Andhra HC (Pre-Telangana)
Sambasiva Rao G. vs A.P.S.R.T.C. And Ors. on 30 December, 1996
Equivalent citations: 1997(1)ALT219
ORDER
1. An argument based on a startling hypothesis is putforth in this case by the learned counsel for the petitioner-workman. The hypothesis runs like this : In a disciplinary proceeding if an appellate authority imposes any penalty other than a penalty specified under the Certified Standing Orders or the Rules or the Regulations governing the disciplinary proceedings and if the validity of such action of the appellate authority is questioned in a writ proceeding, the High Court, as a matter of course and legal compulsion, should necessarily set aside the order of the appellate authority and direct reinstatement of the workman with continuity of service with full back wages, without going into the merits of the matter. The hypothesis is startling indeed ! But, Sri V. Viswanatham, the learned counsel for the petitioner-workman has least hesitation to advance such apparently awkward argument because according to him such reliefs were granted by this Court in number of cases and the facts of this case are fully covered by those decisions. Alas ! If the Court were to blindly rubber-stamp the hypothesis, the mother of the law with which we are concerned i.e., service and industrial law jurisprudence would bleed with agony.
2. The facts should be stated first. They are the following : The petitioner joined the services of the Andhra Pradesh State Road Transport Corporation as Conductor on June 26, 1975. In 1989 the petitioner was serving in Chilakaluripeta depot. On September 17, 1989 when he was conducting the bus on the route Chilakaluripeta to Guntur, a check was exercied by the officers of the checking squad at stage No. 2/3 at Pottur cross road. The checking officers detected certain cash and ticket irregularities. The matter was reported to the Depot Manager, A.P.S.R.T.C. Narasaraopet who is the disciplinary authority and who is arrayed as the fourth respondent in the writ petition. The disciplinary authority, not being satisfidd with the spot explanation offered by the petitioner, thought it necessary to proceed against the petitioner. Accordingly a charge-sheet was issued to the petitioner. The following were the charges :
"1. For having violated the rule 'issue and start'.
2. For having failed to issue tickets to two individual passengers, one boarded your bus at CPT and bound for Guntur Ex-Stages 1 to 3 and the other boarded at Ganapavaram bound for Guntur Ex-stages 1/2 to 3, from the passenger boarded at Ganapavaram you have collected Rs. 5/- towards fare and from the passenger boarded at CPT, you have collected Rs. 6/- while you were conducting the bus No. 3386 on the route Ch. pet-Guntur.
3. For having misused the chit pass issued in favour of your family members only, but misused the same with the above said two individual passengers.
4. For having instigated the passengers and obstructed them not to give their statements to checking officials.
5. For having denied to give your spot explanation in MTD-267 and to sign in the SR etc., at the time of check.
6. For having left the vehicle and absconded with bus cash without the notice of the TTIs, police and the service driver, while the statements of the passengers involved in this case were being obtained in the presence of the police personnel at Nagarampalem police station.
7. For having closed the SR upto stage No. 3(GNT) without completing the ticket issued, and
8. For the above said malafide act, the service bus was detained for about 4.00 hrs. which resulted the vehicle could not be pressed into operation and thereby loss caused to the revenues of the Corporation, besides inconvenience to the travelling public."
3. The Inquiring authority appointed by the disciplinary authority conducted enquiry and on appreciation of evidence led before him recorded the finding that all the charges are proved. On receipt of the enquiry report, the disciplinary authority issued second show cause notice dated March 9, 1990 to the petitioner proposing penalty of removal from service and calling upon the petitioner to submit his explanation, if any. The petitioner submitted his explanation on March 26, 1990. The disciplinary authority gave oral hearing to the petitioner on March 29, 1990 and his statement was also recorded. The disciplinary authority, not being satisfied with the explanation offered by the petitioner, passed final order on March 30, 1990 removing the petitioner from service as a disciplinary measure. The petitioner, being aggrieved by the order of the disciplinary authority, preferred an appeal to the Divisional Manager the third respondent herein. In the meanwhile the petitioner instituted I.D. No. 136/90 under Section 2-A(2) of the Industrial Disputes Act before the Labour Court, Guntur. According to the petitioner, when the Industrial dispute was pending, the third respondent appellate authority assured the petitioner to reinstate him into service if the petitioner were to withdraw the industrial dispute. At this stage itself it may be pointed out that in the counter affidavit filed by the Corporation authorities this allegation is specifically denied. The petitioner withdrew the industrial dispute on November 9, 1990. Thereafterwards the petitioner submitted another appeal to the third respondent on November 14, 1990. The third respondent by his order dated March 26, 1991 disposed of the appeal. The relevant portion of the order made by the third respondent reads :
"In total 8 charges were framed against the appellant and all the charges are proved beyond reasonable doubt. The D.M. is justified to remove the appellant from the rolls of Corporation.
