Karnataka High Court
Shaikh Hussain S/O Abdul Gani vs The Ksrtc Central Office And Ors on 9 October, 2018
Author: S.Sujatha
Bench: S.Sujatha
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 09TH DAY OF OCTOBER 2018
BEFORE
THE HON'BLE MRS.JUSTICE S.SUJATHA
W.P.NO.201326/2016 (S-KSRTC)
Between:
Shaikh Hussain
S/o Abdul Gani
Age: 48 years
Occ: Depot Manager
Depot No.3, NEKRTC
Kalaburagi-585 102
... Petitioner
(By Sri P. Vilas Kumar, Advocate)
And:
1. The KSRTC Central Office
Through its Managing Director
Shanti nagar
Bangalore-09
2. The North East Karnataka Road
Transport Corporation
Through its: Managing Director
Sarige Sadana
Main Road
Kalaburagi-585 102.
3. Wilson Robo
Age: 49 Years
Occ: Divisional Mechanical Engineer
2
Mangalore Depot,
Mangalore-575 001.
... Respondents
(By Sri Subhash Mallapur, Advocate for R1;
Sri Shivashankar H. Manur, Advocate for R2;
R-3 served but unrepresented)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India, praying to issue a writ of certiorari for
quashing the order of punishment dated 26.11.2015 which has
been issued to the petitioner passed by respondent No.2 which is
at Annexure-A and issue a writ of mandamus directing the
respondents to promote the petitioner to the post of Divisional
Mechanical Engineer (Senior Depot Manager) at least a day earlier
with effect from a day earlier to the promotion given to the
respondent No.3 i.e., from 10.01.2016.
This writ petition having been heard, reserved for order on
18-09-2018 and coming on for pronouncement of order, this day,
S. SUJATHA J., made the following :-
ORDER
The petitioner has called in question the correctness and legality of the order dated 26.11.2015 issued by the respondent No.2 dated 26.11.2015 at Annexure-A to the writ petition inter alia seeking direction to the respondents to promote the petitioner to the post of Divisional Mechanical Engineer (Senior Depot Manager) at least a day earlier with effect from a day earlier to the promotion given to the respondent No.3 i.e., from 10.01.2016.
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2. The petitioner contends that he was appointed by the respondent No.1 in the year 1996 as Chargeman. The charge sheet dated 19.07.2010 had been issued to him at the instance of the persons inimically disposed against him, wherein it was alleged that he was responsible for the road accident caused by the driver on 29.05.2010 near Bengaluru. It was alleged that the driver was not experienced and it is for that reason entrustment made by him for a long route driving to an inexperienced driver was not correct and proper. The petitioner gave reply denying the charges leveled against him. On conducting an enquiry, findings were given on 12.09.2012 to which the petitioner had given reply. It is on 26.11.2015 an order was passed by the respondent No.1 to the effect that the basic pay of the petitioner to the extent of two increments has been reduced without cumulative effect.
3. It is the grievance of the petitioner that the list of seniority in respect of Assistant Mechanical Engineers was 4 published on 11.11.2015. In the said list, the name of the petitioner appeared at Sl.No.32 and the name of the respondent No.3 at Sl.No.34. The respondent No.3 is much junior to the petitioner. The respondent No.3 has given the promotion to the post of the Assistant Mechanical Engineer to Divisional Mechanical Engineer on 11.01.2016 i.e., in the said promotion list, the respondent No.3 placed below the petitioner has been given promotion whereas the name of the petitioner was not figured in the said list of persons who have been promoted. It was submitted that the penalty order passed after a lapse of 38 months from the date of the road accident, the alleged misconduct committed by the petitioner, is wholly unjustifiable. Hence, this petition.
4. Learned counsel Sri. P. Vilas Kumar, appearing for the petitioner submitted that the alleged road accident in respect of the punishment dated 26.11.2015 had taken place five years prior thereto i.e., on 31.05.2010. The charge sheet issued in respect of the said alleged incident was vague 5 and hence the alleged enquiry which was conducted in respect of the said charge sheet and the punishment consequent upon such illegal charge sheet are vitiated and requires to be set aside. It was submitted that when there was shortage of crew i.e., shortage of drivers and conductors, the petitioner had no other option except to send the available driver for the routes. In order to overcome the lapses on the part of the Management in not recruiting the required staff, Circulars/Notifications are issued to shirk their responsibilities and to hold the officers responsible for such road accidents. The petitioner, Depot Manager at the relevant time, had deputed the drivers and conductors by exercising his discretion without any malafides. The punishment imposed on the petitioner is disproportionate to the charges leveled against him. No enquiry proceeding was conducted in accordance with law. With an ulterior motive to fix the petitioner for the road accident, the enquiry was conducted in a shabby manner, ultimately resulting in miscarriage of justice. Learned counsel placed reliance on the judgment of 6 this Court in the case of S.V. Kadanagoudar Vs. The Managing Director, Karnataka State Seeds Corporation, Banglore and Anr. in Writ Appeal No.5535/1998 dated 21.01.2002.
