Telangana High Court

G.Chitti Babu, vs The Regional Manager Charminar ... on 8 September, 2023

Bench: J Sreenivas Rao

       HON'BLE SRI JUSTICE J. SREENIVAS RAO

             WRIT PETITION No.16598 of 2017

ORDER:

This writ petition filed seeking 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 herein in imposing the minor punishment of reduction of pay by one incremental stage for a period of 2 years which shall not have effect on future increments and also treated the period from the date of removal till the date of reporting to duty as not on duty with all purposes vide impugned Proceedings No.PA/20(142)/2005-HCR dated 16.01.2017 as highly illegal, arbitrary and contrary to law and the same is liable to be set aside and consequentially this Hon'ble Court may be pleased to direct the respondents herein to treat the period from the date of removal i.e., 03.12.2003 to 09.04.2006 as on duty with all attendant benefits including seniority by set aside the impugned Proceedings No.PA/20(142)/2005-HCR dated 16.01.2017..."

2. Heard Sri M.R.Tagore, learned counsel for the

petitioner and Sri Thoom Srinivas, learned counsel for

respondent Corporation.

3. Learned counsel for the petitioner submits that the

petitioner was appointed in the year 1985 as conductor in

the respondent Corporation. While he was discharging his

services as conductor on 06.04.2023 in the route from

Aghapura to VST ex-stage a check was conducted and a

spot charge memo was issued by TTI on the alleged

ground that the petitioner failed to enter in the SR for a

ticket Rs.6/- which was issued to a passenger and called

explanation. The petitioner submitted written explanation

on 08.04.2003 stating that a ticket bearing

No.124/406099 worth of Rs.6/- denomination which was

in a mutilated condition, since it is the last ticket of the

bundle, not able to preserve it. In such circumstances,

the petitioner issued ticket to a passenger and taken only

Rs.5/- instead of Rs.6/-, since the right fair is only Rs.5/-.

Thereafter, the respondent Corporation issued a charge

sheet on 10.04.2003 along with suspension order.

Pursuant to the same, the petitioner submitted detailed

explanation on 15.04.2003. Being not satisfied with the

same, respondent Corporation ordered regular enquiry.

Basing on the enquiry report submitted by the enquiry

officer on 23.10.2003, respondent No.3 issued show cause

notice on 20.11.2003 directing the petitioner to submit

explanation as to why the petitioner should not be

removed from the services. In response to the same, the

petitioner submitted explanation on 29.11.2003 and

without properly considering the same, respondent

Corporation removed the petitioner from the services

through order dated 03.12.2003.

4. Questioning the same, the petitioner filed

W.P.No.5234 of 2004 and the same was allowed on

31.03.2004 and respondent Corporation is directed to

consider the representation and pass orders afresh. He

further submits that respondent Corporation without

properly considering the explanation, issued fresh removal

order dated 01.06.2004. Questioning the same, the

petitioner filed appeal before Divisonal Manager and the

same was rejected on 24.01.2005. Thereafter, he filed

revision petition before Regional Manager. The Regional

Manager passed orders vide Rc.No.PA/20(142)/2005-

HCR, dated 22.03.2006 modifying the punishment order

and reinstated the petitioner into service by imposing a

punishment of reduction of pay by one incremental stage

for a period of two years and the period from the date of

removal till the date of reinstatement treated as "not on

duty" for all purposes.

5. Questioning the said punishment order, petitioner

filed W.P.No.3993 of 2007 and the same was allowed on

24.11.2016 and remanded to respondent No.3 for

consideration of the case afresh with respect to the

punishment imposed on the petitioner. Pursuant to the

same, respondent No.1 issued the impugned proceedings

on 16.01.2017 imposing punishment of reduction of pay

by one incremental stage for a period of two years which

shall not have effect on future increments and the period

from the date of removal to the date of reporting to duty

treated as "not on duty" for all purposes i.e., PF, Gratuity,

Leave, increment, Promotion, Seniority.

6. Learned counsel vehemently contended that the

respondent No.1 imposing punishment of reduction of

pay, by one incremental stage for a period of two years

and treating the period from the removal till the date of

reinstatement i.e., 03.12.2003 to 09.04.2006 not on duty,

on petitioner being disproportionate and higher

punishment, and the same is contrary to law. In support

of his contention he relied upon the judgment of this

Court in A.V. Vinod Kumar v. Executive Committee of

the Central Warehousing Corporation, New Delhi 1

7. Per contra, learned Standing Counsel appearing on

behalf of respondent Corporation submits that pursuant

to the orders passed by this Court in W.P.No.5234 of

2004, the revisional authority modified the punishment of

removal from services into imposing the punishment of

withholding of one annual grade increment with

cumulative effect and treated the removal period "not on

1 2007 (5) ALD 445

duty". Thereafter, the petitioner questioned the said order

by way of another W.P.No.3993 of 2007 and the same was

allowed and directed the respondent Corporation to

consider the claim of the petitioner afresh and pass

appropriate orders. Pursuant to the same, respondent

No.1 after re-examining the entire issue once again,

passed the impugned order modifying the punishment of

one incremental stage for a period of two years without

cumulative effect and treated the removal period as "not

on duty" for all purposes and there is no illegality or

irregularity in the said order.