The appellant is appointed in June, 1975 and he was awarded 6 censures and one order of increment in 14 years of service. In this case I am inclined to take lenient viev on the appellant because the punishment awarded to the appellant and the TI is not pro-portionate. The person who gave scope to defraud the revenues of Corporation is let free but the appellant who actually tried to defraud with the help of chit pass is taken up seriously.
Hence, the removal order passed by the DM is set aside and the appellant be reinstated and posted to Macherla depot to work for five years at Macherla. The following punishment is awarded to him.
Place him in the minimum scale of Conductor on reinstatement."
4. Thereafterwards the petitioner filed a review petition before the Regional Manager, the second respondent herein on April 29, 1991. The Regional Manager by his order dated January 27, 1992 rejected the review petition. Hence this writ petition assailing the validity of the order made by the Depot Manager on March 30, 1990 anc the order dated March 26, 1991 passed by the Divisional Manager.
5. Sri V. Viswanatham, the learned counsel for the petitioner would contend that reinstatement of an employee in the minimum scale is not one of the penalties specified in Regulation 8 of the Andhra Pradesh State Read Transport Corporation Employees (Classification, Control and Appeal) Regulations, 1967, for short 'C.C.A. Regulations' and therefore the order of the appellate authority is quite contrary to Regulation 8 and the appellate authority has no power to impose such penalty and therefore the order of the appellate authority is liable to be quashed. Further, the learned counsel would contend that the petitioner is entitled to be reinstated into service with continuity of service and full back wages. The learned counsel would point out that in similar circumstances and facts-situation this Court in W.P Nos. 20525/93, 11263/83 and 9786/94 and several other writ petitions granted similar reliefs. The learned counsel would also place reliance on the decisions of the Karnataka High Court in Nanjundaradhya v. Enquiry Authority 1985(3) SLR 592. On the other hand Sri C. V. Ramulu, the learned standing counsel for the Corporation would contend that the appellate authority while affirming the order of the disciplinary authority out of compassion and humanitarian grounds directed reinstatement of the workman in the minimum pay scale and therefore that relief granted to the petitioner cannot be treated as a penalty. Alternatively, the learned standing counsel would maintain that even if what the appellate authority did is considered to be a penalty only, even then that is a penalty specified in clause (vii) of Regulation 8(1) of C.C.A. Regulations. Further, the learned counsel would also maintain that the appellate authority need not necessarily impose only one of the penalties specified in Regulation 8 and it is permissible for the appellate authority to impose any other penalty which he deems adequate and appropriate having regard to the facts and circurnstances of the case.
6. Andhra Pradesh State Road Transport Corporation Employees (Conduct) Regulations, 1963, here-in-after shortly referred to as 'Conduct Regulations'and the Andhra Pradesh State Road Transport Corporation Employees (Classification, Control and Appeal) Regulations, 1967, hereinafter shortly referred to as 'C.C.A. Regulations, are framed by the Corporation by virtue of rule-making power granted to it under Section 45(1) of the Road Transport Corporations Act, 1950 after obtaining the previous sanction of the Government of Andhra Pradesh.
Regulation 28 of Conduct Regulations reads :
"28. General Provisions :
Without prejudice to the generality of the foregoing regulations, the following acts or omissions shall be treated as misconduct :-
(i) unauthorisedly using vehicles of the Corporation;
(ii) driving vehicles of the Corporation without possessing proper licence or without being authorised in writing to do so or allowing any other person to act in this manner;
(iii) collusion with any person or persons with a view to depriving the Corporation of its legitimate revenue;
(iv) abuse or misuse of property of the Corporation;
(v) loss of printed tickets, and loss of other forms;
(vi)(a) "Failure on the part of the Conductor/Booking Clerk to issue valid passengers/luggage ticket, in accordance with the order passed by the Corporation or any other authority under the Corporation from time to time, before starting or allowing a bus to be started from the point, where such passenger luggage, boarded or loaded as the case may be in respect of mofussil services, and before passing a Ticket Issue Completion Point, fixed from time to time in respect of City/town Services."
