M. S. Narayana v. The A.P.S.R.T.C. Rep. By Its Vice Chairman And Managing

tl [ 33841 HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTIETH DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SHRI JUSTICE ANIL KUMAR JUKANTI WRIT PETITION NOs: 17178ot 2014 and 17690 of2016 WRIT PETITION NO: 17178 OF 2014 Between:

t M.S. Narayana, S/o late M. Narasimha, Aged about 45 years, Occ Conductor, E.2O0784 A P.S.R.T,C, RNG-|, Depot, R/o H No 8-1-292, Seethanagar Colony, Shaikpet, Golconda, Hyderabad.

...PETITIONERS AND The A.P.S.R.T C Rep RTC X Road, Hyderabad by its Vice Chairman and [\4anaging, Bus Bhavan,

2. The Depot Manager, APSRTC, RNG-I Depot, Secunderabad ...RESPONDENTS Petition under Article 226 ol the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue any writ, order or direction more particularly one in the nature of writ of mandamus declaring that issuing of suspension order No. 02195 (18)114 RNG-I dated 13-05-2014 with reference to charge sheet dated 14-05-2014 thal has not been issued to the petitioner, without conducting any prima facie investigation, without hearing the petitioner in person, withput obtaining the explanation from the petitioner, without giving the reference of regulation under which regulation the suspension order is issued and not declaring suspension order is under pending enquiry is as illegal, unjust, contain, to law, violation of principles of natural justice by setting aside the suspension order, consequently directing the respondents to take the petition into service with all consequential benefits.

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I.A. NO: 1 OF 2014(WPMP. NO: 21511 0F 2014) Petition under Section 151 CPC praying that In the circurnstances stated rn the affidavit filed in support of the petition, the High Court may be pleased to suspend the suspension order No. 02195 (18)/14 RNG-l dated 13-05-2014 pending disposal or' the writ petition directing the respondents to take the petitroner into service forthwith.

Counsel for the Petitioner: SRI SYED HUSSAIN Counsel for the Respondents: Ms. D.SAI MAHITA, REP, FOR SRI R.ANURAG, SC FOR TGSRTC WRIT PETITION NO: 17590 OF 2016 Between:

/ N/.S. Narayana, S/o late M. Narasimha, Aged about 45 years Occ Conductor, E.No.20078,4 TSRTC, RNG-I depot, R/o H. No. B-1-292, Seerhanagar Colony, Shaikpet, Golcr:nda, Hyderabad.

PETITIONER AND The Vice Cl- airman and [\ilanaging Director, Telangana State Road Transport Corporation, Bus Bhavan, RTC X Road, Hyderabad. The Depot [Vlanager, TSRTC RNG-I Depot, Secunderabad. RESPONDENTS Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue anv writ, order or direction more particularly one in the nature of writ of mandamus, declaring that issuing of termination order No. 02195(18)12014 RNG-l dated 17-12-2015 served to the petitioner on 22-O3-2O16, during the pendencv of the writ petition No.

17178 of 2014 filed for challenging the suspension order, without filing counter, without issuing enquiry notices, obtaining exparte,3pquiry report, without furnishing copy of the r-,xparte enquiry report, without issLring show cause notice, without paying tre subsistence allowance w.e.

reinstate the petitioner into service forthwith subsequent passing order for all consequential benefits.

l.A. NO: 1 OF 2016(WPMP. NO: 21 612 0F 20161 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the H igh Court !.nay be pleased to euspend the termination order No. 02195(18)/2014 RNG-l dated 17-12-201i served on 22-03-2016 pending disposal of the writ petition, directing the 2nd respondent to take the petitioner into service forthwith. Counsel for the Petitioner: SRI SYED HUSSAIN Counsel for the Respondents: Ms. D.SAI MAHITA, REP, FOR SRI R.ANURAG, SC FOR TGSRTC l) The Court made the following: ORDER

'r THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI WRIT PETITION No.17178 OF 2o14 AND 1759() 0F 20 16 coMMON ORDER:

W.P.No.Ll'178 of 2Ol4 is filed with the following prayer:

