Telangana High Court
N. Shiva Kumar vs The Depot Manager,Tsrtc And 3 Others on 16 February, 2024
THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.12528 OF 2022
O R D E R:
This Writ Petition is filed seeking the following relief:
"...to issue Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring impugned Notification issued by the 1st respondent vide Notification No.E1/1(60)/2019-MP, dated 03/07/2019 in removing the petitioner from service as void, illegal, arbitrary, contrary to the principles of natural justice and unconstitutional contrary to Art.311 of the Constitution of India and set aside the same with all consequential benefits and pass..."
2. Heard Sri S.Jagadish, learned counsel for the petitioner, Sri Thoom Srinivas, learned Standing Counsel for TSRTC appearing on behalf of respondent Nos.1 to 3, and learned Government Pleader for Labour appearing on behalf of respondent No.4.
3. Learned counsel for the petitioner submits that the petitioner was appointed as Conductor in the respondent - Corporation in the year, 2010, worked as such with Staff No.219234 and after formation of Telangana State, the petitioner continued in TSRTC. While things stood thus, the petitioner has availed leave from 22.06.2017 to 12.07.2017 as 2 PK,J wp_12528_2022 he underwent treatment in Gandhi General Hospital, Hyderabad, and to that effect the petitioner has also obtained sick certificate vide Certificate No.TNK2017009964, dated 29.07.2017, from Senior Medical Officer, APSRTC Hospital, Tarnaka, Hyderabad, and fitness certificate from Gandhi General Hospital, Hyderabad, after his treatment i.e., on 26.07.2017. While so, respondent No.1 issued charge sheet against the petitioner on 21.07.2017 alleging that the petitioner was unauthorizedly absent for duty from 22.06.2017 to 12.07.2017 without any intimation or prior sanction of leave and he has maintained irregular attendance from 01.01.2017 to 16.06.2017 and thereby committed misconduct, for which, the petitioner has submitted his explanation on 11.08.2017 denying the charges levelled against him. Without considering the explanation as well as the medical reports submitted by the petitioner, respondent No.1 has appointed an Enquiry Officer. The Enquiry Officer, after conducting an enquiry, has submitted his report on 24.11.2017 holding that the charges framed against the petitioner are proved, however, a copy of the said enquiry report was not furnished to the petitioner.
3 PK,J wp_12528_2022 3.1 It is further submitted that, basing on the enquiry report, the respondents have issued show cause notice, dated 19.01.2018, seeking explanation as to why the proposed punishment of removal from service should not be imposed on him, to which, the petitioner has submitted his explanation, dated 16.03.2018. Further, again respondent No.1 has issued proceedings No.E1/1(60)/2019-MP, dated 03.07.2019, calling upon the petitioner to show cause as to why the proposed punishment of removal from service shall not be imposed on him, within a period of seven days, but without waiting for the said period, on the same day, respondent No.1 has issued the Notification No.E1/1(60)/2019-MP, dated 03.07.2019, removing the petitioner from the services of the Corporation with immediate effect i.e.03.07.2019 in violation of principles of natural justice. Learned counsel has further submitted that the respondents have failed to conduct enquiry as per the procedure contemplated under Regulations governing the Corporation and though the petitioner has submitted his explanation stating that he suffered fever and jaundice and his absence was not wilful, without considering the same, the respondents have imposed a major punishment of removal on 4 PK,J wp_12528_2022 the petitioner and the same is disproportionate to the alleged charge. Learned counsel has further submitted that due to demise of his father and wife and due to Covid-19 pandemic situation, the petitioner could not approach this Court immediately. Therefore, it is prayed to set aside the impugned proceedings.
3.2 In support of his contentions, learned counsel for the petitioner has relied on the judgment of the Hon'ble Apex Court in Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (Uttar Pradesh) 1, the judgment of the High Court of Allahabad in Kumar Bhupendra Singh v. State of Uttar Pradesh 2 and the judgment passed by this Court in B.Venkanna v. The Commandant, 217 Battalion, Central Reserve Police Force, Chittor 3.
4. Per contra, learned Standing Counsel for the respondents has contended that initially two charges were framed against the petitioner and upon considering the explanation submitted the petitioner, the 2nd charge was 'dropped'. Thereafter, the enquiry was conducted in respect of Charge No.1 and the same 1 1987 (4) SCC 525 2 LAWS(ALL)-2024-1-13 3 W.P.No.19316 of 2018, dated 25.11.2022 5 PK,J wp_12528_2022 was proved in the enquiry. Hence, show cause notice vide No.E1/1(60)/2017-MP, dated 19.01.2018, was issued against the petitioner, for which, he submitted his explanation, dated 16.03.2018. Basing on the enquiry report, the punishment of removal was imposed on the petitioner on 03.07.2019. Therefore, the action of respondents in imposing major punishment of removal from service against the petitioner is justified. It is further submitted that the petitioner has approached this Court with a delay of three years and also not exhausted the remedy of filing the statutory appeal. Therefore, learned Standing Counsel prayed this Court to dismiss the Writ Petition.
5. This Court has taken note of the submissions made by the learned counsel for the respective parties.
6. A perusal of record discloses that the respondents have issued charge sheet, dated 21.07.2017, with the following charges:
1) "You have absented for duty unauthorisedly from 22.06.2017 to till date (12.07.2017) and without any intimation or prior sanction of leave caused dislocation of the services of the depot. Inconvenience to the travelling public and loss of revenue to the Corporation, which 6 PK,J wp_12528_2022 constitutes to misconduct in terms of Reg.28 (xxvii) of TSRTC Employees (Conduct) Regulations, 1963.