(b) failure, on the part of the checking staff to report offences on the part of conductors for ticketless travel or for non-issue of tickets;
(vii) failure to exercise efficient control and supervision on the subordinate staff, which has adversely affected the efficiency of the Unit;
(viii) insubordination or disobedience, whether individually or with another or others, to any lawful order of a superior Officer;
(ix)(a) gross negligence resulting in or likely to result in serious loss to the Corporation or inconvenience to the public or both;
(b) neglect of duty resulting in or likely to result in danger to the lives of employees or of their persons or both;
(x) theft, fraud, dishonesty or misappropriation in connection with the business or the property of the Corporation;
(xi) assaulting any person inside the premises or in the vehicles of the Corporation;
(xii) striking work or inciting others to strike work in contravention of the provisions of law in force for the time being;
(xiii) damage premises, vehicles or other property of the Corporation wilfully or due to negligence or connivance or failure to prevent such damage or loss;
(xiv) sabotage;
(xv) any act involving moral turpitude which is punishable under the provisions of the Indian Penal Code;
(xvi) intemperate habits affecting the efficiency of the work;
(xvii) breach of any administrative circulars or orders;
(xviii) riotous or disorderly behaviour or intimidation in the premises of the Corporation; or outside while on duty or any act subversive of discipline; this includes shouting of slogans criticising the Corporation or any of its servants and wearing "protest badges";
(xix) repeated or continued negligence or neglect of work;
(xx) meeting of the employees in the premises, vehicles or other property of the Corporation without the prior permission of the competent authority even though any subversive motive is not established;
(xxi) insolence, impertinence or unruly behaviour towards members of the public or any employee while on duty;
(xxii) failure on the part of an employee to give full and correct information regarding his previous history and record or regarding any matter connected with the Corporation in connection with any offence committed by himself or any other person, within his knowledge, when demanded by a superior Officer;
(xxiii) issue of used tickets to passengers;
(xxiv) excess cash found with a conductor or driver without proper explanation;
(xxv) under-issue of tickets, i.e., issue of tickets for less than the actual distance travelled by a passenger and failure on the part of a conductor to maintain records in the proper manner;
(xxvi) the making of an allegation, knowing it to be false, against the Corporation, a member of the Corporation or an Officer or member of the staff of the Corporation;
(xxvii) habitual late attendance, irregular attendance, absence without leave and without reasonable cause and absence without permission and wasting time or loitering while on duty;
(xxviii) misuse of any concession or facility such as free or concessional passes, etc., granted to its employees by the Corporation;
(xxix) over-speeding by a driver;
(xxx) tampering with or destroying the evidence relating to offences committed by the employee himself or another employee;
(xxxi) any other act not specifically mentioned above but which is prima facie detrimental to the interests of the Corporation;
(xxxii) violating any other specific rule or instructions of the Corporation in force.
Regulations 8 and 27 of C.C.A. Regulations read :
"8. Penalties :
(1) The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon an employee, namely :-
(i) censure;
(ii) withholding of the privilege of free passes or privilege ticket orders or both for travel on the railway or the bus services of the Corporation, as the case may be, in the case of employees to whom such privilege or privileges are admissible;
(iii) fine, in the case of persons for whom such penalty is permissible under these Regulations, vide sub-clause (3);
(iv) withholding of increments;
(v) recovery from pay of the whole or part of any pecuniary loss caused to the Corporation by an employee's negligence or breach of orders;
(vi) suspension, where a person has already been suspended under Regulation 18 pending enquiry into his conduct, to the extent considered necessary by the authority imposing the penalty;
(vii) reduction to a lower rank in the seniority list or to a lower post or timescale, whether in the same class of service or in another class, or to a lower stage in a time-scale;
(vili) removal from the service of the Corporation which does not disqualify from future employment;
(xi) dismissal from the service of the Corporation which ordinarily disqualifies from future employment.
xx xx xx xx
27. Duties of appellate authorities :
(1) In the case of an appeal against an order imposing any of the penalties specified in Regulation 8, the appellate authority shall consider -
(a) whether the procedure prescribed in these Regulations has been complied with;
(b) whether the findings are justified; and
(c) whether the penalty imposed is excessive, adequate or inadequate; and after such consideration, shall pass orders -
(i) setting aside, reducing, confirming or enhancing the penalty; or
(ii) remitting the case to the authority which imposed the penalty or to any other authority, with such directions, as it may deem fit in the circumstances of the case;
"xx xx xx xx"
7. The power to punish a delinquent conferred on the disciplinary authority and the appellate authority is a discretionary power and the question what is adequate punishment is a question of discretion. According to Black's Law Dictionary (5th Edition) discretionary power means "one which is not imperative or, if imperative, the time, manner or extent of execution of which is left to donee's discretion."
