T.Sanjeev Rao vs The Telangana State Road Transport ...
2024 Latest Caselaw 468 Tel

Telangana High Court

T.Sanjeev Rao vs The Telangana State Road Transport ... on 5 February, 2024

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

        WRIT PETITION Nos.2931 & 39381 of 2015
                  and 23878 of 2017

COMMON ORDER:

Since the issue involved in all the writ petitions is

intrinsically connected, the writ petitioners are heard together

and are being disposed of by this common order.

2. For convenience, APSRTC/TSRTC i.e., petitioner in

W.P.No.2931 of 2017 and respondents in W.P.Nos.23878 and

39381 of 2015 is referred to as " the Corporation", T.Sanjeeva

Rao, who is respondent No.2 in W.P.No.2931 of 2015 and

petitioner in W.P.Nos.23878 and 39381 of 2015 is referred to as

"the employee" and the Industrial Tribunal - cum - Labour

Court - cum - VI Additional District and Sessions Court,

Godavarikhani is referred to as "the Labour Court".

W.P.No.2931 of 2015:

3. This writ petition is filed by the Corporation challenging

the award dated 17.12.2013 in I.D.No.145 of 1997, on the file of

the Labour Court.

LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

4. Brief facts leading to filing of the writ petition are that

employee originally filed an application vide I.D.No.145 of 1997

under Section 2-A of Industrial Disputes Act, 1947 (for short

'Act, 1947') and Section 2(2) of A.P. Amendment Act, 1987

before the Labour Court, alleging violation of Section 25(F) of

Act, 1947 and claimed that he worked as Khalasi from

01.01.1989 to 23.11.1996 and the Corporation not permitted

him to work at Zonal Stores with effect from 25.11.1996 without

showing any valid reason and without any order. However, the

Labour Court dismissed the said I.D. vide its order dated

27.12.2000.

5. Aggrieved by the order dated 27.12.2000, the employee

filed W.P.No.16628 of 2001 before this Court and this Court

vide order dated 13.02.2012 remitted back the case to Labour

Court for fresh disposal after duly giving opportunity of hearing

to both sides. After elaborate enquiry, the Labour Court passed

award on 17.12.2013 by allowing I.D.No.145 of 1997 and

directed the Corporation to reinstate the employee into service

in the same capacity, in which he worked prior to his

termination with continuity of service and all attendant benefits LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

with 50% back wages. The said award was published in

G.O.Rt.No.293, dated 05.02.2014.

6. Aggrieved by the above award, the Corporation filed the

present writ petition. The employee has filed counter affidavit

denying the averments made in the affidavit, except passing of

the award dated 17.12.2013 in ID.No.145 of 1997 by the Labour

Court directing the RTC to reinstate the employer into services

with all attendant benefits including 50% back wages. It is

further contended that the employee fulfilled all the conditions

for regularization of the services and his termination is illegal

under Section 25F of ID Act and also stated that grounds raised

in the writ petition are devoid of merits and the writ petition is

liable to be dismissed.

W.P.No.39381 of 2015:

7. This writ petition is filed by the employee to declare the

office order passed in Proc.No.P2/122(1)2013-WM;KR, dated

05.11.2015 as illegal, arbitrary and against the principals of

natural justice and to declare the award passed by the Labour

Court in I.D.No.145/1997 as illegal and arbitrary to the extent

not awarding regularization of services from the date of LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

termination, i.e. November 1996 and not granting full back

wages to the employee and consequently, direct the Corporation

to effect all service benefits and continuity of service by

regularizing the services of the empoyee in the same cadre.

8. Brief facts leading to filing of present writ petition are that

the petitioner/employee was working in the respondent

Corporation as daily wage kalasi. As the employee was asked to

discontinue his services without following due process of law, he

filed I.D. No. 145 of 1997 before the Labour Court,

Godavarikhani, Karimnagar District and the Labour Court vide

order dated 17.12.2013 passed an award directing the

corporation to reinstate the employee into service in the same

capacity in which he worked prior to his termination with

continuity of service and all attendant benefits with 50% back

wages and the employee was joined in the duty and working the

same.

9. While so, the Corporation filed W.P.No.2931 of 2015

questioning the award passed by the Labour Court in

I.D.No.145 of 1997 and while admitting the said writ petition,

this Court granted interim stay only to the extent of payment of LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

back wages. The Corporation issued proceedings in Case No.