" .. . to ,qrrtnt ong urit, order or direction more particularhl one in the noture of uit of mandamus declaring that issuing of suspension order No.O2/9tS (18)/14 RNG-I dated 13'05'2O14 ttith rekrence to charge sheet cl'ated 14'O5'2014 that has nol ircen issued. to the petitioner, toithout conducti.n 9' any pima facie inuestigation, tuithout hearing the petitioner in person, tuithout obtairing tLrc e,xplor'ztion from the petitioner, tuithout giuing the refertt t-ce of reEtlation under uthich regulation the susp,z'tsion orcler is issued and not declanng suspen:;io,'r ord-er is under pending enquiry is as itlegal, tt,'tjust, contrary to lanu, uiolation of principle:; of rtotural justice by setting aside the responcler ts to take the petitioner into seruice rLtith' all conse,truential benefits and poss ong such order or ord.ers os this Hon'bte Couri mag deem ftt and proper it the circumstances of the case, in the interest c'J justice."

2.

W.P.No 11'590 of 2O16 is filed with the follrwing prayer:

". . . to issrrc onA writ, order or direction more pot-ticu'l.arla one in the nature of u-tit of mondamus, declaring that issuinq of termination order No.o2/ 95 (18)/2014 RNG I dated 17 12 2o1s serued t.t the petitioner on 22.03.2016, duing the

I JAK, J W-P-Nos-17 17a_U &17590 16 p_endencA of the wit petition No.j717B of 2014 filed for challenging the suspension ord_er, uithout Jiling counter, tuithout obtaining ex parte .ff::ff ';ffT T,i:ff:', fumishing copy of the ex parte enquiry report, uithout issuing show cause notice, withoit piging ttrc subsistence alloutance tt;.e.f. June, 2O16 to iate of tennination order, is as illegat, unjust, contrary to Iaw, improper and uiolation of pinciples of natiral justice by setting asid.e the termination ord.er d_ated, 17.12.2015 directing tlte respondent to reinstate tLre petitioner into seruice fortfutLith subsequent to passing order for all consequential benefits and pass anA such order or orders as this Hon,ble Court mag deem fit and proper in the circumstances of tlte case in the interest of justice.,'

3.

Heard Mr. Syed Hussain, learned counsel for petitioner, Ms. D. Sai Mahita, learned counsel representing Mr. R. Anurag, learned Standing Counsel for the respondent - Corporation 4.

Facts being similar in both the writ petitions, W.P.No.1759O of 2016 is considered for reference. Petitioner was appointed as Conductor in ApSRTC respondent Corporation on 03.11.19g2, services were regularised w.e.f. 25.04.1988. A check was conducted on bus bearing AP llz 6420 on route No.10K on IT.O4.2O14 at stage No.8 of KP Point and found petitioner idling the 1,,,I i:i::a .^dtf

i J JAK' J w.P.Nos.t7178 14 & 7590 16 ?

bus from 14:1() hours to 15:05 hours (i'e', 0 55 mirrutes) causing incon',zenience to the passengers, was lbund without Statisr.ics Return (for short 'SR')'

5.

A charge memo was issued on 13'05'2014, petir'ioner was piaced under suspension, explanation submitti:d on 27.O5.2O14. Nc,t satisfied, a domestic enquiry was orrlered, Assistant Manager (T) SD was nominated as erLquiry officer. Enqu iry officer issued notices' Notices were returned r,,'ith t:ndorsements. Enquiry report was sublnitted on 17 .Ol.2O 1; holding that the charge framed held to be proved. trnqtLiry report, 17.O1.2O15, sent bv RPI\D to petitioner on 1.02.2015, no explanatton r'vas offer<:d By order dated ':7.12.2015 disciplinary authority retloved petitioner frorr: ser-vices. Said order is served on petrtioner on 22.O3.2Olrr. No appeal is preferred under Regul at on 22 of the AP|SRTC (Classification, Control and 'a'ppeal) Regulations, i 96 5 (for short, 'the Regulations') Pet Ltioner challenged thr: order of termination in W.P No.I 7l'i90 of 2016. Petitiort:r filed W.P.No.17 178 of 2014 challenging the order of suspe:rsion dated 13.05.20 14.