8. Discretion, when applied to public or statutory functionaries, means a power or right conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others.
Chief Justice Coke said :
"Discretion is a science or understanding to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections and opinions."
Lord Halsbury says :
"Discretion means when it is said that something is to be done Within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular and it must be exercised within the limit, to which a honest man competent to the discharge of his office ought to confine himself -"
9. Discretion implies power to make a choice between alternative courses of action. The need of discretion arises because of the necessity and expediency to individualise the exercise of power by the administration i.e., the administration has to apply a vague or indefinite provision from case to case. The sphere of judicial discretion includes all questions, as to what is right, just, equitable, or reasonable so far as not determined by authoritative rules of law but committed to the liberum arbitrium of the donees of power. A question of discretion is a question as to what ought to be, as opposed to a question of what is.
Salmond says :
"Matters of right and judicial discretion are not the subject of evidence and demonstration, but of argument, and are submitted to the reason and conscience of the Court -
in determining questions of judicial discretion it seeks to discover the right or justice of the matter."
10. In the matter of judicial or quasi judicial discretion it is the duty of the donee of the discretionary power to exercise his objective moral judgment, in order to ascertain the right and justice of the case. It is a basic and essential rule of the exercise of discretionary power that discretion must be brought to bear on every case; each case must be considered on its own merits and decided as the public and administrative interest requires. In enforcing this rule, the Courts are underlining the difference among judicial, quasi-judicial and administrative processes. Prof H.W.R. Wade in his book "Administrative Law" (6th Edition) after referring to the decisions in Mercandise Transport Limited v. British Transport Commission 1962 2 Q.B. 173 and R v. Greater Birmingham Appeal Tribunal ex.p. Simper 1974 Q.B. 543 writes :
"The legal rights of litigants are decided according to legal rules and precedents which are sometimes held to prevail over the Court's own opinion. But if an administrative authority acts in this way this decision is ultra vires and void. It is not allowed to 'pursue consistency at the expense of the merits of the individual cases, This doctrine is applied even to statutory Tribunals, despite their resemblance to Courts of law."
11. When a Statute confers power on an authority to apply a rational standard, as in the case of administrative discretion, it is expected of it to apply it from case to case, and not to fetter its discretion by declaration of rules or policy to be followed by it uniformly in all cases. What is expected of the authority is that it should consider each case on its merits and then decide it one way or the other. If, instead, it lays down a general rule to be applicable to each and every case, then it is preventing itself from exercising its mind according to the circumstances of each case and this amounts to going against what the Statute had intended the authority to do. In Kesavan Bhaskaran v. State of Kerala the relevant rule provided that no school leaving certificate would be granted to any person unless he had completed 15 years of age. The Director of School Education was however given power to grant exempion from this rule in deserving cases under certain circumstances. But intact, the Director had made an invariable rule of not granting exemption unless the deficiency in age was less than two years by issuing circulars. The Kerala High Court held that the rule of policy issued by the Director was contrary to law. The crux of the matter, therefore, is that the authority may lay dawn general policy but it must reserve the right to consider case (sic) each on its merits.
12. However, discretionary power may be regulated or limited or controlled by the law which grants such power by defining limitations. The essence of a discretionary power is that despite limitations and restrictions imposed on it, the donee of the power should be left free to operate his moral judgment within the restricted sphere so allowed to him. If the whole sphere is pre-determined or standardized by law itself, the power granted to implement the law cannot be a discretionary power. For example, the question what is the proper penalty for an offence is usually a question of discretion. The law may impose a fixed maximum or a fixed minimum or both, but leaves the discretion of the donce of the power to operate within the limits so defined. Limits of discretionary power can be implied even in the absence of explicit limits in the law which grants power. For example, certain limitations flowing from Article 14 of the Constitution of India, such as administrative action should be fair, reasonable and not arbitrary can be read into the discretionary power, even in the absence of explicit limitations in those terms in the parent Act which grants discretionary power.
