Telangana High Court

P.Kishan vs Andhra Pradesh State Road ... on 1 November, 2021

Bench: P.Madhavi Devi

     THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


                 WRIT PETITION NO.3914 OF 2012


                               ORDER

This Writ Petition was filed by the petitioner seeking a Writ of

Mandamus declaring the proceedings No.SB/136(1)/2001-SO-HZ of

the 3rd respondent dt.08.11.2001 as confirmed by the appellate

authority, the 2nd respondent, vide proceedings No.SD1/19(30)/2004-

PO.II dt.01.03.2005 and as confirmed by the proceedings

No.P1/19(2)2009-PO.IV of the 1st respondent dt.29.10.2008 imposing

the punishment of postponement of annual increment of the writ

petiotioner for a period of two years with cumulative effect, as

contrary to the relevant Regulations and law and as discriminatory and

in violation of Articles 14 and 21 of the Constitution of India.

2. Brief facts leading to filing of this Writ Petition are that the

petitioner was selected to the post of Security Guard by a duly

constituted Selection Committee and was initially appointed on

15.06.1999 at Rajahmundry, East Godavari Region. He was

subsequently transferred to MGBS in the year 2001, JBS in the year

2002, Hakimpet in the year 2005 and Zonal Workshop, Uppal from

April, 2011. It is stated by the petitioner in the affidavit filed in

support of the Writ Petition that, while working at MGBS, Hyderabad,

he had applied for leave from 10.06.2001 to 14.06.2001 which was

sanctioned and thereafter, he had requested the Chief Security

Inspector, MGBS for extension of leave from 15.06.2001 to

03.07.2001. It is stated that on 15.06.2001, the petitioner was arrested

by Shadnagar Police in connection with Crime No.338 of 2000 and

the family members of the petitioner informed this fact to the

Controlling Officer on 15.06.2021 itself and subsequently, the Circle

Inspector of Police, Shadnagar, by his letter dated 16.06.2001, also

gave intimation of arrest of the petitioner to the 4th respondent who

received it on 18.06.2001. It is stated by the petitioner that though he

sent an application for extension of leave to the Chief Security

Inspector, MGBS on 15.06.2001 itself and his family members

informed about his arrest in a false case to the 4th respondent, also on

15.06.2001, the 4th respondent, without considering the same, issued a

charge sheet dated 20.06.2001 with the following charges:

i) "For having absented for duties unauthorisedly without prior sanction or intimation from 15.06.2001 to till date, which constitutes misconduct as per Regulation 28 (xxvii) of APSRTC Employees' (Conduct) Regulations, 1963.

ii) For having involved in criminal case in Crime No.338/2000 U/Sec 302 & 201 IPC of Shadnagar PS., Mahabubnagar District, which constitutes misconduct as per Regulation 28 (xv) of APSRTC Employees' (Conduct) Regulations, 1963.

iii) For having failed to intimate the fact of your arrest by Shadnagar Police and judicial remand, which constitutes misconduct as per Regulation 28 (xxxii) of APSRTC Employees' (Conduct) Regulations, 1963."

3. The petitioner gave an explanation stating the above facts

before the enquiry officer. But the enquiry officer held that decision as

regards Charge No.2 can be taken only after the decision is taken by

the Criminal Court. As regards Charges No.1 and 3, he held them to

be proved. Taking the same into considerastion, the 3rd respondent

imposed punishment of postponement of his annual increment when it

next fell due for a period of two years with cumulative effect. He also

ordered the entire suspension period to be treated as 'not on duty' for

all purposes. It is submitted by the petitioner that subsequently, he

was acquitted of the criminal charges vide judgment dated 01.07.2004

in Sessions Case No.388 of 2001 and hence requested the 2nd

respondent to set aside the punishment imposed by the 3rd respondent.

However, the 2nd respondent rejected the Appeal vide proceedings

dated 01.03.2005 and thereafter, the petitioner filed a Review Petition

which was also rejected by the 1st respondent vide orders dated

29.10.2008 by holding that no fresh points were put forth by the

petitioner. Against this order of the 1st respondent, the Writ Petitioner

filed the present Writ Petition and submitted that the respondents have

arbitrarily imposed the punishment of postponement of his annual

increment for a period of two years with cumulative effect, which is

grossly disproportionate to the alleged misconduct. It is also submitted

that the respondents have not taken into consideration that charge

No.1 and Charge No.3 are consequential to Charge No.2 and since

Charge No.2 has ended in acquittal of the petitioner, the petitioner

should be discharged of Charges No.1 and 3 as well. The petitioner

further submitted that the 1st respondent has held the suspension

period to be treated as 'not on duty' for all purposes though such

period has to be treated as 'not on duty' only for the purposes of

increments and leave. Such a direction of the 1st respondent, according

to the writ petitioner, is contrary to the Guidelines and the same has to

be restricted only for the purpose of leave and increments. The

petitioner therefore sought relief under Article 226 of the Constitution

of India.