JAK, J w-P.Nos-1717A 14 &17590 l6 6.

Learned counsel for petitioner submits that petitioner was appointed as a contract conductor and his services were regularised. That on 19.O4.2014, a check was conducted, that petitioner along with his driver was having lunch at that time. It is further submitted that the lunch hour (for driver and conductor) is half-an-hour, at 2:15 in the afternoon. It is also submitted that the bus being kept in idling condition does not arise at all.

7 .

It is submitted that petitioner lost the SR and immediately on coming to the loss of SR, telephoned to Senior Traffic Inspector (for short 'STI') and informed about the loss. It is further submitted that STI was on leave on that day. Petitioner counsel relied on page No.22, annexed to W.P.No.1759O of 2016, wherein ca1ls made from his mobile No.73828 23584 are mentioned. Petitioner submitted that on 1g.O4.2O74 at 14:58 hours, he made a call from his mobile phone to STI bearing mobile number is 73828 226aO. It is contended that petitioner has sufficient grounds to offer explanation for the charge framed against him. That in spite of the same disciplinary authority

JAK, J w P Nas 17t78 14 ..17590 16 n imposed punishment of removal uide proceedings dated t7.12.2015 B.

Learned counsel contended that petitioner wits not given an opportunity of presenting or defending hir; case and order being a_n ex parte order has to be set aside Reliance is placed on the order of a learned Single Judge in W.P.No.2359)!l of 2016, dated 28.06.2022. Drawing attention of ch:s Court to order in W.P.No.23593 ol 2)\6, it is submittecl 1.hat in the facts and circumstances of the present case, order in W.P.No.23593 of 2016 is applrcable That relief granted in W.P.No.23593 of 2016 be grarrted to petltloner 9.

Learned colrnsel for petitioner contended that petitioner sr-rhrrnitted a change in address and that notices were sent to the old address. Due to non-service of n,:tices, he could not erl-tend enquiry.

10. Learned Standing Counsel appearing for respondent-Corporation submitted that when a check was conducted a.t stage No.S ald petitioner was found idling

JAK, J W.P.Nos. 17 178- l4 & I 7590 1 6 the bus from 14:10 hours to 15:10 hours (00:55 minutes) causing inconvenience to passengers. That petitioner did not have the SR (a document to be carried by the conductor). It is further submitted thai conductor was issued arrother SR bearing No.1251869201 for continuity of servlce by duly opening the Tray numbers. It is a-1so submitted that the information of loss of SR was not communicated to the STI. It is pointed out that petitioner stated wrongly that on the day of loss of SR he informed STI/RNG-I. It is further pointed out that on that day STI/RNG-I was on leave as he was sick.

11. It is submitted that charge memo dated 13.05.2014 was issued to petitioner and placed under suspension. It is further submitted that explanation to charge memo was submitted on 27.05.2014. It is pointed out that disciplinary authority after considering the explanation, ordered for domestic enquiry, appointed Assistant Manager (T) SD as Enquiry Officer.

12. It is submitted that. Enquiry Officer issued notices on three occasions. The first on 74 .ll .2OI4, returned

JAK, J w P b"as t7t78 11 [ 17590 16 ,a unclaimed on 02.12.2014, second notice issued on Ol .12.2014 returned with endorsement "addresser': left" and finai no1.i,:e on 15.12.2014 to petitioner, but, pet.tioner failed to attend the enquiry.

1 3 . Learned Stalding Counsel for respor LdentCorporation submitted that enquiry officer submitted his l report dateit t7.01.2015 to disciplinary authorit)'. Same i was sent to petitioner vide registered post u'ith i acknowledgrnent due (for short 'RPAD) on 1l .02.201f i, that petitioner did not submit arry explanation. That, as there was no explarLation forthcoming, a show cause not:ce for removal was issued on 30.11.2015 through RPAI, for I u,hich petiti,rr-rer did not submit explanation. That ltasing l on the mater,al available on record, order of removal from i service date<l I 7 .12.2015 was passed and communiciLted to petitioner c n 22.O3 .2016 . It is lastly contender': that petitioner ilid not avail the remedy of appeal under Regulation 212, of the Regulations. It is pointed out tL.at the order of re:moval dated 17.12.2015 was passed after

.:

..