13. Regulation 28 of Conduct Regulations defines 'misconduct' under 32 heads. If one takes sub-beads of misconduct also into account, the number of heads of misconduct becomes numerous. In Regulation 8 of C.C.A. Regulations, only 11 penalties are specified. Regulation 8 of C.C.A. Regulations does not specify a particular penalty to each and every misconduct envisaged under Regulation 28 of Conduct Regulations. Regulation 8 of C.C.A. Regulations provides that the penalties specified in that Regulation may, for good and sufficient reason, be imposed upon a delinquent and it does not mandate that the disciplinary authority should always and necessarily impose only those penalties specifically enumerated in clauses (i) to (xi) of Regulation 8(1). Regulation 9 of C.C.A. Regulations deals with circumstances under which different penalties specified in sub-regulation (1) of Regulation 8 may be imposed on the delinquent. The opening words of Regulation 9, viz., "without prejudice to the generality of the provisions of Regulation 8" are very significant for the reason that they clearly indicate that the penalties specified in sub-regulation to (1) of Regulation 8 are general in nature. In other words, the penalties specified in sub-regulation (1) are not exhaustive but they are only general in nature. The combined reading of the provisions 15 of Regulations 8 and 9 of C.C.A. Regulations and Regulation 28 of Conduct Regulations makes it very clear that after the conclusion of the departmental enquiry, the disciplinary authority, having regard to the nature of the misconduct proved against the delinquent and taking into account all the attending facts and circumstances of the case, should decide as to what should be the adequate and appropriate penalty. When the disciplinary authority applies its mind accordingly and comes to the conclusion that one of the specified penalties in sub-regulation (1) of Regulation 8 is adequate and reasonable penalty, then, there will not be any problem to award such penalty. On the other hand in a given case after such application of mind if the disciplinary authority thinks that "X" penalty is an adequate and reasonable penalty but that "X" penalty is not one of the penalties specified in sub-regulation(l) of Regulation 8, what should the disciplinary authority do ? In such facts-situation, if the Court were to hold that despite the satisfaction of the disciplinary authority that "X" penalty is the proper and adequate penalty, he should impose only one of the penalties specified in sub-Regulation (1) of Regulation 8 and not any other, then, the discretionary power to choose an appropriate and adequate penalty vested in the disciplinary authority would be violated. A power without freedom or right to choose will never be a discretionary power. In the content of the present case, one may argue that the power of the disciplinary authority to choose is not taken away altogether by requiring him to impose only one of the penalties specified in Regulation 8(1) of C.C.A. Regulations; he can still choose one among eleven penalties. In appreciating such argument, the Court should not fail to notice the other cardinal principle governing punishment. It is well settled that penalty imposed on a delinquent should be reasonable, fair and proportionate to the gravity of misconduct committed by the delinquent. Therefore, in the context of disciplinary proceedings, the freedom or right to choose a penalty means the freedom or right to choose a right, appropriate and proportionate penalty. In a given case, if the disciplinary authority chooses a right and proper penalty and Industrial Court or High Court also finds that that penalty chosen by the disciplinary authority is a right and proper penalty, the penalty imposed by the disciplinary authority cannot be set aside only on the ground that the penalty is not one of the penalties specified in Regulation 8(1) of C.C.A. Regulations. If the Court sets aside, then, technicality will overtake substantive justice resulting in injustice. Technicality may be employed to do justice, not to thwart justice. To do complete justice inheres in every Court of law and justice, and the duty of Courts is to do complete justice. No compromise can be made in enforcing this rule on technical grounds.
