Abdul Rahaman vs Telangana Road Transport ...
2023 Latest Caselaw 3324 Tel

       HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

                     WRIT PETITION Nos.
                     3777 and 22166 of 2020

COMMON ORDER :

      Since both these writ petitions are filed by the same

petitioner seeking the inter-related reliefs, both the petitions are

heard together and are being disposed of by this common order.


2.    Heard Sri J.M.Naidu, learned counsel for petitioner and Sri

A.Srinivas Reddy, learned Standing Counsel for the respondents-

TSRTC. Perused the record.

3. The gist of the averments made in both these writ petitions is

that the petitioner was appointed as a Driver in the then APSRTC

on 12.01.1995 and his services were regularized with effect from

01.08.1995. On 08.11.2017, the on-duty Chart Controller has

instructed the petitioner to man the special off bus service No.

AP-23-Z-0055 on route No.640 - Zaheerabad - Bidar - MGBS -

Zaheerabad - BHEL - Zaheerabad, as the regular driver of the said

bus did not report to duty. Accordingly, the petitioner obliged the

orders of the on-duty Controller and attended to duty on the above

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bus service. Since the petitioner was not regular Driver of the said

bus, he was not aware the timings of the said bus service, and

therefore, he drove the bus as per the instructions of the on-duty

Conductor Mr.P.Emmanuel. While so, a charge sheet was issued

to him on 20.11.2017 alleging that he failed to follow the service

timings as he drove the bus 42 minutes earlier to the actual

incoming time, thereby causing loss of revenue to the Corporation

and also inconvenience to the passengers. Case of the petitioner is

that as per the Regulations of RTC, the Driver has to drive the bus

as per the time-schedule indicated by the on-duty Conductor, and

further, as it was a special service and as he does not know the

service timings, he followed the instructions of the on-duty

Conductor. Pursuant to the charge sheet, the petitioner has made a

representation dated 23.11.2017 requesting the 4th respondent to

furnish the copies of MTD 141 timing record and SR copy and

other relevant records to submit explanation to the charge sheet.

However, the respondents, without furnishing such documents,

transferred the petitioner to Siddipet depot as a measure of

punishment, vide office order dated 19.12.2017. Questioning his

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transfer, the petitioner has filed W.P.No.2763 of 2018 and the same

is pending.

4. It is further stated that thereafter, the petitioner fell sick on

17.12.2017 and he informed the same to the 1st respondent by letter

dated 26.12.2017, duly enclosing the medical certificate. He took

treatment at the Government Area Hospital, Zaheerabad and on the

advise of Doctors there, he took treatment at Gandhi hospital,

Secunderabad. After prolonged treatment, the petitioner has

recovered from illness and accordingly he submitted the fitness

certificate issued by the Gandhi Hospital, Secunderabad. However,

the respondents have issued charge sheet dated 25.04.2018 while

the petitioner was undergoing medical treatment. Since the

petitioner could not attend the inquiry as he was undergoing

treatment, an ex parte inquiry was conducted holding that the

charges of unauthorized absence from duties and violation of

orders of the superior officers, are proved. Accordingly, a show

cause notice of removal dated 23.10.2018 was issued, for which,

the petitioner has submitted his explanation on 01.11.2018.

Thereafter, the order dated 06.11.2018 was passed by the 2nd

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respondent removing the petitioner from service. The appeal

preferred by the petitioner was also dismissed. Thereafter, the

petitioner has filed revision petition before the 1st respondent,

wherein, the punishment of removal was modified as reinstatement

into service with postponement of two annual grade increments

with cumulative effect and also treating the period of removal as

'not on duty' for all purposes.

5. The grievance of the petitioner is that the impugned orders

of punishment are passed without considering the medical

certificates submitted by him with regard to his treatment, as

required under the circular instructions and Regulations of the

Corporation. Hence, the present writ petitions are filed seeking to

set aside the orders of punishment.