JAK, J W P-Nos.17176 14 &17590 16 addressing three (3) notices. That there is no infirmity in the order of respondent-Corporation.

L4. Heard learned counsels, perused the record and considered the rival submissions

15. Petitioner was appointed as Conductor in respondent-Corporation on 03.11.1987, his services were regularised w.e.f. 25.04.1988. A check was conducted on 19.04.2014 at 14:1O hours on bus No.AP 172 6420 on route No.10K, at stage No.S (KP Village) and found idling the bus from 14:1O hours to 15:05 hours (i.e., 0:55 minutes) causing inconvenience to travelling passengers. He was founC without SR, hence another SR bearing No.1251869201, was issued and same was informed to sTr/RNG-r.

16. A charge memo dated 19.04.2OL4 was issued, the following are reflected in the charge memo:

"Observed and checked your bus at 14:10 and found you are idling the bus frorn 14:10 hours to 15:05 hours i.e., O:55 causing inconvenience to tJle intending traveling passengers, loss of revenue and image to the corporation.

You have tried to operate the service without conductor and also mingled with the conductor, witJl

,]AX' J W.P.Nos.171 /8.14 & 7590-16 an inten-lon for tnp curtailment and a-lso phoned to the condr-rctor, even after instructing you not to phone; and als;o gave wrong cell phone number evcn aftcr knor.l'in1q. "

17 . A chargr: sheet dated 13.05.2014 was issuecl and communicatec., placing him under suspension vide proceedings dated 13.05.2014. The said charge IS AS follows:

..CHAR(iII:

For having found idling the Bus from 14.10 hours to 15.05 hrs {i.e. r) 55 mnts) on 19.14.2014 without SR. The TTIs issued ano:her SR bearing No.125/ 869201 for continuation of sen'ice iul5, opening the Tray Nos and you have informed that yolr have lost the SR and the same was informcd to STI/1R\G-l u,hich is not true, which constitutes serious miscondu: : under Regulation 28 (xxii) and 28 (>crrii) of APSRl'C L)rnployees (conduct Regulations, 1963."

18. Petitioner submitted explanation on 27.O5.2O 1'1, not satisfied, discrplinary authority appointed enquiry o lficer. Enquiry office r addressed three notices dated 14.1I.2014, 01.12.2014 a-n,1 15.12.2014 to the address mention'3d by l petitioner. A <:ounter affrdavit is filed in W.P.No.175;90 of 2016 by the l-aw Officer - II of TSRTC. The follou'ing a:e the relevant para,graphs:

"6. It is. submitted that the petitioner submrtted explanzLbc,n to the Charge Sheet on 27.O5.2O74. T}:re 2"d respo:dent i.e., the Disciplinary Authority not convincerl with the explanation, ordered for a domeslic r:nquiry. Therefore, the Assistant Manger (T) SD '*'ars r-rominated as Enquiry Officer to conduct i

't JAR, J W-P-Nos-17178 14 &17590 16 t:_ detailed enquiry and submit report. Accordingly, the Enquiry officer issued notices on three occasions starting from 74.11.2014 which was returned unclaimed on 02.12.2074. Thereafter another notice was issued by the Enquiry Oflicer on Ol.l2.2OI4 intimating the date of enquiry, the same was also returned with an endorsement "addressee left. Finally, the Enquiry ofhcer issued alotJler notice on 15.12.2014 and the Petitioner failed to attend the Enquiry. Therefore, the Enquiry offrcer conducted detailed enquiry ex-parte and submitted report on 17.01.2015 holding that the charges against the Petilioner were held proved.

