Telangana High Court
T. Divya, vs Telangana State Road Transport ... on 28 February, 2023
Bench: E.V. Venugopal
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
HONOURABLE SRI JUSTICE E.V.VENUGOPAL
WRIT PETITION No.11801 of 2017
&
WRIT PETITION No.10183 of 2018
Between:
WRIT PETITION No.11801 of 2017
T.Divya & Another
Petitioners
VERSUS
TSRTC, Rep. by its Managing Director
Bus Bhavan, Musherabad, Hyderabad
And Two Others.
Respondents
WRIT PETITION No.10183 of 2018
T.Prudhvi & Another
Petitioners
VERSUS
TSRTC, Rep. by its Managing Director
Bus Bhavan, Musherabad, Hyderabad
And Two Others.
Respondents
JUDGMENT PRONOUNCED ON: 28.02.2023
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
____________________
E.V.VENUGOPAL, J
* THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
+ WRIT PETITION No.11801 of 2017
&
WRIT PETITION No.10183 of 2018
% 28.02.2023
# Between:
WRIT PETITION No.11801 of 2017
T.Divya & Another
Petitioners
VERSUS
TSRTC, Rep. by its Managing Director
Bus Bhavan, Musherabad, Hyderabad
And Two Others.
Respondents
WRIT PETITION No.10183 of 2018
T.Prudhvi & Another
Petitioners
VERSUS
TSRTC, Rep. by its Managing Director
Bus Bhavan, Musherabad, Hyderabad
And Two Others.
Respondents
! Counsel for Petitioner : Sri V.Narasimha Goud
^ Counsel for the respondents : Sri Thoom Srinivas
<GIST:
> HEAD NOTE:
? Cases referred
1 1994 Supp (3) SCC 755
2 MANU/BH/2814/2018 dated 23.02.2018
HONOURABLE SRI JUSTICE E.V.VENUGOPAL
WRIT PETITION No.11801 of 2017
&
WRIT PETITION No.10183 of 2018
COMMON ORDER:
1 Heard Sri V.Narasimha Goud, learned counsel for the
petitioner and Sri Thoom Srinivas, learned standing counsel for the
respondents.
2 Since the point involved in both the writ petitions is
intertwined, these two writ petitions are being disposed of by this
common order.
3 W.P.No.11801 of 2017 is filed seeking to declare the
impugned order dated 16.04.2015 and also the order dated
14.10.2015 treating the removal period as not on duty and
deferring annual increment for a period of one year with
cumulative effect as arbitrary. A consequential direction was also
sought for granting all consequential benefits for the period from
the date of removal till the date of death i.e. 16.04.2015 to
23.09.2015 by treating him as on duty.
4 W.P.No.10183 of 2018 is filed to declare the proceeding
dated 04.11.2017 of the second respondent rejecting the case of
the petitioner for appointment on compassionate grounds as illegal
and arbitrary and consequently to direct the respondents to
provide employment to the petitioner on compassionate grounds.
5 The learned counsel for the petitioner submits that the
father of the petitioner by name T.Narsimulu was working in the
respondents' Corporation as Conductor on regular basis from
27.05.1998. While being so, he was removed from service by order
dated 16.04.2015 on the charge that he was absent for duties on
19.08.2014, 20.08.2014, 23.08.2014 to 25.08.2014, 03.09.2014,
06.09.2014 to 08.09.2014. Aggrieved by the said order dated
16.04.2015, Narsimulu preferred an appeal before the second
respondent which was said to have been considered but the details
were not available. While so, said Narsimulu died on 23.09.2015
leaving the petitioner and his sister as his legal heirs as the mother
of the petitioner had expired in the year 2010. The petitioner made
an application under Right to Information Act on 07.09.2016
before the Divisional Manager, Sanathnagar Division for the
proceedings dated 14.10.2015. The Divisional Manager issued
proceedings dated 01.10.2016 stating that no order copy dated
14.10.2015 is available. Thereupon, the petitioners filed
W.P.No.43441 of 2016 and during the course of proceedings in
that writ petition, the counsel for the respondents produced a copy
of the order said to have been passed by the second respondent
dated 14.10.2015, whereunder the punishment of removal imposed
on the father of the petitioner was modified to the extent that he
shall be reinstated into service but imposed the penalty of
deferment of the annual increment for a period of one year with
cumulative effect, he should pay fresh security deposit and
produce valid Conductor license. It was further directed that the
period from the date of removal to the date of performance of first
duty by him on reinstatement at the depot to which he is posted
shall be treated as discontinuity in service for all purposes.