P2/122(1)/2013-WM:KRMR dated 29.10.2015 and implemented

the order passed by the Labour Court which read as under:

"In view of the orders of the Hon'ble High Court in W.P.No.2931/2015 and as per the directive of SLO/Hyd Sri T.Sanjeea Rao S/o.Venkataiah has been appointed as Cleaner/Shramik w.e.f 28.02.1998 with probationary right on the pay of Rs.875-25-950- 35-1400-40-1560 (RPS 1989) with all other usual allowance admissible from time to time as per the rules in force and posted at Zonal Stores, Karimnagar. He is allotted with Staff No.323646.

This has the approval of the Competent Authority".

10. However, subsequently, the Corporation, without issuing

any notice to the employee, passed proceedings vide No.

P2/122(1)/2013-WM:KR, dated 05.11.2015, cancelling the

earlier proceedings dated 29.10.2015, by which the service of

employee were regularized. It is further contended that the other

employees, who were similar to the employee in the Corporation

were regularized and scale was conferred to them; that the

employee is entitled to be continued in the service with all LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

attendant benefits except back wages; that he has been in

continuous services as on the date of his termination and his

services could have been regularized long back by fixing the

scale etc.

11. The Corporation has filed counter affidavit denying all the

averments made in the writ affidavit and inter alia contended

that without prejudice to challenge to the award of the Labour

Court, the employee was reinstated into service on 07.04.2014.

Subsequently, the Corporation filed W.P.No.2931 of 2015 before

this Court and on 12.02.2015 and this Court had granted

interim stay only to the extent of back wages. It is also

contended that the Works Manager, erroneously issued

proceedings dated 29.10.2015 appointing the employer as

cleaner/shramik with effect from 28.02.1990 with probationary

right along with all other usual allowance admissible from time

to time as per the rules in force and allotted Staff No.323646.

Therefore, the Corporation issued proceedings dated 05.11.2015

cancelling the proceedings dated 29.10.2015.

12. It is further contended that this Court vide its order dated

04.12.2015 directed the Corporation to verify the date of grant LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

of regularization and scale to the immediate junior, who was

appointed subsequently to the date of original appointment of

the employee and grant the consequential benefits in

compliance of the award passed and any such decision shall

abide the result of the writ petition. However, as back wages are

stayed by this Court, the petitioner is not entitled to receive any

back wages till the disposal of W.P.No.2931 of 2015.

13. It is also contended that since the employee did not fulfill

the criteria for regular appointment, he could not be appointed

on the regular time scale of pay. Accordingly, proceedings dated

29.10.2015 were cancelled vide proceedings dated 05.11.2015

by duly giving reasons for cancellation. It is further contended

that for withdrawal of the orders dated 29.10.2015, the

employee is not entitled to be put on notice, as it was an error

which is sought to be rectified vide proceedings dated

05.11.2015.

14. The Corporation has referred to the judgment of Hon'ble

Apex Court in the case of State of Karnataka and others Vs.

Uma Devi and others (2006 (4) SCC1), wherein it is held that

"if it is a contractual appointment, the appointment comes to an LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

end at the end of the contract, if it were an engagement or

appointment on daily wages or casual basis, the same would

come to an end when it is discontinued. Similarly, a temporary

employee could not claim to be made permanent on the expiry

of his term of appointment".

15. It is finally contended that since the employee was not

appointed through regular process of recruitment and no

appointment orders were issued, he is not entitled to claim for

regularization of his services.

W.P.No.23878 of 2017:

16. This writ petition is filed by the employee to declare the

impugned order vide No.P2/255(1)/2013-WM:KRMR, DT:

19.06.2017 as illegal, arbitrary and against the principles of

natural justice and set aside the same and consequently, direct

the Corporation to continue the services of employee with all

service benefits pending final disposal of main writ petition.

17. It is contended that the petitioner being the low grade

employee in the Corporation was made to undergo such a

laborious legal battle against the Corporation for the last 20 LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

years, to re-gain his employment and was appointed as shramik

by order dated: 07.04.2014; that the officers of the Corporation

have developed personal grudge against him and started

showing a step mother treatment and waiting for a chance to

terminate his services, in the process of such efforts, the

Corporation issued proceedings against the employer vide

proceedings No.P2/255(1)/2013/WM-KRMR, dated 25.05.2017

to show cause as to why his services should not be disengaged

basing on his age. The employee submitted his explanation on

03.06.2017 stating that at the time of his joining on 01.01.1989

as a causal shramik in the Corporation, the Corporation has not

asked any qualification and age proof. The employee stated his

date of birth as 15.12.1965 and the he stated his age as 32 at

the time of filing ID 145/1997 before Labour Court; that the

Corporation subjected the employee to medical examination in

the year 2014 and the Medical Officer, Corporation Dispensary

vide certificate dated 10.04.2014 determined the age of the

employee as 50 years, which is an authentic proof to show that

he was born in the year 1965.

LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

18. It is stated that the Corporation made an enquiry and got

a certificate of date of birth from ZPHS at Garrepally and as per

the letter dated 29.09.2016 of Head Mistress, ZPHS, the

employee pursued his education in their school from 4th to 10th

class during 14.09.1963 to 08.10.1971 and that his date of

birth was shown as 05.01.1955. According to the Corporation

the employee attained the age of superannuation of 58 years as

on 05.01.2023, i.e. even prior to the passing of the award by the

Labour Court in I.D.No.145 of 1997 dated 17.12.2013.

19. It is further stated that the Corporation conducted

vigilance enquiry behind his back subsequent to the order

passed by the Labour Court in I.D.No.145 of 1997 and also

order passed by this Court in W.P.No.39381 of 2015. Without

considering the explanation given by the employee to the show

cause notice dated 19.06.2017, without following the procedure

contemplated under RTC Service Regulations and merely on the

basis of letter issued by the Head Mistress, ZPHS, Sultanabad,

the Corporation passed impugned termination order on

19.06.2017, which is bogus.

LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

20. This Court, vide interim order dated 20.07.2017, in

W.P.M.P. No.29545 of 2017 suspended the operation of

impugned notice dated 19.06.2017 and further direction to

continue the employee in service by observing that the

impugned order is not preceded by any disciplinary enquiry.

21. This Court by order dated 20.07.2017 in WPMP No.

29545/2017 in W.P.No.23878/2017, suspended the impugned

order dated 19.06.2017. However, respondents despite interim

order have not continued the services of the employee.

Therefore, the employee filed contempt case vide CC No.479 of

2018 to punish the respondents for willfully disobeying in

implementing the order of this Court, dated 20.07.2017.

22. The Corporation has filed the counter affidavit denying

the allegations, averments made in the writ petition, however,

admitted the fact of passing of award by the Labour Court and

filing of writ petitions, i.e. W.P.Nos.16628 of 2001 and 2931 of

2015.

23. The Corporation filed W.A.No.1958 of 2017 against the

order dated 20.07.2017 passed in W.P.M.P.No.29545 of 2017 in LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

W.P.No.23878 of 2017 and the Hon'ble Division Bench of this

Court vide interim order dated 21.11.2019 stayed the operation

of the order till the next date of hearing.

24. Further, it is contended that the employee vide his

explanation dated 03.06.2017 did not dispute the school record

and certificate issued by the Head Mistress dated 29.09.2016

and he failed to produce any other documents to prove his age

or date of birth: that the medical certificate cannot be taken as a

basis when the date of birth certificate is available from the

school record and further the identity card issued by Election

Commission of India shows the age of the petitioner as 38 years

as on 01.01.1995 and other documents, i.e. Aadhar Card &

House hold card (Ration Card) cannot be taken as basis for

proof of date of birth, when the school record is available.

25. It is finally contended that the disengagement of the

petitioner on attaining the age of superannuation cannot be

treated as a disciplinary action, hence, no enquiry is required

and no person can be continued in employment beyond the age

of retirement specified in the regulations.

LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

26. Heard Mr.T.Kistaiah, learned counsel for the employee

and Mr.Gaddam Srinivas, learned Standing Counsel for TSRTC.

Consideration:

27. Perusal of the record would show that the employee

worked as Shramik in Karimnagar Depot from 05.05.1989 to

25.11.1996 on daily wages. The services of employee were

terminated orally and he was not allowed to perform duties from

25.11.1996. Aggrieved by the same, employee filed I.D.No.145 of

1997 before the Labour Court and the same was dismissed by

the Labour Court vide its award dated 27.12.2000. Aggrieved by

the same, employee filed W.P.No.16628 of 2011 before this

Court and this Court vide its order dated 13.02.2012 allowed

the writ petition and remanded the matter back to the Labour

Court for enquiry. The Labour Court after enquiry passed award

on 17.12.2013 directing the Corporation to reinstate the

employee into service in the same capacity of 50% of back wages

and other benefits. Consequently, the Corporation reinstated

the petitioner into service on 07.04.2014.