4. When the case was called for hearing, the learned counsel for

the petitioner reiterated the submissions made in the affidavit filed in

support of the Writ Petition. He argued that Charges No.1 and 3 in the

charge sheet are consequential to Charge No.2 and since the petitioner

has been discharged / acquitted of the charges in the criminal case, the

petitioner should be discharged from Charges No.1 and 3 also. As

regards the period of suspension being treated as 'not on duty' for all

purposes, he submitted that it should be consisdered as 'not on duty'

only for the purposes of increment and leave. In support of this

contention, he placed reliance upon the APSRTC Circular

No.PD.14/1977-78 dated 05.05.1977 and also Circular

No.PD.21/1977-78 dated 24.05.1977 and Regulation 21 of the

APSRTC Employees' (Classification, Control and Appeal)

Regulations, 1967.

5. Sri C. Sunil Kumar Reddy, learned Standing Counsel for

APSRTC argued in support of the impugned proceedings of the 1st

respsondent.

6. Having regard to the rival contentions and the material placed

on record, this Court finds that the petitioner has been discharged of

Charge No.2 on his acquittal from the criminal charges by the

Sessions Court. Therefore, what remains are Charges No.1 and 3.

7. As regards Charge No.1, i.e., absence without leave, the

petitioner was on sanctioned leave till 14.06.2001 and is stated to have

made an application for extension of leave from 15.06.2001 to

03.07.2001. Though such leave is admittedly not sanctioned, the

contention of the petitioner that he has sought extension of leave is not

denied by the respondents either in the enquiry proceedings or in the

order of punishment. The reason for not sanctioning of the leave

appears to be the arrest of the petitioner in connection with the

Criminal case registered against him. Being in police custody, it could

not have been possible for the petitioner to be present and therefore

his absence is not without reasonable cause. Therefore, this Court

holds that Charge No.1 is not sustainable.

8. As regards Charge No.3, it is the case of the petitioner that his

family members had informed the Controlling Officer about his arrest

in connection with the criminal case. The petitioner being in police

custody could not have personally informed the officials about his

arrest and it could only have been through either the family members

or the police that the respondents have come to know of the arrest of

the petitioner. In the proceedings of the 3rd respondent dated

08.11.2001, there is a reference to CSI-NGBS Report dated

16.06.2001. A copy of the said report is not filed along with the Writ

Petition. Learned counsel for the petitioner submits that it is a part of

the proceedings and the petitioner was not provided with the same. In

view of the fact that the petitioner was in police custody and on the

very next day, the officers have been informed about the arrest of the

petitioner, this Court is inclined to hold that it was beyond the control

of the petitioner to inform the authorities personally and therefore,

Charge No.3 is only partly proved. In view of the same, this Court is

inclined to reduce the punishment of stoppage of the petitioner's

annual increment for a period of two years with cumulative effect to

that of stoppage of his annual increment for one year without

cumulative effect.

9. As regards the prayer of the petitoner to treat the period of

suspension as spent on duty, this Court finds that Regulation No.21 of

APSRTC Employees (Classification, Control and Appeal)

Regulations, 1967 provides for pay, allowances and treatment of

service on reinstatement. For the sake of ready reference and clarity,

the same is reproduced hereunder:

"21. Pay, allowances and treatment of service on reinstatement:

(1) When an employee who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order as to-

(a) the pay and allowances which shall be paid to the employee for the period of his absence from duty; and

(b) Whether or not the said period shall be treated as period spent on duty.

(2) (a) Where such competent authority holds that the employee has been fully exonerated or, in the cse of suspension, that it was unjustifiable, the employee shall be granted the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be.

(b) In all other cases, the employee shall be granted such proportion of such pay and allowances as such competent authority may direct.

Provided that the payment of allowances under this clause shall be subject to all other conditions subject to which such allowances are admissible.

(c) In a case falling under sub-clause (a), the period of absence from duty shall for all purposes be treated as a period spent on duty.

(d) In a case falling under sub-clause (b) the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specificalloy direct that it shall be so treated for any spcific purposes, it will be open to the competent authoity to convert the period into one of leave due.

(3) ...................."

10. Thus, Clause (2)(d) of the APSRTC (CC&A) Regulations, 1967

provides that it will be open to the competent authority to convert the

suspension period into one of leave due. Sub-Clause (b) of Clause (2)

also provides that the competent authorioty shall grant such pay and

allowances as such competenant authority may deem fit. Thus,

competent authority has power to allow proportionate pay and

allowances as he deems fit.

11. Since this Court has already held that the petitioner is

discharged of Charge No.1 fully and Charge No.3 partly, it is directed

that the period of absence from duty or suspension period shall be

treated as 'not on duty' only for the purposes of increments and leave.