6 The learned counsel for the petitioner further submitted that
in view of the above order dated 14.10.2015, W.P.No.43441 of 2016
was dismissed as withdrawn with liberty to file a fresh writ petition
questioning the order dated 14.10.2015 passed by the second
respondent and thereafter the present writ petition has been filed.
7 The learned counsel for the petitioner further submitted that
the father of the petitioner sustained injury due to which he was
constrained to be absent to duty and for the said injury he was
treated in RTC hospital at Tarnaka and from there he was referred
to NIMS hospital, Hyderabad. Thereafter he had undergone a
surgery and he was treated as inpatient from 19.03.2015 to
04.04.2015. Hence he was on leave even during the charged period
of nine days.
8 The learned counsel for the petitioner further submitted that
while passing the impugned order, the third respondent has taken
into consideration that the father of the petitioner was absent for
75 days during the year 2014 and that he was again absent even
after issuing the final show cause notice of removal from service.
But for the said periods, the third respondent has not issued any
charge sheet nor given any opportunity to explain the reasons as to
why his father could not attend the duty on those days. Hence,
the impugned order was in violation of principles of natural justice.
9 The predominant contention of the learned counsel for the
petitioner is that the third respondent ought to have granted the
continuity of service and other benefits for removal period instead
of treating it as not on duty. It is his further contention that the
period from 31.01.2015 to 07.05.2015 during which the father of
the petitioner was sick was considered for removal from service but
that period was not subject matter of charge memo. The charge
memo hardly comes to 9 days only and for which no employer
would impose the punishment of removal from service. The learned
counsel for the petitioner relied on a decision of the Hon'ble apex
Court in Union of India vs. Giriraj Sharma1 in support of his
contentions. He also relied on the judgment of a Division Bench of
the erstwhile High Court of Andhra Pradesh in W.A.No.1126 of
2009 dated 12.11.2009.
10 He further submitted that in view of the proceedings of the
second respondent dated 14.10.2015 ordering reinstatement of the
father of the petitioner into service, the petitioner in W.P.No.10183
of 2018 is entitled to employment on compassionate grounds.
1 1994 Supp (3) SCC 755
11 On the other hand, Sri Thoom Srinivas, the learned standing
counsel for the respondents, would submit that the father of the
petitioner was unauthorizedly absent to duty on 19.08.2014,
20.08.2014, 23.08.2014 to 25.08.2014, 03.09.2014, 06.09.2014 to
08.09.2014 without any intimation or prior sanction of leave,
resulting in dislocation of operations and loss of revenue to the
Corporation besides inconvenience to the travelling public. Hence a
charge was framed in that regard to which he submitted his
explanation. A departmental enquiry was conducted in accordance
with law but he did not submit any sick certificate for the above
period. Thereafter, the charge was held proved and hence he was
removed from service by order dated 16.04.2015. The appeal
preferred by the father of the petitioner was rejected by the
Divisional Manager by order dated 03.08.2015. The father of the
petitioner preferred a Review Petition dated 22.08.2015 before the
second respondent. The second respondent, by order dated
14.10.2015, keeping in view the past service rendered by the father
of the petitioner, took lenient view and ordered reinstatement but
by duly imposing the penalty of deferment of annual increment
cumulatively and that the period from the date of removal to the
date of performance of first duty by him on reinstatement at the
depot to which he is posted shall be treated as discontinuity in
service for all purposes.
12 The vehement contention of the learned standing counsel is
that since the father of the petitioner died during the pendency of
the review proceedings, and since the second respondent passed
the order without knowing the fact that the father of the petitioner
died during the pendency of the review proceedings, the order
dated 14.10.2015 of the second respondent could not be
implemented and the said proceedings are ineffective and abated.
In view of the same, reinstatement of the employee would not arise
since the proceedings are passed against a dead person. He
further submits that as the orders in the review petition could not
be implemented the order of removal passed by the third
respondent dated 16.04.2015 is subsisting.
13 The learned standing counsel further submitted that the
petitioner ought to have approached the Labour Court for redressal
of his grievance and since he has not availed such opportunity, the
writ petition is liable to be dismissed.
14 He further submitted that since the father of the petitioner
was removed from service, children of the removed employee are
not eligible for the compassionate employment in the respondent
Corporation. Hence the petitioner in W.P.No.10183 of 2018 is not
entitled to the relief sought for.
