, Aadhaar Card and Household Card (Ration Card) also reflect the date of birth of the employee as 1965. Therefore, the Corporation committed grave error in relying on letter issued by the school ignoring the other LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 19 documents i.e., election card, aadhaar card, ration card and medical certificate issued by its own medical officer determining the age of the employee as 1965. In the light of above, in considered opinion this Court, the Corporation grossly erred in fixing the date of birth of the employee as 1955 only on the basis of letter issued by Headmistress of school.
36. Before taking drastic step of termination of services of employee based on school certificate, the Corporation should have undertaken detailed enquiry and reasonable opportunity also ought to have been given to employee to defend himself. In the present case, admittedly, no enquiry was conducted, which is clear violation of the principles of natural justice and also RTC Service Regulations. The vigilance report said to have given basing on the enquiry has not been placed on record by Corporation. Therefore, the contention of the Corporation that disengagement of the petitioner on attaining the age of superannuation cannot be treated as disciplinary action and that no enquiry is required, cannot be countenanced as the same is contrary to the principles of natural justice and LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 20 therefore, the impugned proceedings dated 19.06.2017 are unsustainable and hence, liable to be set aside. W.P.No.2931 of 2015:
37. In the light of above discussion, in considered opinion of this Court, the Corporation failed to make out any case to interfere with the award dated 17.12.2013 passed by the Labour Court and therefore, this Writ Petition is dismissed. W.P.No.39381 of 2015:
38. The show-cause notice, dated 05.11.2015 calumniated in issuance of termination proceedings dated 19.06.2017, therefore, challenge to notice dated 05.11.2015 has become infructuous. Insofar as payment of full back-wages is concerned, in considered opinion of this Court, the Labour Court had rightly granted only 50% back-wages while ordering reinstatement of petitioner. The petitioner failed to make out a case for granting full back-wages and therefore, this Court is not inclined to interfere with the award passed by the Labour Court granting 50% back-wages.
LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017 21 WP No.23878 of 2017:
39. This Court already held that it is not open to Corporation to reopen the issue of age once employee was subjected to medical examination and the same was accepted by the employer and the employee code was issued. Further, this Court also held that termination proceedings dated 19.06.2017 are contrary, erroneous and same were issued without any disciplinary proceedings and without affording opportunity to the employee and thus, same is contrary to the principles of natural justice and service regulations.
40. It is pertinent to note that this Court, vide interim order dated 20.07.2017, in W.P.M.P. No.29545 of 2017 suspended the operation of impugned notice dated 19.06.2017 and further direction to continue the employee in service by observing that the impugned order is not preceded by any disciplinary enquiry. The respondent-Corporation did not comply with the said order.
41. In the light of above facts, circumstances and discussion, petitioner is entitled to full back-wages from 19.06.2017 till the date of superannuation taking into consideration the date of birth of the petitioner as 15.12.1965.
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42. In the result, (i) W.P.No.2931 of 2015 filed by the Corporation is dismissed; (ii) W.P.No.39381 of 2015 is dismissed; (iii) W.P.No.23878 of 2017 filed by the employee is allowed. The respondent-Corporation is directed to effect all service benefits, continuity of service of the petitioner by taking the date of birth as 15.12.1965 till the date of superannuation and pass appropriate orders within a period of eight weeks from the date of receipt of copy of this order. There shall be no order as to costs.
Pending miscellaneous applications if any shall stand closed.
____________________________________ LAXMI NARAYANA ALISHETTY, J Date: 05.02.2024 Dua/kkm