Andhra HC (Pre-Telangana)
G.V.M. Reddy vs Andhra Pradesh State Road Transport ... on 6 November, 1992
Equivalent citations: 1992(3)ALT649, (1993)ILLJ549AP
ORDER
1. The petitioner herein joined service as servant and was promoted as Conductor in the transport wing of Tirumala Tirupati Devasthanam (for short 'TTD'), Tirupathi. The said transport undertaking was taken over by the Andhra Pradesh State Road Transport Corporation (for short 'APSRTC') in pursuance of the agreement date August 8, 1975. The Depot Manager, A.P.S.R.T.C. at Tirumala passed an order on July 4, 1988 suspending the petitioner pending enquiry. The said order of suspension was challenged in W.P. No. 11168 of 1988 by alleging that the petitioner continued to be the employee of the 'TTD' and the authorities in APSRTC have no power to initiate disciplinary proceeding against him.
2. The Depot Manager, APSRTC, Tirupathi i.e., the respondent therein issued show cause notice dated May 31, 1989 requiring the petitioner to explain as to why he should not be removed from service. The said show cause notice is assailed in this writ petition. On June 14, 1989 the respondent passed an order removing the petitioner from service and it was served on him on June 17, 1989. In view of the subsequent circumstances, the petitioner filed W.P. M.P. No. 7710 of 1989 seeking permission to amend the prayer for quashing the order of removal from service dated June 14, 1989 and the same was allowed on July 19, 1989.
3. The charges which were framed as against the petitioner as per the removal proceedings dated June 14, 1989 are :
Charge No. 1 : "For having collected the requisite fare of Rs. 1.25 each from a batch of two passengers who boarded your bus at Renigunta and found alighting at Tirupathi CBS., ex-stages 3 to 1, which is a misconduct under Reg. 28(vi)(a) of APSRTC Employees Conduct Reg. 1963."
Charge No. 2 : "For having closed the tray Nos. of all the ticket blocks in the SR upto stage No. 1, without completing the ticket issues, while conducting the bus on route Kandada to Tirupathi on December 21, 1988, which is a misconduct under Reg. 28 (xxxii) of APSRTC Employees Conduct Reg. 1963."
Charge No. 3 : "For having violated the rule 'Issue & start', while you were conducting the bus on route Kandada to Tirupathi on December 21, 1988, which is a misconduct under Reg. 28 (xxxii) of APSRTC Employees Conduct Reg. 1963."
4. It is stated for the respondent that after due enquiry, all the three charges were held as proved and hence the petitioner was removed from service by order dated June 14, 1989.
5. The contentions for the petitioner are twofold : (1) The employees in the erstwhile transport wing of TTD are not the parties to the bipartite agreement dated August 8, 1975 and hence the petitioner and the other employees of the said transport wing are not bound by the terms of the said agreement and as such the petitioner continues to be the employee of the TTD; and (2) The punishment by way of removal for the charges said to have been proved is disproportionate to the misconducts said to have been proved and hence it is liable to be quashed.
6. The contentions for the respondents are that in pursuance of the agreement dated August 8, 1975, the transport undertaking of TTD along with the buses and staff were taken over by the APSRTC and from that time the employees who continued to work in the said Transport wing had become the employees of the APSRTC. It is only the APSRTC that is paying the salaries to the petitioner and the other employees of the erstwhile transport wing of TTD who continued to work under APSRTC. Thus, the contention that the petitioner is not the employee of the APSRTC, merely because the employees had not joined in the agreement dated August 8, 1975, is baseless.