15 In Giriraj Sharma case (1 supra) relied upon by the learned
counsel for the petitioner, the Hon'ble Court at Para Nos.2 and 3
held as under:
2. Mr. Jain the learned Counsel for the appellant
Union of India contended that the interpretation placed
on Section 11(1) of the Central Reserve Police Force Act,
1949 (hereinafter called 'the Act') is not correct and it is
on account of this erroneous understanding of the
provision that the High Court quashed the order of
dismissal. In support of his contention he invited our
attention to a decision of the Rajasthan High Court
reported in AIR 1965 Raj 140. He also relied on certain
other decisions but it is sufficient to state that according
to him the learned Judges of the High Court had
committed an error in interpreting the said Sub-section.
In our opinion it is not necessary for us to construe Sub-
section (1) of Section 11 of the Act in the backdrop of the
facts of the present case. Assuming Mr. Jain is right, we
are of the opinion that so far as the present case is
concerned the allegation is in regard to the incumbent
having over-stayed the period of leave by 12 days. The
incumbent while admitting the fact that he had over-
stayed the period of leave had explained the
circumstances in which it was inevitable for him to
continue on leave as he was forced to do so on account of
unexpected circumstances. We are of the opinion that
the punishment of dismissal for over-staying the period
of 12 days in the said circumstances which have not
been contravened in the counter is harsh since the
circumstances show that it was not his intention to
willfully flout the order, but the circumstances force him
to do so. In that view of the matter the learned Counsel
for the respondent has fairly conceded that it was open
to the authorities to visit him with a minor penalty. If
they so desired, but a major penalty of dismissal from
service was not called for. We agree with this
submission.
3. In the result we see no merit in this appeal but we
would modify the order of the High Court by stating that
while we affirm the High Court's order quashing the
order of dismissal and directing reinstatement in service
with monetary benefits, it will be open to the department,
if it so desires, to visit the respondent petitioner with a
minor punishment. The appeal will stand disposed of
accordingly with no order as to costs. If the
reinstatement has not taken place thus far the
department should reinstate him latest within two weeks
from today.
16 In State of Bihar Vs. Shanti Kumari
{MANU/BH/2814/2018 dated 23.02.2018} the Patna High Court
held as follows:
In our opinion while there would be no contest with
the legal position in case where the death of a delinquent
takes place in the midst of the disciplinary proceeding
which would abate the disciplinary proceeding, but if the
death takes place after the enquiry is concluded in the
disciplinary proceeding and the matter is posted for
orders or at the appellate stage, then the situation is
different and there cannot be an abatement of
disciplinary proceedings which has already attained
finality. In such cases the right to sue survives and the
legal heirs who wish to contest the finding of guilt in the
punishment order passed by the Disciplinary Authority
can pursue the appeal if already filed by the deceased
delinquent or file appeal, in case he has deceased after
passing of the order of penalty. In case while pursuing
the appellate remedy the legal heirs are able to show that
the matter would require reconsideration at the original
stage of the disciplinary authority by remand, then the
proceedings can be held abated, otherwise not.
The legal position as it stands is, that if a matter
requires a remand to the Disciplinary Authority for
proceeding afresh in the matter but the delinquent has
deceased in the meanwhile, the disciplinary proceeding
would abate as a whole. But if there is no procedural
default by the Disciplinary Authority, the delinquent has
been given opportunity to examine the evidence, both
oral and documentary; and the order of penalty is to be
tested on its merits by the Appellate Authority, then the
death of the delinquent would not lead to abatement
because the disciplinary proceeding has attained finality.
The provisions of Order 22 rule 1 of the Code of Civil
Procedure read with Rule 11 thereof as well as section
394 of the Code of Criminal Procedure, are self-eloquent
of the right to sue, subsisting in the legal heirs who are
fully entitled to pursue the cause at the appellate stage
for testing the legality and validity of the order passed by
the original authority i.e. the Disciplinary Authority, in
the present context."
17 Reverting to the facts of the case on hand, the father of the
petitioner died during the pendency of the review proceedings.
Since the factum of death of the father of the petitioner was not
brought to the notice of the reviewing authority i.e. second
respondent herein, the second respondent passed the order dated
14.10.2015 as extracted hereinabove.
18 The facts of the case are identical to the facts and
circumstances stated in Shanti Kumari case (supra). The
proceedings before the disciplinary authority were culminated.
Aggrieved by the same, the father of the petitioner preferred review
before the appellate authority. Therefore, the contention of the
learned standing counsel that the proceedings are abated would
stand negated and the order of the second respondent would deem
to be in force and issue of abatement does not arise and that the
petitioners herein who are the legal representatives of the deceased
T.Narsimulu are certainly entitled to pursue the proceedings.