8. Having considered the rival submissions made by

respective parties and upon perusal of the material

available on record, it clearly reveals that the petitioner

questioned the removal order dated 03.12.2003, passed

by respondent Corporation by filing W.P.No.5234 of 2004

before this Court and the same was allowed on

31.03.2004 and directed the respondent Corporation to

reconsider the claim of the petitioner after considering the

explanation and other documents. Thereafter, the

respondent Corporation passed the very same order on

01.06.2004 reiterating the very same grounds. However,

revisional authority modified the punishment of removal

from services to reinstatement into service by duly

reducing his pay by one incremental stage for a period of

two years which would have the effect of postponement of

his future increments and the intervening period from the

date of removal till the date of his reporting to duty was

directed to be treated as 'not on duty' by its order dated

22.03.2006. Questioning the same, petitioner once again

filed W.P.No.3993 of 2007. Learned Single Judge of this

Court while allowing the writ petition directed the

respondent Corporation to consider the claim of the

petitioner afresh, with respect to the imposition of

punishment by its order dated 24.11.2016. It is very

much relevant to extract the relevant portion of the order:

In this backdrop, it is relevant to peruse the explanation submitted by the petitioner. It has been stated therein that while issuing tickets to the passengers, ticket No. 124/400000 of Rs.6/- denomination was mutilated and was in bad condition, hence, it was not possible to preserve the damaged ticket in the block. While so, one passenger, who boarded the bus at Agapura destined to VST, was issued that: damaged ticket by collecting the actual fare of Rs.5/- and the said fact was endorsed on the reverse of the ticket also, but however, the same was not entered in the SR. In the meantime, the checking officials boarded the bus and seized the SR. To that extert, the explanation submitted by the petitioner was found to be genuine. But, it is presumed that if not the check took place, the petitioner would not have accounted for the said Rs.6/- until the end of the series of Rs.6/- tickets. Therefore, the authorities came to the conclusion that there was temporary misappropriation. For the sake of argument, even if it is to be assumed that the petitioner had not accounted for, at that particular point of time, he would

have done it on the next day. For that, he cannot be said to have committed temporary misappropriation.

As a matter of fact, it is borne out by record that the petitioner, though is a low-paid employee, has been contributing his might to the social cause on day to day basis and the same has been appreciated by the department as well as the other state authorities. In that view of the matter, the punishment, which has been imposed on the petitioner on the ground of temporary misappropriation, can be considered as inappropriate and is not commensurate with the misconduct alleged against the petitioner.

9. The above said order has become final and the

findings given by the leaned Single Judge is binding upon

the parties.

10. In A.V. Vinod Kumar v. Executive Committee

(supra) this Court held that the respondent Corporation

therein while imposing minor punishment is not entitled

to treat the removal period "not on duty" for all purposes

and further held that the respondent Corporation therein

is not having power to impose said punishment, which

reads as follows:

12. Censure is a minor punishment something like a warning to be careful in future. In fact, in the order dated 24-12- 1991, it was stated that a lenient view in the matter was taken to afford an opportunity to the petitioner to improve his behaviour and to be careful in his work in future. While holding so, treating the period of suspension as 'not on duty', cannot be said to have been done in good faith and good conscience. The censure itself is a punishment of a minor nature. To treat the period of suspension as not on duty is a severe punishment, by which the petitioner is denied continuity of service for the purpose of seniority, promotion etc.. Therefore, though the disciplinary

authority has got power, such power, in this case, was not exercised reasonably and no reasonable person could have treated the period of suspension as not on duty while imposing the minor punishment of censure. Under those circumstances, I am of the opinion that treating the period of suspension as not on duty, while imposing a punishment of censure in the disciplinary proceedings, will lead to imposing a major punishment. As such, the action of the disciplinary authority in treating the period of suspension as not on duty is unreasonable and against good conscience. Therefore, that portion of the order dated 24-12-1991 treating the period of suspension (about 18 months) as not on duty, as confirmed by the appellate authority, is liable to be set aside and are accordingly, set aside. Now the order dated 24-12- 1991 as confirmed by the appellate authority on 3-8-1995 shall be read as "that the period of suspension will count as period spent on duty for all purposes including increments, seniority, promotion etc." However, the order denying payment of anything over and above the subsistence allowance granted for the period of suspension shall stand confirmed along with punishment of censure.

11. In the case on hand also the respondent Corporation

imposed minor punishment of reduction of petitioner's

pay by one incremental stage for a period of two years but

treated the period from the date of removal to the date of

reporting as "not on duty" for all purposes i.e., PF,

Gratuity, Leave, increment, Promotion, Seniority and the

same is contrary to the principle laid down in the above

judgment.

12. For the foregoing reasons, the impugned order dated

16.01.2017 passed by respondent No.1, imposing the

punishment of reduction of pay by one incremental stage

for a period of two years which shall not have effect of