2) You have maintained irregular attendance during period from 01.01.2017 to 16.06.2017. You were not available for 32 days (Leave for 11 days, Sick for 13 days, Absent for 08 days) as a result of which operation of bus services have been dislocated and caused inconvenience to the travelling public besides loss of legitimate revenues to the Corporation, which constitutes to mis-conduct in terms of Reg.No.28 (xxvii) of TSRTC Employees (Conduct) Reg.1963."
Thereafter, on considering the explanation of the petitioner, dated 11.08.2017, charge No.2 was dropped and enquiry was conducted in respect of charge No.1, which culminated into removal of the petitioner from service.
7. Learned Standing Counsel has strenuously opposed the Writ Petition on the ground that without availing the alternative remedy of appeal, the petitioner has straightaway approached this Court and therefore the writ petition is liable to be dismissed. However, the said contention cannot stand to the legal scrutiny in view of the law laid down by the Hon'ble Supreme Court in Kuntesh Gupta's case (referred supra) wherein it has been held as under:
"The next question that falls for our consideration is whether the High Court was justified in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy. It is true that there was an alternative remedy for challenging the 7 PK,J wp_12528_2022 impugned order by referring the question to the Chancellor under Section 68 of the U.P. State Universities Act. It is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition."
7.1 Similarly, in Bhupendra Singh's case (2 Supra), the High Court of Allahabad has held as follows:
"2. At this stage, it is relevant to note that during the arguments in the case, the Standing Counsel had opposed the writ petition on grounds of availability of alternative remedy of appeal to the petitioner under Rule 11 of the Rules, 1999. However, as the petition was pending in this Court since February, 2021 and affidavits in the case had been exchanged, therefore, in view of the judgment of the Supreme Court in Dr. (Smt.) Kuntesh Gupta vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Ors., the objections of the Standing Counsel regarding maintainability of the writ petition on grounds of availability of alternative remedy to the petitioner were rejected and the petition was heard on merits."
7.2 In view of the above settled proposition of law, the ground urged by the learned Standing Counsel in this regard i.e. not availing the alternative remedy, cannot be sustained. Hence, rejected.
8. Coming to the merits of the case, admittedly, the petitioner has submitted his explanation on 16.03.2018 to the show cause notice dated 19.01.2018 stating that he could not attend to duty due to fever and jaundice and to that effect he has also filed medical certificate, dated 29.07.2017, issued by the Gandhi General Hospital, Hyderabad. On submission of said explanation by the petitioner, the respondents have 8 PK,J wp_12528_2022 exonerated the petitioner from 2nd charge and conducted the enquiry in respect of the 1st charge wherein it was alleged that the petitioner was absented from 22.06.2017 to 12.07.2017 without any information or prior sanction of leave.
9. In this context, it is relevant to note that in B.Venkanna's case (referred supra), this Court has held as follows:
"15. The judgment of the Apex Court reported in (2012) 3 SCC 178 between Krushnakant B.Parmar v Union of India and another. Paras 16, 19 and 25 reads as under:
"16. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.
25. In the result, the appeal is allowed. The impugned orders of dismissal passed by disciplinary authority, affirmed by the Appellate Authority; Central Administrative Tribunal and High Court are set aside. The appellant stands reinstated. Taking into consideration the fact that the Charged Officer has suffered a lot since the proceeding was drawn in 1996 for absence from duty for a certain period, we are not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in view the fact that the appellant has not worked for a long time we direct that the appellant be paid 50% of the back wages but there shall be no order as to costs.
16. The judgment of the Apex Court reported in 2014(9) SCJ page 91 between Raghubir Singh v General Manager, Haryana Roadways, Hissar. Para 35 reads as under:
9 PK,J wp_12528_2022 "35. Having regard to the facts and circumstances of this case, we are of the view that it is important to discuss the Rule of the 'Doctrine of Proportionality' in ensuring preservation of the rights of the workman. The principle of 'Doctrine of Proportionality' is a well recognized one to ensure that the action of the employer against employees/workmen does not impinge their fundamental and statutory rights. The above said important doctrine has to be followed by the employer/employers at the time of taking disciplinary action against their employees/ workmen to satisfy the principles of natural justice and safeguard the rights of employees/workmen."
10. In the instant case, the petitioner has specifically stated in his explanation that he was absent from duty due to fever and jaundice, which was beyond his control, and in support of his sickness, he also filed medical certificate, dated 29.07.2017, issued by the Gandhi General Hospital, Hyderabad. This Court is of the view that imposition of punishment of removal from service is disproportionate.
11. For the afore-mentioned reasons, this Writ Petition is allowed setting aside the impugned Notification No.E1/1(60)/ 2019-MP, dated 03.07.2019, issued against the petitioner and the matter is remanded back to respondent No.1 with a direction to impose lesser punishment to the petitioner other than removal/termination/dismissal.
10 PK,J wp_12528_2022 Miscellaneous petitions pending, if any, shall stands closed. There shall be no order as to costs.
______________________ PULLA KARTHIK, J Date : 16-02-2024 TMK