6. Counter affidavits are filed in both the writ petitions with the

same averments. At the outset, it is stated in the counter affidavits

that the writ petitions are not maintainable as the petitioner has

directly approached this Court without approaching the Labour

Court. It is stated that when the petitioner was transferred to

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Siddipet Depot vide proceedings dated 19.12.2017, instead of

reporting at the said Depot, he produced a private sick certificate

about his ill health from 17.12.2017 to 05.01.2018. Therefore, the

Corporation has addressed a letter to the petitioner to undergo

medical check-up at RTC hospital, Tarnaka and the said letter was

acknowledged by the petitioner on 03.02.2018. But, the petitioner

did not respond to the said letter nor did he report at Siddipet Depot

or at RTC hospital, Tarnaka. Therefore, a charge sheet was issued

to the petitioner on 25.04.2018 for his unauthorized absence and

also for violating the instructions of the higher officials. Since the

petitioner did not submit his explanation to the charge sheet, an

inquiry officer was appointed and inspite of acknowledging the

notices issued in the inquiry proceedings, the petitioner did not

participate in the inquiry. Therefore, an ex parte inquiry was

conducted and the inquiry officer has submitted report on

21.09.2018 holding that the charges against the petitioner have

been proved. Accordingly, a show cause notice was issued and

final order of removal was passed vide proceedings dated

06.11.2018. The appeal filed by the petitioner was rejected on

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22.02.2019. When the petitioner has preferred revision, the

punishment of removal was modified to that of postponement of

two annual grade increments with cumulative effect and the period

of removal was ordered to be treated as 'not on duty' for all

purposes, vide proceedings dated 14.06.2019. The case of the

respondents is that as per the Regulations of the Corporation, the

petitioner has to take treatment in any RTC dispensary or at

Tarnaka hospital, however, the petitioner has submitted the

medical certificate of a private doctor to cover up his unauthorized

absence. It is stated in the counter affidavits that as the petitioner

has caused loss of revenue to the Corporation and inconvenience to

the commuters who utilize the services of the Corporation, he

is not entitled for further modification in the punishment imposed

on him by the revisional authority. Accordingly, the respondents

have prayed to dismiss the writ petitions.

7. Petitioner has filed reply affidavit. While reiterating the

averments of the writ affidavits, it is further stated in the reply

affidavit that he was neither issued any pass nor referred to the

RTC hospital at Tarnaka for getting treatment, therefore, the

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respondents cannot blame him for taking treatment in the

Government hospitals, which is also permissible under the RTC

guidelines.

8. In these writ petitions, there are two limbs of punishments

imposed on the petitioner; one is his transfer to Siddipet Depot for

manning the special off bus service No.AP-23-Z-0055, 42 minutes

earlier to the scheduled time and the other punishment is

postponement of two annual grade increments with cumulative

effect and treating the period of removal as 'not on duty' for the

alleged unauthorized absence from duty on the ground of ill-health.

9. Coming to the first aspect of the matter, on 08.11.2017,

petitioner was asked to man the special off bus service No.

AP-23-Z-0055, as its regular driver did not report to duty. The

allegation against the petitioner was that he drove the bus to the

destination 42 minutes earlier to the scheduled time, whereas, his

case was that he was new to the said route and further, he drove the

bus as per the instructions of the on-duty Conductor, which he was

supposed to do as per the RTC Regulations. The on-duty

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Conductor has to maintain the timings of the bus service and the

Driver has to drive the bus as per the instructions of such

Conductor. It is not the case of the on-duty Conductor that the

petitioner did not drive the bus as per his instructions. That apart,

the inquiry was conducted ex parte without supplying the MTD

141 Card and the SR copy sought by the petitioner for submitting

his explanation to the charge. Therefore, the petitioner cannot be

made responsible for not maintaining the timings of the bus

service, that too, of a special off service which was a new route to

him. Hence, the action of respondents in issuing the office order

dated 19.12.2017 transferring the petitioner to Siddipet Depot as a

measure of punishment, is not sustainable.

