U. Appa Rao Removed Driver vs The Managing Director,
2022 Latest Caselaw 4629 AP

           HON'BLE DR. JUSTICE K. MANMADHA RAO

               WRIT PETITION No.38945 of 2014
ORDER :

This petition is filed under Article 226 of the Constitution

of India for the following relief:-

"to issue a Writ Order or Direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in not reinstate the petitioner into service as Driver of the 3rd respondent depot basing on the Order dated 17.09.2012 in C.C.No.102/2008 passed by the Honble Chief Metropolitan Magistrate, Visakhapatnam, is illegal, arbitrary, unconstitutional and against the principles of natural justice and consequently direct the respondents to reinstate the petitioner into service Driver in the 3rd respondent Depot with all consequential benefits by setting aside the removal order dated 20.06.2008 vide proceedings No.P2/2/01/2008/MDP of the 3rd respondent and to pass such other order or orders......."

2. The case of the petitioner is that he was joined as

driver vide Employee No.750554 in 3rd respondent Corporation.

On 08.01.2008, while the petitioner operating the bus bearing

No.AP-10-Z-2823 on Route No.52Z (Sagar Nagar to RK Beach),

at Hanumanthawaka Junction, an accident was occurred at

about 8.50 hrs., the conductor of the bus Mr L.T. Rao was fell

down and succumbed injuries and died. As a result of which,

the 3rd respondent issued suspension proceedings to the

petitioner vide proceedings No.P2/2/(01)/2008/MDP, dated

22.1.2008. Thereafter, the 3rd respondent ordered enquiry into

the incident and issued a show cause notice of removable to

the petitioner. Subsequently, the petitioner submitted his

explanation dated 09.06.2008 before the 3rd respondent.

Without considering the explanation of the petitioner, the 3rd

respondent issued removal proceedings No.P2/2/(01)/

2008/MDP, dated 20.06.2008. Aggrieved by the same, the

petitioner filed an appeal before the Deputy Chief Traffic

Manager, Visakhapatnam (Urban) and the same was rejected

on 23.10.2008. Thereafter, the petitioner preferred a revision

before the 2nd respondent but the same has also been rejected

vide order dated 31.08.2009.

While the things stood thus, the petitioner made a mercy

petition before the Executive Director, APSRTC, VZM Zone

seeking to reinstate him into service by setting aside the orders

of the 2nd and 3rd respondents. But the same was also rejected

by the Executive Director stating that as a time barred as per

the Circular No.PD-43/1986, dated 16.4.1986. it is also stated

that the Chief Metropolitan Magistrate, Visakhapatnam has

acquitted the petitioner that he was not guilty vide order dated

17.09.2012 in C.C.No.102 of 2008. The petitioner filed a

representation along with the order of the Court below to the

respondent authorities stating that he was innocent driver, he

do not have committed any mistake, considering the above

order, he may be reinstated into service. But the respondent

authority has not considered the same. Hence, the present

writ petition.

3. Counter-affidavit is filed by the respondents denying

all the material averments made in the petition and contended

that the petitioner was removed from service on 19.06.2008 in

fatal accident case and the appeals/revision and mercy petition

filed were rejected and the petitioner has approached this

Court in the year 2014 after a lapse of four years from the date

of dismissal of his mercy petition. It is further stated that

when this case is not considered by the appellate/review

authorities, the petitioner being ex-employees may file an

Industrial Dispute before the appropriate Court. Without

availing the alternative remedy of approaching the Industrial

Tribunal the petitioner filed the present writ petition which is

not maintainable. Hence, prayed to dismiss the writ petition.

4. Heard Mr. Karri Suryanarayana, learned counsel

appearing for the petitioner and Mr. Solomon Raju.M, learned

Standing Counsel for APSRTC appearing for the respondents.

5. On hearing, learned counsel for the petitioner has

relied upon a decision of Hon'ble Supreme Court reported in

K.A.Gani vs. APSRTC, rep. by its Managing Director and

others1, wherein it was held that "once he was acquitted of

criminal charge, APSRTC cannot treat the charge as a grave

offence warranting removal from service. Similarly situated

contract drivers were reinstated in service as fresh driver by

APSRTC. In the circumstances of the case, writ petition

disposed of directing APSRTC to reengage petitioner in service

as a contract driver and extent to him the benefit of continuity of

service only for the purpose of regularization in service. He

would, however, not be entitled to any monetary benefits."