7. The Supreme Court held in Roshan Lal v. Union of India 1968 - I - LLJ - 576 that though the origin of Government service is contractual, but once appointed to his post or office, the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties but by statute or statutory rules which may be framed and altered unilaterally by the Government and thus the legal position of a Government servant is more one of status than of contract. The same principle was extended to those who joined in service in Osmania Medical College-Vide Dr. Mohd Hyderkhan v. State of A.P. 1983 (2) And. W.R. 60. There the petitioner joined service in Osmania Medical College before the administrative control was transferred to the Government. Therein it was observed that under the Charter of University issued on December 18, 1947 all teachers and other officers employed in the colleges and other institutions maintained by the University shall be deemed to be Officers holding appointments under the Government and shall in all respects be governed by the rules framed by the Government in force for the time being in respect of such Officers and on November 26, 1949 when the University was made corporate body, the Charter was again amended and the privileges and conditions of University services were re-affirmed stating, 'all teachers and other officers and servants employed in the University including the constituent colleges and other institutions maintained by the University shall be deemed to be in service of the University and shall in all respects be governed by the statute or the regulations made in this behalf by the University Council and approved by the Chancellor'. In view of such provision, it was held that the conditions of service were made by the then Government of Hyderabad which is a Legislative Act and the rights conferred upon such Act of Legislature cannot be modified or curtailed by a mere administrative order. In that case while the petitioner therein joined service in the Medical College as Lecturer on March 7, 1952, the administrative control of the Osmania Medical College was transferred to the Government on June 27, 1952. As the conditions of service of the teaching staff of the Osmania Medical College by the date of appointment of the petitioner therein were formulated by a Legislative Act, it was held therein that the petitioner has statutory rights which cannot be altered unilaterally by the administrative action.
8. But in this case the transport wing of TTD was started in 1945 and thereafter the petitioner was appointed as a servant in that transport wing and later promoted as Conductor. By the agreement dated August 8, 1975 between the TTD and the APSRTC., the transport wing of the TTD was taken over by the APSRTC., and then the petitioner was also taken over into the establishment of APSRTC along with other employees of the Transport Wing of TTD. The contention for the petitioner that the employees of the Transport Wing of TTD were not the parties to the agreement dated August 8, 1975 was not challenged.
9. But the learned counsel for the petitioner had not drawn my attention to any statutory provisions to contend that the petitioner got statutory right after he became an employee of the TTD just as in the case of the teaching staff and other employees of the College affiliated to Osmania University after the Charter of Osmania University was amended on November 26, 1949. Thus the decision in Dr. Mohd. Hyder Khan, Superintendent, Gandhi Hospital and Professor Gandhi Medical College, Hyderabad v. State of A.P., Rep. by the Secretary to Government, Medical & Health Department, Govt. of Andhra Pradesh (supra) is not helpful to the petitioner.
10. When the relationship of the employer and employee is contractual, it is not open to the employer to transfer the service of his employee to another employer without the consent of that employee, vide Pyarchand Kesarimal Porwal Bidi Factory v. Omkar Laxman Thenge & Others 1970 - I - LLJ - 492 (SC). But in case of transfer of undertakings, the workmen therein can be taken over by the transferee undertaking. In such a case, Section 25-FF of the Industrial Disputes Act is attracted. It is not necessary to obtain the consent of the workmen in order to transfer such undertaking. The rights of the employees of such undertaking are as envisaged under Section 25-FF of the I.D. Act. If the terms and conditions of service applicable to the workman, after such transfer, are not in any way less favourable to the workman than those applicable to him immediately before the transfer, and if the service of workman had not been interrupted by the said transfer and if the new employer is under the terms of such transfer or otherwise legally liable to pay to the workman in the event of his retrenchment, compensation on the basis that his service was continuous and has not been interrupted by the transfer, then the workman of the undertaking who was take over by the new employer by transfer of such undertaking is not entitled to compensation as contemplated under Section 25-FF of the I.D. Act. But if the workman of such transferred undertaking is not taken by the new employer or if the workman of such undertaking was not willing to join service under the new employer, or when such workmen in undertakings were taken by the new employer without satisfying all the three conditions referred to in proviso to Section 25-FF of the I.D. Act, then the workmen of such undertaking are entitled to the notice pay and compensation as envisaged under Section 25-FF of the I.D. Act.
11. Hence by analysing Section 25-FF of the I.D. Act, it can be stated as under : The ownership or Management of the undertaking may be transferred, whether by agreement or by operation of law. If it is by agreement between the employer and the new employer, the consent of the workmen coming within the purview of Industrial Disputes Act of such undertaking need not be obtained. The workmen of such undertaking are entitled to only the notice and compensation as provided under Section 25-FF of the I.D. Act, if they do not come within the ambit of proviso to S. 25-FF of the I.D. Act. If the workmen of such transferred undertaking are continued in service by the new employer, such workmen have no right to urge that they continued to be the workmen of the transferor employer. If such workman feels that his conditions of service under the new employer are less favorable than those applicable to such workman immediately before the transfer, then his right is only to claim the notice pay and compensation under Section-25FF of the I.D. Act and he cannot urge that he continued to be the workman of the transferor employer even after the undertaking was transferred to the new employer under whom he worked from the date of transfer.