14. C.C.A. Regulations do not specify minimum or maximum penalty in respect of each and every kind of misconduct. However, if the penalties specified in sub-Regulation (1) of Regulation 8 are taken to be the penalties for misconduct as a whole, then'censure' is the minimum penalty and 'dismissal from service' is the maximum penalty. If that is so, the disciplinary authority and the appellate authority should have discretion to impose not only any of the penalties specified in sub-regulation (1) of Regulation 8 but also any othe unspecified penalty which could validly be treated as the one which falls within the limits of the minimum and the maximum penalties. The disciplinary authority and appellate authority cannot be stripped of freedom to choose and impose prope and adequate penalty on a delinquent only on the ground that what they think as adequate penalty is not one of the specified penalties, and if tha freedom is denied on that ground, the essence of discretionary power to operate within the limits will be lost, and standardization will replace discretion. Standardization and discretion cannot co-exist. Standardization leaves no room; discretion has always a room to operate. A counsel, surcharged with only logic, may contend that logic mandates that the disciplinary authority cannot award any punishment other than the one specified in Regulation 8(1). The Holmesian homily is that the life of law is not logic but experience. Undoubtedly logic plays an important role in judicial and quasi-judicial decision-making, but logic should play the role of a logician and not the role of a Judge in the decision-making. In the ultimate analysis, the decision to be taken either by the disciplinary authority or by the appellate authority should rest on reasons and justice perception, and not necessarily on logic and never on technicalities divorced from justice. Therefore, I hold that it is open to the disciplinary authority under the C.C.A. Regulations to impose not only a penalty specified in Regulation 8(1) but also any other penalty which he thinks it adequate, appropriate and reasonable provided such penalty falls within the limits of minimum and the maximum penalties enumerated under Regulation 8(1) of C.C.A. Regulations.
15. Now let me advert to Regulation 27 of C.C.A. Regulations which deals with the duties of an appellate authority. Clause (c) of Regulation 27(1) mandates that the appellate authority shall consider whether the penalty imposed is excessive, adequate or inadequate; and after such consideration, shall pass orders setting aside, reducing, confirming or enhancing the penalty. Therefore, the appellate authority is charged with a duty to examine whether the penalty impose by the disciplinary authority is excessive, adequate or inadequate and after application of mind and consideration of all relevant materials and evidence, if it finds that the penalty is excessive, it is armed with necessary power to reduce the penalty. The terms 'excessive' 'adequate' or 'inadequate' are relative terms in value space, place and time, and, therefore, the question whether the penalty imposed by the disciplinary authority is excessive, adequate or inadequate has to be decided having regard to the facts and circumstances of each case. What is considered to be adequate penalty in a given set of circumstances may be excessive penalty in another set of facts and circumstances. Therefore, standardization is not permissible while exercising discretionary power. If the appellate authority acting under Regulation 27 of C.C.A. Regulations, after due consideration of facts and circumstances of the case and application of mind, thinks that "X" penalty is an adequate and reasonable penalty and the penalty imposed by the disciplinary authority is excessive, should he be deprived of the power to substitute "X" penalty in the place of the penalty imposed by the disciplinary authority only on the ground that "X" penalty is not of the specified penalties under Regulation 8(1) ? For the same reasons stated by me supra, the appellate authority has power to impose "X" penalty provided "X" penalty in the facts and circumstances of the case is found by the Court to be a fair and adequate penalty. If it is held otherwise, the essence of discretionary power vested in the appellate authority to choose an adequate penalty will be lost. Therefore, I hold that it is permissible for an appellate authority under Regulation 27 of C.C.A. Regulations to impose even a non-specified penalty in substitution of the specified penalty imposed by the disciplinary authority provided such penalty is the one which falls between the minimum and the maximum penalty enumerated in Regulation 8(1) of C.C.A. Regulations.
16. In the light of the principles referred to above and construction of the Regulations, now let me deal with the concrete facts of this case and the decisions on which the learned counsel for the petitioner placed reliance. The appellate authority to use his own language held that "all the charges are proved beyond reasonable doubt and the Depot Manager (Disciplinary authority) is justified in removing the appellant from the rolls of Corporation." Therefore, it is manifestly clear that the appellate authority concurred with the findings of fact recorded by the disciplinary authority and also approved the quantum of punishment imposed by the disciplinary authority. The appellate authority having recorded such satisfaction, however, directed reinstatement of the workman into service in the minimum scale of pay of conductor on the ground that the Traffic Inspector who gave scope for the petitioner to defraud the revenues of the Corporation was let off taking lenient view. The observations of the appellate authority reflect that he directed reinstatement of the petitioner into service on compassionate grounds and not on merits. In similar facts-situation, a Division Bench of this Court in P. Habeeb Saheb v. Andhra Pradesh State Road Transport Corporation (1995-II-LLJ-290) speaking through A. Lakshmana Rao, J., as he then was, construed a similar order made by the Regional Manager of the A.P.S.R.T.C. in a review petition filed by the delinquent therein to be a composite order consisting of two parts. In that case the reviewing authority after recording the satisfaction that there was no need to interfere with the orders in of the Depot Manager-Disciplinary authority, but on compassionate grounds and taking a lenient view directed the Depot Manager to appoint the delinquent as conductor afresh. The argument of the learned counsel for the delinquent in that case was that the direction of the reviewing authority to appoint the delinquent as conductor afresh was a modified punishment and that modified punishment is not one of the punishments contemplated under Regulation 8 of C.C.A. Regulations and therefore, the same could not be sustained in law. The Division Bench while rejecting that argument pointed out that the order passed by the reviewing authority consisted of two parts, namely, the first part related to the confirmation of the order of removal passed by the disciplinary authority and the second part related to a direction for appointment as a fresh candidate. The Division Bench also pointed out that the order of removal passed by the disciplinary authority was no bar for appointment of the delinquent as a fresh candidate. The opinion expressed by the Division Bench squarely covers the facts of this case also. Another judgment of the Division Bench of this Court in K. Dayanand v. The Depot Manager, APSRTC (1994-II-LLJ-154) also clearly indicates that the appellate authority can pass a composite order consisting of two parts; one part affirming the decision of the disciplinary authority and the other directing fresh appointment of the delinquent on compassionate ground.