5. Learned counsel appearing for the respondent No. 2 by filing the statement of objections, submitted that as per the Corporation Circular No.16/2009 dated 31.03.2009, clear direction was issued to avoid accident relating to the buses of the Corporation that the driver who has not completed his five years of driving service shall not be entrusted with a duty of long distance driving instead he should be entrusted with a local area driving. As per the amended Order No.158/2009- 10 dated 20/24.04.2009, instead of five years of driving service it was reduced to three years of driving service at the Corporation for entrusting the long distance driving. This being the factual situation, the petitioner without following the Circulars/Directions negligently committed misconduct of duty in entrusting the bus bearing Registration No.KA-33-F- 7 70 to an inexperienced driver for a long distance driving from Surpur to Bengaluru on 29.05.2010. The said driver had joined to service as Driver-cum-Conductor prior to 01 year 08 months and he has been given only 03-04 days of driving duty as he was not a perfect and fit driver for long distance driving. As a result, the said driver caused the accident at Nayakana Hatti cross, near Challikere, wherein 30 passengers died at the spot and 34 passengers were severely injured. The said accident was caused because of the negligence of the petitioner in entrusting the bus to an inexperienced driver violating the Circular/ Directions. In the said misconduct, the charge sheet was issued, enquiry was conducted in a fair manner. Grave misconduct being proved having sympathy towards petitioner, the Corporation has imposed minimum punishment though he is liable for major punishment for such grave misconduct. The promotion to the petitioner has been given as per the guidelines and Promotion Policy dated 04.03.2005, no flaw has been committed by the Corporation in giving the promotion to the petitioner. It was 8 submitted that no representation has been submitted by the petitioner to the Corporation, challenging the promotion list, as such no writ petition is maintainable and the petitioner is not entitled for the reliefs claimed. Accordingly, sought for dismissal of the writ petition.
6. I have given my thoughtful consideration to the arguments advanced by the learned counsel appearing for the parties and perused the material on record.
7. It is not in dispute that the petitioner was working as a Depot Manager on 29.05.2010 and entrusted the work to the driver who had joined to service as Driver-cum-Conductor prior to 01 year 08 months to the date of road accident in question. The Circular/Directions dated 07.04.2010 clearly indicates, the depot manager to entrust the bus on a long distance driving to a driver who has minimum three years of experience of driving at the Corporation, so that the accident relating to the bus of the Corporation can be avoided. The explanation offered by the petitioner for entrusting the bus on 9 that ill-fated day to a driver, who was not qualified as per the Circular/Directions is for shortage of crew. This explanation of the petitioner cannot absolve him from the misconduct committed by him in violating the Circular/Directions. It is due to lack of experience of driving for a long distance, 64 innocent passengers travelling in the said bus were victimized. Out of 64 passengers, 30 passengers died on the spot and remaining 34 passengers have suffered grievous injuries.
8. It is on following the fair procedure of conducting enquiry and the guilt of the petitioner being proved, punishment of minor penalty, reducing the increments and the promotion for 01 year has been imposed. Clause-10 of the Circular No.1328 dated 04.03.2005 issued by the Corporation contemplates that besides the pending disciplinary matters, the Departmental Promotional Committee should also examine the penalties already imposed on the officer/ official and if any of the punishments 10 such as withholding increments, reduction in pay, reduction in rank, etc. are under currency against any of the officer/official, such officer/official should not be considered for promotion. The currency of punishment shall commence from the date of issue of the punishment order and shall be effective till the period of expiry of the punishment order so implemented. In the light of the said circular, the promotion of the petitioner has not been considered on par with his Junior, respondent No.3 for the post of Divisional Mechanical Engineer. Further, this is not the proper Forum to the petitioner to challenge the promotion sans making any representations before the Corporation. The Circular/Directions issued from time to time by the Corporation is binding on the employees and cannot be given a go bye to the same alleging malafides against the Management of the Corporation. No such Circulars or Notifications issued by the Corporation was challenged by the petitioner claiming to be illegal or irregular. The minor penalty imposed relying on the said Circulars would not be 11 considered as disproportionate to the proved misconduct. On the other hand, it is a sympathetic approach of the Corporation towards the petitioner who had served the Corporation for many years. Viewed from any angle, the petitioner is not entitled for the reliefs claimed.
9. Further, the judgment in the case of S.V. Kadanagoudar (supra), deals with the termination order passed after 06 years subsequent to the alleged misconduct. In such circumstances, it was held that termination was punitive in nature and such termination without enquiry was bad in law. Accordingly, it was ordered to reinstate the petitioner therein on regular basis with continuity of service, but without backwages. However, in the present case though after a period of 38 months of the date of the accident, an order has been passed by the respondent No.1 imposing the minor penalty to the extent of reducing two increments without cumulative effect, the same has been passed subsequent to conducting a fair enquiry. Hence, the said 12 judgment of S.V. Kadanagoudar, supra, is not applicable to the facts of the present case.
10. In the facts and circumstances, as aforesaid, no irregularity or perversity is found in the order impugned herein and the same requires to be confirmed. Accordingly, same is confirmed.
Hence, the writ petition stands dismissed as devoid of merits.
Sd/-
JUDGE BL Ct: RRJ