28. However, with regard to granting of 50% back wages, the

Corporation has filed W.P.No.2931 of 2015 before this Court LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

and this Court on 06.02.2015 granted interim stay to the extent

of payment of back wages. In view of the order passed in

W.P.No.2931 of 2015 and as per the directive of SLO/Hyd, the

employee was appointed as cleaner/ shramik vide proceedings

dated: 29.10.2015 with effect from 28.02.1998 with

probationary right with all other usual allowances.

29. The Corporation issued proceedings dated 05.11.2015

that the employee is not fulfilling the criteria for regular

appointment and therefore, the employee is not entitled to be

appointed as regular time scale.

30. While the matter stood thus, the Corporation issued show

cause notice dated 25.05.2017 as to why the employee services

should not be discontinued basing on the letter 29.09.2016

issued by the Head Mistress ZPHS, Garrepally Sultanabad,

wherein his date of birth is mentioned as 05.01.1955. According

to the Corporation, the employee attained the age of

superannuation, i.e. 58 years as on 05.01.2013 even prior to

passing of award by the Labour Court dated 17.12.2013. The

employee submitted his explanation on 03.06.2017, however, LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

the Corporation issued impugned proceedings dated 19.06.2017

disengaging him from services.

31. The employee filed W.P.No.23878 of 2017 challenging the

proceedings dated 19.06.2017 before this Court and this Court

vide its order dated 20.07.2017 suspended the impugned

proceedings passed by the Corporation. The Corporation has

preferred writ appeal vide W.A.No.1958 of 2017 and the Hon'ble

Division Bench vide orders dated: 21.11.2019 suspended the

order passed by the learned Single Judge. Subsequently, on

22.01.2020 said writ appeal was disposed of directing the

learned Single Judge of this Court to decide the main writ

petition within a period of three months.

32. The sum and substance of contentions raised by the

employee are that at the time of joining in the Corporation on

01.01.1989, no certificate in proof of age was insisted by the

Corporation and he his date of birth as 15.12.1965; that he

mentioned his age 32 at the time of filing ID 145/1997 before

Labour Court; later, at the time of reinstated of employee, the

Corporation subjected the employee to medical examination in

the year 2014 and the Medical Officer, Corporation Dispensary LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

vide certificate dated 10.04.2014 determined the age of the

employee as 50 years, which is an authentic proof to show that

he was born in the year 1965. It is further case of employee that

the vigilance enquiry was conducted behind his back only to

overcome the order passed by the Labour Court in I.D.No.145 of

1997 and also orders passed by this Court in W.P.No.39381 of

2015; that without considering the explanation given by the

employee to the show cause notice dated 19.06.2017 passed

impugned termination order on 19.06.2017 contrary to the

procedure contemplated under RTC Service Regulations and

merely on the basis of letter issued by the head Mistress, ZPHS,

Sultanabad.

33. The sum and substance of the Corporation is that at the

time of appoint the employee did not produce any certificate

evidencing the date of birth and therefore, he was subject to

medical examination and determined that the employee was

born in the year 1965; subsequently, vigilance enquiry was

conducted and as per the school records, where the employee

studied, his age was recorded as 05.01.1955; as per the

Corporation rules, superannuation of employee is 58 years and LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

thus employee attained age of superannuation on 05.01.2013,

even prior to passing of award by the Labour Court on

17.12.2013 and thus, the services of employee were rightly

disengaged; that when school certificate is available, the medical

certificate issued by the Medical Officer, Corporation Dispensary

cannot be relied upon; that disengagement of employee on

attaining the age of superannuation cannot be treated as

disciplinary action and no interference is required.

34. It is relevant to note that services of employee were

terminated on 19.06.2017 basing on school certificate, as per

which, employee attained superannuation on 05.01.2013. The

Corporation sought explanation from the employee and passed

impugned proceedings terminating services. Admittedly, no

enquiry was conducted before coming to the conclusion and

fixing the age of the petitioner as 05.01.1955 on the basis

school certificate. Admittedly, at the time of joining service, as

no document was produced in proof of age of the employee, he

declared his as 15.12.1965 and the same was not objected by

the Corporation. At the time of reinstatement in the year 2014,

the employee was subjected to medical examination by the LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

respondent-Corporation and the Medical Officer of respondent-

Corporation issued certificate dated 10.04.2014 determining the

age of employee as 50 years, which correspondence to date of

birth of employee as 1965. Consequently, the age of the

employee was recorded in his service register and was given

employee code.