7. It is submitted that as per the procedure, the findings of the Enquiry ofhcer's report dated 77 .O7.2O75 were sent to the Petitioner vide RPAD on 71.02.2015, the Petitioner did not submit explalation. The Disciplinary Authority after considering the evidence and material available on record came to the provisional conclusion that the charges aeainst the Petitioner were held proved and therefore a show cause notice for rernoval was issued on 30.11.2015 through RPAD. The Petitioner did not submit expianation. "

19. On the basis of the evidence and material on record, disciplinary authority opined that, the charge framed to be proved. Show cause notice for removal from service dated 30.11.2015 was issued to petitioner calling for expianation Petitioner did not offer any explanation and the order of removal was passed on 17.12.2015, said order was served on petitioner on 22.O3.2016. No appeal was preferred.

20. From Ex.PS, it is observed that petitioner intimated change of address on 08.07.2015 to the Depot Manager,

I :

:

JAK' J w P Nos 1717a 11 6 1759A 16 Ranigunj, altr:r submission of the enquiry report. Show cause nottce :.e Ex.P2, of removal from service dated 30.11.2015 \\'a.s sent to the following address: "'l'o iSli M,S.Narayana, E.2OO7 84, t]r'eductor, RNG-I DEPOT lS,/o. M. Narsimha, ll I'1o.1- 105, Hasmathpet, )3o',venpa1ly, Secbad-5000 1 1."

2l . But in Ex.P8 address for communicati(,n is .' menl ioned a:; lreiou':

"i\1. Address:

M . Siltyanarana, H.No.S 1 68/Alt l4l, VLnayaka Nagar, Sh aikpet, Golconda, Hyderabad - 500 008.

Celt: 73828 235a4."

22. There is; ali intimation of change of address for correspondello(l on OB.O7.2O 15, the said letter is received in the office of Depot Manager on O8.07.2015, a stamp is observed or the letter. Show cause notice is dated 17.12.2015 mrrch after the letter of change of adrlress Show cause nctice for remova,l was sent to the old acldress not to the address mentioned in ietter dated 08.07.2015. It can be inf,err-ed from the above facts that petitioner was not served ',lrth the show cause notice of removal from

JAK, J w P Nos 1717a u &17590 16 service. This amounts to violation of principles of natural justice.

23. It is evident from the record that proceedings of Depot Marrager dated 17 .12.20 15 of removal from service was sent by RPAD to the following address (to old address): " Sri M . S . Naray aji,a, E .2oo7 84 , Conductor, RNG-I DEPOT S/o. M. Narsimha, H.No. 1- 105, Hasmathpet, Bowenpally, Sectrad-50001 1. "

24. Contentions advanced on beha-lf of petitioner that he was having lunch from 2:15 P.M., a1leged1y, when bus rnas kept idling and that he lost SR and a substitute SR was given are considered by disciplinary authority and disciplinary authority concluded that the charge stood proved ald the order of removal from service was passed.

25. Learned counsel for petitioner placed reliance on the order dated 2a.O6.2O22 passed in W.P.No.23593 of 2016, wherein, an ex parte enquiry was conducted and petitioner was imposed the punishment. Relevant portion at paragraph No.8 of the order dated 28.06.2022 reads as follows:

JAK, J W.P.Nos-l7l7E l1 & 17590-16 ". . -rlhis court therefore, is of the opinion that the respondents have not been fair in conducting the ex parte enquiry and thereafter terminating the services of the petitioner. Even otherwise, this court also feels that the punishment of termination for the aJl,:ged offence for which the petitioner has been charged is excessive."

26. Learned <:ounsel for petitioner insisted upon a s Lmilar order as irr W.P.No.23593 of 2016. The facts and circumstances of the case relied upon by the peti:ioner counsel are rro1. similar to the case on hand.

27. Shor,r, r:rL,rse notice of removal should have been communicateci to the new address, but, is sent to the old address. Order of removal at Page No.14 is also sent Lo old address. Contentions advarced in this regard cannot be brushed aside. There is no service of show camse nolice of removal from servrce. Principles of Natural Justic,: are violated, appa:-r:ntly no opportunity to offer an explar ation is forthcominp;. Order of remova-1 from service caln of be sustained. Orrler is liable to be set aside for violation of principles of n;atural justice.

28. Writ peti[ions are of the years 2Ol4 and ',2016 Petitioner lr,as removed from service in December. ',2015.

JAI{, J W.P.Nos. 17 t78 14 & 17590- 16 i\.