19 The order of the disciplinary authority was modified to the
extent that he shall be reinstated into service but imposed the
penalty of deferment of the annual increment for a period of one
year with cumulative effect; he should pay fresh security deposit
and produce valid Conductor license. It was further directed that
the period from the date of removal to the date of performance of
first duty by him on reinstatement at the depot to which he is
posted shall be treated as discontinuity in service for all purposes.
20 The contention of the learned counsel for the petitioner is
that while passing the impugned order, the third respondent has
taken into consideration that the father of the petitioner was
absent for 75 days during the year 2014 and that he was again
absent even after issuing the final show cause notice of removal
from service. But for the said periods, the third respondent has not
issued any charge sheet nor given any opportunity to explain the
reasons as to why his father could not attend the duty on those
days as was observed in Giriraj Sharma case (1 supra). Hence,
the impugned order was in violation of principles of natural justice
and against the settled principles of law.
21 Article 311 (2) of the Constitution of India says that no such
person shall be dismissed or removed or reduced in rank except
after an inquiry in which he has been informed of the charges
against him and given a reasonable opportunity of being heard in
respect of those charges. Provided that where it is proposed after
such inquiry, to impose upon him any such penalty, such penalty
may be imposed on the basis of the evidence adduced during such
inquiry and it shall not be necessary to give such person any
opportunity of making representation on the penalty proposed.
22 It is manifest that the father of the petitioner was not
subjected to any disciplinary proceedings or inquiry with regard to
the alleged unauthorized absence of 75 days, but an adverse
inference has been drawn against him. It is not open to the
disciplinary authority to take into account the previous
unauthorized absence, which was not put to the employee and it
was not made the subject matter of enquiry before relying upon the
same in the matter of imposition of punishment. Such procedure is
in violation of principles of natural justice.
23 In that view of the matter, since the punishment inflicted
upon the father of the petitioner was based upon absent to duty for
certain period to which he was not put on charge, this Court is of
the view that the respondents have no authority to impose such
penalty on him without affording reasonable opportunity to him to
defend or to establish his case. Further, the second respondent
also passed the impugned order basing upon the order of the
disciplinary authority.
24 In a situation where the delinquent dies, as in the present
case, the issue is whether the doctrine of disproportionate
punishment or which shocks the conscience of the Court can be
invoked? Seen from the perspective of the dependents of
a delinquent who died while pursuing his remedy, in my opinion, if
the effect of any such punishment imposed on the delinquent is
devastating in nature to the surviving members of the family, such
a punishment can be said to be disproportionate and shocking to
the conscience of the Court qua, the surviving family members of
the delinquent.
25 The penalty imposed must be commensurate with the gravity
of the misconduct, and that any penalty disproportionate to the
gravity of the misconduct would be violative of Article 14 of the
Constitution of India. Since in the present case the father of the
petitioner though was reinstated into service, was imposed the
penalties stated supra, which in my considered opinion are harsh
and disproportionate to the gravity of the charge. The
circumstances show that it was not his intention to willfully flout
the order, but the circumstances force him to do so because of his
ill-health.
26 Hence the matter requires reconsideration. However, since
the father of the petitioner is no more, this Court deems it fit and
proper to direct the respondents to treat the period from the date of
removal to the date of reinstatement to be on duty for all purposes
since had he been alive, he would have been entitled to all such
benefits. Therefore, W.P.No.11801 of 2017 deserves to be allowed.
27 In view of the foregoing discussion, inasmuch a direction has
been given for reinstatement of the father of the petitioner into
service and since the father of the petitioner had expired
presumably while in service, the petitioner in W.P.No.10183 of
2018 is entitled to employment on compassionate grounds.
28 Therefore, the proceedings dated 04.11.2017 of the second
respondent rejecting the case of the petitioner for appointment on
compassionate grounds is hereby set aside and the respondents
are hereby directed to consider providing employment to the
petitioner in W.P.No.10183 of 2018 on compassionate grounds in
terms of the regulations of the Corporation.
29 Accordingly, both the writ petitions are allowed. However, in
the circumstances, there shall be no order as to costs.
30 Miscellaneous petitions if any pending in these two writ
petitions shall stand closed.
-----------------------------
E.V.VENUGOPAL, J.
Date: 28.02.2023
L.R.Copy be marked.
B/o Kvsn