35. In considered opinion of this Court, having subjected the

employee to medical examination and having accepted the age

of employee basing on medical examination and having issued

employee code, it is not open to respondent-Corporation to

reopen the issue of age of the employee and undertake vigilance

enquiry on that aspect. It is relevant to note that medical

certificate issued by the Medical Officer of the respondent-

Corporation cannot be brushed aside as the same was issued

after due medical examination of the employee by its medical

officer. It is also relevant to note that Identity Card issued by

Election Commission of India, Aadhaar Card and Household

Card (Ration Card) also reflect the date of birth of the employee

as 1965. Therefore, the Corporation committed grave error in

relying on letter issued by the school ignoring the other LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

documents i.e., election card, aadhaar card, ration card and

medical certificate issued by its own medical officer determining

the age of the employee as 1965. In the light of above, in

considered opinion this Court, the Corporation grossly erred in

fixing the date of birth of the employee as 1955 only on the

basis of letter issued by Headmistress of school.

36. Before taking drastic step of termination of services of

employee based on school certificate, the Corporation should

have undertaken detailed enquiry and reasonable opportunity

also ought to have been given to employee to defend himself. In

the present case, admittedly, no enquiry was conducted, which

is clear violation of the principles of natural justice and also

RTC Service Regulations. The vigilance report said to have given

basing on the enquiry has not been placed on record by

Corporation. Therefore, the contention of the Corporation that

disengagement of the petitioner on attaining the age of

superannuation cannot be treated as disciplinary action and

that no enquiry is required, cannot be countenanced as the

same is contrary to the principles of natural justice and LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

therefore, the impugned proceedings dated 19.06.2017 are

unsustainable and hence, liable to be set aside.

W.P.No.2931 of 2015:

37. In the light of above discussion, in considered opinion of

this Court, the Corporation failed to make out any case to

interfere with the award dated 17.12.2013 passed by the

Labour Court and therefore, this Writ Petition is dismissed.

W.P.No.39381 of 2015:

38. The show-cause notice, dated 05.11.2015 calumniated in

issuance of termination proceedings dated 19.06.2017,

therefore, challenge to notice dated 05.11.2015 has become

infructuous. Insofar as payment of full back-wages is

concerned, in considered opinion of this Court, the Labour

Court had rightly granted only 50% back-wages while ordering

reinstatement of petitioner. The petitioner failed to make out a

case for granting full back-wages and therefore, this Court is

not inclined to interfere with the award passed by the Labour

Court granting 50% back-wages.

LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

WP No.23878 of 2017:

39. This Court already held that it is not open to Corporation

to reopen the issue of age once employee was subjected to

medical examination and the same was accepted by the

employer and the employee code was issued. Further, this Court

also held that termination proceedings dated 19.06.2017 are

contrary, erroneous and same were issued without any

disciplinary proceedings and without affording opportunity to

the employee and thus, same is contrary to the principles of

natural justice and service regulations.

40. It is pertinent to note that this Court, vide interim order

dated 20.07.2017, in W.P.M.P. No.29545 of 2017 suspended the

operation of impugned notice dated 19.06.2017 and further

direction to continue the employee in service by observing that

the impugned order is not preceded by any disciplinary enquiry.

The respondent-Corporation did not comply with the said order.

41. In the light of above facts, circumstances and discussion,

petitioner is entitled to full back-wages from 19.06.2017 till the

date of superannuation taking into consideration the date of

birth of the petitioner as 15.12.1965.

LNA, J W.P.Nos.2931 & 39381 of 2015 and 23878 of 2017

42. In the result, (i) W.P.No.2931 of 2015 filed by the

Corporation is dismissed; (ii) W.P.No.39381 of 2015 is

dismissed; (iii) W.P.No.23878 of 2017 filed by the employee is

allowed. The respondent-Corporation is directed to effect all

service benefits, continuity of service of the petitioner by taking

the date of birth as 15.12.1965 till the date of superannuation

and pass appropriate orders within a period of eight weeks from

the date of receipt of copy of this order. There shall be no order

as to costs.

Pending miscellaneous applications if any shall stand

closed.

____________________________________ LAXMI NARAYANA ALISHETTY, J Date: 05.02.2024 Dua/kkm