2013(4)ALT 121(S.B)

6. In another case reported in Capt.M.Paul Anthony

Versus Bharat Gold Mines Ltd., and another2, wherein it was

held as follows:

"In the meantime, the appellant filed Writ Petition No. 10842 of 1985 in the Karnataka High Court for a direction to restrain the respondents from proceeding with the disciplinary inquiry till the conclusion of the criminal case as the appellant's defence was likely to be prejudiced. This Writ Petition was disposed of by the High Court on 19.8.1985 and a direction was issued to the respondents to consider and dispose of the appellant's appeal filed against the order of suspension but liberty was given to the respondents to defer the disciplinary proceedings if it was found expedient so to do. The respondents did not defer the departmental proceedings and continued the proceedings which the appellant could not attend on account of his ill-health and financial difficulties which compelled him to shift to his home-town in Kerala. The respondents were informed by a number of letters supported by medical certificates about his illness with a request for staying the departmental proceedings and await the result of the criminal case. But the Inquiry Officer rejected the request and recorded his findings on 10.5.1986 holding the appellant guilty. These findings were accepted by the Disciplinary Authority and by order dated 7th June 1986, the appellant was dismissed from service.

On 3rd of February, 1987, judgment in the criminal case was pronounced and the appellant was acquitted with the categorical findings that the prosecution had failed to establish its case. This judgment was communicated by the appellant to the respondents on 12.2.1987 with a request that he may be reinstated, but respondents, by their letter dated 3.3.1987, rejected the request on the ground that the appellant had already been dismissed from service on the completion of the departmental inquiry which was conducted independently of the criminal case and, therefore, the judgment passed by the Magistrate was of no consequence.

The order of dismissal passed by the respondents was challenged in a departmental appeal which was rejected by the Appellate Authority on 22.7.1987.

(1999) 3 Supreme Court Cases 679

It was, at this stage, that the appellant approached the High Court through a Writ Petition under Article 226 of the Constitution challenging the validity of the order of dismissal on various grounds, including that the departmental proceedings based on the same set of facts on which the criminal case was launched against him, ought to have been stayed awaiting the result of the criminal case. It was also pointed out that since the appellant had already been acquitted and the prosecution case against the appellant based on the "raid and recovery" which also constituted the basis of the departmental proceedings, had not been found to be true, he was entitled to be reinstated in service.

The Writ Petition was allowed by a Single Judge of the High Court on 26.9.1995 with the finding that the departmental proceedings and the criminal case being based on the same set of facts, departmental proceedings should have been stayed till the result of the criminal case and since in the criminal case the appellant had already been acquitted and the prosecution case was not found established, the respondents could not legally refuse reinstatement or the consequent back-wages to the appellant. While directing reinstatement of the appellant, the High Court gave liberty to respondents to initiate fresh proceedings against the appellant after perusing the judgment passed in the criminal case."

7. The facts of the above cases are not at all

applicable to the present facts of the case.

8. In a case of Union of India and others versus P.

Gunasekaran3, wherein the Hon'ble Supreme Court, held

that :

Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii). go into the adequacy of the evidence;

(iv). go into the reliability of the evidence;

(2015) 2 Supreme Court Cases 610

(v). interfere, if there be some legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience.

In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao[1], many of the above principles have been discussed and it has been concluded thus:

"7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."

In State of Andhra Pradesh and others v. Chitra Venkata Rao[2], the principles have been further discussed at paragraph-21 to 24, which read as follows:

"21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao. First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that[pic]an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226."

9. Having regard to the facts and circumstances of the

case and as stated by learned Standing Counsel appearing for

the respondents that the petitioner without there being availed

alternative remedy to approach before the Industrial Tribunal

cannot straightaway come to this Court by way of filing this

writ petition under Article 226 of Constitution of India, this

Court prima facie finds no merit in the present writ petition

and the same is liable to be dismissed.

10. Accordingly, the Writ Petition is dismissed. There

shall be no order as to costs.

As a sequel, interlocutory applications, if any pending,

shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date :     26-07-2022
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      HON'BLE DR. JUSTICE K. MANMADHA RAO




         WRIT PETITION No.38945 of 2014




               Date :   26 .07.2022




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