10. Coming to the allegation of unauthorized absence, the case

of the petitioner is that he was transferred to Siddipet Depot vide

order dated 19.12.2017, however, he could not join there as he fell

ill from 17.12.2017 onwards i.e. prior to passing of such transfer

order. He intimated about his illness to respondent No.1 by letter

dated 26.12.2017. The petitioner took treatment first at

Government Area Hospital, Zaheerabad and on the advise of

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Doctors at the said hospital, he took treatment at Gandhi hospital,

Secunderabad and after prolonged treatment, he could recover from

the illness. In proof of his taking treatment at Area hospital,

Zaheerabad, the petitioner has filed medical certificates for the

period from 17.12.2017 to 15.07.2018. He has also filed medical

certificates issued by the Gandhi Hospital, Secunderabad in proof

of his taking treatment at the said hospital during the period from

15.07.2018 to 14.12.2018 and has also filed the fitness certificate

issued by the said hospital stating that he is fit to join duty from

14.12.2018. The grievance of the petitioner is that inspite of filing

such medical certificates, the respondents have not permitted him

to join duty and during the course of his treatment itself, issued

charge sheet dated 25.04.2018, conducted ex parte inquiry and

imposed the punishment. The only ground taken by the

respondents for not permitting the petitioner to join duty, for

conducting inquiry and for imposing the punishment, is that he

did not take treatment at RTC hospital, Tarnaka. But, it is to be

seen that the petitioner has taken treatment only at Government

hospitals i.e. Area hospital at Zaheerabad and at Gandhi Hospital,

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Secunderabad and he did not go to any private hospital so as to

suspect the medical certificates produced by him. The petitioner

has also referred to the Circular dated 08.01.1999 issued by the

RTC stating that the authorities will accept the sick certificates

issued by the designated RTC Doctor or Government Doctors.

Therefore, the petitioner has complied with the said circular

instructions, as he took treatment at Government hospitals and

produced the medical certificates to that effect. Hence, this Court

is of the considered view that the respondents should have taken

into consideration such medical certificates before issuing the

charge sheet and initiating inquiry proceedings against the

petitioner.

11. The learned counsel for the petitioner has relied on the

judgment of this Court in TSRTC, Hyderabad and others v.

Janaki Ramudu 1, wherein, it is held that imposition of major

penalty of removal from service upon the employee without, in any

manner, addressing the crucial question as to whether there was

sufficient cause behind his absence or not, is not proper. This

2017 (1) ALD 254 (DB)

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judgment is squarely applicable to the facts of the present case, as

in this case also, the respondents have imposed the major

punishment of removal on the petitioner without considering the

medical certificates filed by him in accordance with the circular

instructions of the TSRTC.

12. On the other hand, the learned Standing Counsel for TSRTC

has relied on a judgment of Hon'ble Supreme Court in Transport

and Dock Workers Union and others v. Mumbai Port Trust

and others 2, wherein, it is held that the writ jurisdiction is

discretionary jurisdiction and it cannot be exercised when an

alternative remedy is available to the petitioner. Though there is

no dispute with regard to the law laid down by the Hon'ble

Supreme Court in the above judgment, such an objection with

regard to availability of alternative remedy is to be taken by the

Registry at the time of numbering the writ petition or by the other

side, at the early stages of proceedings. Having allowed the

proceedings to continue, the respondents cannot now take such an

objection and it is not appropriate to drive the petitioner, at this

MANU/SC/0958/2010

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stage, to avail the alternative remedy before the Labour Court.

Hence, this Court is not inclined to entertain the objection of

respondents-TSRTC with regard to availability of alternative

remedy to the petitioner by way of filing an Industrial Dispute

before the Labour Court.

13. For the aforesaid reasons, the impugned orders of

punishment are liable to be set aside.

14. Accordingly, both the writ petitions are allowed. The office

order No.P3/789(2)/2017-RM:MR, dated 19.12.2017 and

proceedings No.PA/675(10)/2019-RM:MR, dated 14.06.2019, both

passed by the Regional Manager of TSRTC, Medak Region, are

hereby set aside. Consequently, the respondents shall permit the

petitioner to join duty. The respondents are further directed to

revive the withheld increments of the petitioner and the period of

removal from service shall be treated as 'on duty' for all purposes.

No costs.

Pending miscellaneous applications, if any, shall stand closed.

____________________ JUVVADI SRIDEVI, J Date: 19.10.2023 ajr