For nine years, petitioner is out of service. In the facts ald circumstances of the case for the allegation of idling of the bus for 55 minutes and loss of SR, the order of punishment imposed, of removal from service, is dispibportionate to the gravity of the charge levdlled.

29. It is settled law that by exercising the power of judicial review under Article 226 of the Constitution of India, cannot impose punishment. It is the exclusive domain of disciplinar5r authority to impose a proportionate, appropriate punishment, basing on the findings of enquiry report and on considering the entire material on record.

30. In Union Of India & Ors a. P.Gunoseko,rrrnl, th-e Hon'ble Apex Court held as follows:

'The High Court, in exercise of its powers under Articles 226 /227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:

a.

tl'e enquiry is held by a competent authority; b.

the enquiry is held according to the procedure prescribed in that behalf;

c.

there is violation of the principles of natural justice in conducting the proceedings;

d. the authorilies have disabled themselves from reaching a tair conclusion by some I I i ' 1zo rsy z scc oto ;

, !

i

JAX' J l5 W-P-Nos.17l7E l1 &17590 16 considerations extraneous to the evidence and me;its of the casei thre authorities have allowed themselves to be influenced by irrelevant or extraneous e crrr siderations;

the conclusion, on the very face of it, is so f rvh,r lly arbitrary and capricious tha't . no reasonable person could ever have arrived at sr rt Ir conclu sion;

ttre lisciplinary authority had erroneously failed to irdmit the admissible and material evidence; the disciplinary authority had erroneously a,lrritted inadmissible evidence which infhLenced the finding;

thr [rnding offact is based on no evidence'

h Under Articies 2261227 of the Constitution of India, ttre {igh Court shall not:

(r) rr: appreciate the evidence, iitt inteifcre u'rth the conchrsions in the enquiry, ur caso the sarne has been conducted ln accordnnce wrth law;

(iii) go into the adequacy of the evidence;

(i..) go into the reliability ofthe evidence;

(\i inlerfcre, if there be some legal evidence on v,hich findings can be based;

(ri) co-r'ect the error of fact however grave it may ap pear to be;

(vii) go into the proportionahty of punishment unless il r;l-rocks its conscience."

31. In the lircts and circumstances of the case, this Court finds fa."ourrith the submission advanced for a lesser punishment. On the ground of proportionalrty of I ( punishment too, the order of removal is liable to be set aside, as the prunishment of removal is disproportioniLte. .r1

JAK, J W.P.Nos.17178 14 &17590 16 (-.

32. For the reasons stated above, order of removal dated 17.12.2075 is set aside. Respondent-Corporation is directed to consider the case of petitioner afresh. Petitioner shall make a representation within a period of Fifteen (15) days from the date of receipt of a copy of this order. On such representation, the respondent-Corporation shall afford an opportunity and take a judicious rational approach. Needless to state that the representation shall be disposed of within a period of T\,velve (12) weeks from the date of receipt of a copy of representation.

33. W.P.No.17590 of 2016 is accordingly allowed by setting aside the removal order and consequently, W.P.No.77l7B of 2014 also stands allowed.

Miscellaleous petitions, if any, pending, shall stand closed.

SD/-T. TIRUMAJO OEV'

DEPUTY REG/STRAR //TRUE COPY// SECTIONgFFICER To, The Vice Chairman and [Vlanaqing Director, Telanqana State Road Transport Corporation, Bus Bhavan, RTCX"Road, Hyderabad. The Depot Manager, TSRTC RNG-I Depot, Secunderabad. One CC to SRI SYED HUSSAIN, Advocate TOPUCI One CC to SRI R ANURAG, SC FOR TGSRTC [OPUC] Two CD Copies W BSR BS

lq ,t1 HIGH COURT DATED: 3011212024 oR 1rl lqr S c { (,(, o 1 ,t 1:'pg yn6 J o \ J + ,r 1rCO COMMON ORDER WP.Nos.17178 of 2014 & 17590 of 2016 ALLOWING BOTH THE WRIT PETITIONS, WITHOUT COSTS fn \*