12. It is not in dispute that the petitioner herein is a workman u/s 2(s) of the I.D. Act. In fairness to the petitioner it had to be stated that he himself alleged in the affidavit in support of the writ petition that Section 25-FF(2) of the I.D. Act is applicable to him. When admittedly there was a transfer of transport wing of TTD i.e., the undertaking from TTD to APSRTC in 1975 and when the petitioner herein along with other workmen of that undertaking was taken by APSRTC, he had become the workman of APSRTC from the date of said transfer i.e., from the year 1975, and he ceased to be the workman of TTD from that date. Thus, there is no force in the contention of the petitioner that even after the said transfer, he continued to be the employee of the TTD i.e., the transferred employer. In this writ petition the petitioner challenged the competency of the disciplinary authority in APSRTC to initiate action against him by alleging that he was the workman of TTD but not the APSRTC. The question as to whether the petitioner is entitled to notice and compensation as provided under Section 25-FF and the I.D. Act does not fall for consideration in this writ petition, and so it is not necessary to advert to the contentions of the petitioner that some of the conditions of service under the APSRTC are less favorable than those which were enjoyed by him when he was the workman of the TTD. Hence I am not going to consider the same for disposal of this writ petition. But suffice it to observe that the petitioner had become the employee of the APSRTC from the date the transport wing of TTD was taken over by the APSRTC, and he ceased to be the workman of TTD from that date.
13. The learned counsel for the petitioner had not drawn my attention to any part of the record to establish that the enquiry that was conducted was not in accordance with the rules or that there was non-compliance of the principles of natural justice. Hence, the enquiry that was conducted had to be held as proper.
14. The Enquiry Officer held that the charges were held as proved and the Disciplinary Authority accepted the same and there is nothing to indicate that the said findings are not supported by evidence.
15. One of the contentions for the petitioner is that the punishment awarded is disproportionate to the misconducts said to have been proved. Section 11-A of the I.D. Act is an exception to the general principle that it is not for the Courts or the Tribunals to consider whether the punishment awarded is excessive. It means that when once the serious misconduct is established, it is for the employer to award necessary punishment and it is not for the Court or Tribunal to interfere with such punishment. But Section 11-A of the I.D. Act confers power upon the Labour Courts, Tribunals and National Tribunals to give even a relief to the workman by way of lesser punishment in lieu of the discharge or dismissal as the circumstances of the case may require. But whether such a power can be exercised by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India is a matter for consideration. When I observed whether the petitioner would move the Labour Court under Section 2-A, if this writ petition is going to be dismissed on the ground that the disciplinary authority in APSRTC has the power to initiate the action against the petitioner, it was submitted for the writ petitioner that as his dismissal was about 4 years back, there would be further delay if he is forced to move the Labour Court u/s. 2-A of the I.D. Act on the ground that it will be disproportionate to the misconduct said to have been proved, and hence the same may be considered in this writ petition.
16. It may be noted that it is not a case where the writ petition was filed for merely challenging the quantum of punishment. The main contention that was raised in the writ petition is that the petitioner continued to be the employee of the TTD even after the transfer of transport wing of APSRTC, though he worked under the APSRTC after the said transfer. So I feel that as there would be further delay if the petitioner is driven to move the Labour Court under Section 2-A of the I.D. Act, it is just and proper to consider the plea that the punishment by way of removal is disproportionate to the misconducts said to have been proved in this writ petition itself.
17. All the three charges arise out of one and the same act of the petitioner failing to issue tickets for the amount of Rs. 2.50 received from the two passengers and thus misappropriating the same. In view of the same, it is just and proper to set aside the order of removal and to order reinstatement of the petitioner into service by treating the period from the date of removal till the date the petitioner reports for duty as leave without pay. R-1 has to give the order of posting to the petitioner by November 30, 1992.
18. The writ petition is ordered accordingly. No costs.