17. It is not the argument of the learned counsel for the petitioner that the findings recorded by the appellate authority on the charges are erroneous. At the time of hearing the Court pointedly asked the learned counsel for the petitioner as to whether he had to say anything touching merits of the matter and the learned counsel replied that he had no argument to assail the validity of the findings recorded by the inquiring authority, the disciplinary authority and the appellate authority on the charges or the quantum of punishment imposed by the disciplinary authority. That means the petitioner has no grounds whatsoever on merits to assail the action of the disciplinary authority or the appellate authority, and the writ petition is grounded only on technicalities, rather teciinical tortures. Technicality is the unfailing resource of an Indian litigant. Parties should win or lose on substantial grounds, not on technical tortures and Courts cannot be abettors. To maintain the integrity of law, the Court must "suit the action to the word, and the word to the action". Tlial is what Krishna Iyer, J., emphasized in S. B. Noronah v. Prem Kumari .
18. The submission of the learned standing counsel, for the Corporation that even assuiing that the order passed by the appellate authority is a modified punishment even then that modified punishment squarely falls within the punishment, enumerated in clause (vii) of Regulation 8(1) of C.C.A. Regulations is well-founded. The effec of the order made by the appellate authority is that the delinquent is entitled to be reinstated into service in the minimum scale of pay of conductor. Clause (vii) of Regulation 8(1), among other things, provides for imposition of a penalty of reduction "to a lower stage in time scale." The delinquent, by virtue of the order of the appellate authority, is required to be reinstated into service in the time scale of conductors but he has to be placed in the lowest stage in the same time scale of conductor. In other words the effect of the order of the appellate authority is to reduce the petitioner from a higher stage to a lower stage in the time scale of conductors and that penalty falls within the penalty specified in clause (vii) of Regulation 8(1) of C.C.A. Regulations.
19. The decisions cited by the learned counsel for the petitioner are in no way helpful to his client. I do not find any necessity to refer to the facts of all the cases. Suffice it to state the facts of thie case and the decision taken in Md. Chabbr, Hussain v. APSRTC and Another (W.P. No. 20525 of 1993 decided on November 30, 1994) wherein the decisions taken by the learned single Judge of this Court in certain other writ petitions are referred to. It is true that in that case the disciplinary authority had removed the petitioner therein as a disciplinary measure and in the appeal, the appellate authority directed reinstatement of the delinquent into service afresh as driver, and questioning the order of the appellate authority the writ petition was filed. The said writ petition was disposed of by P. Rama Krishnam Raju, J. and the order passed by His Lordship reads :
"The petitioner was appointed as Driver in the APSRTC in 1966 and was working as such since then. He was issued a show cause notice for removal from service on July 7, 1991. He submitted an explanation, he was assigned the duty. But later, he fell sick and could not attend the duty and the 2nd respondent passed the impugned order of removal. Questioning the same, the petitioner preferred an appeal before the 1st respondent. The 1st respondent, without observing in any clear terms as to whether he finds the petitioner guilty or not, simply passed an order dated June 27, 1993 stating that in view of the clear record of 26 years, the petitioner must be given an opportunity by reinstating him into service afresh as Driver. Questioning the said order, the petitioner filed this writ petition.
Mr. H. Srinivasa Rao, the learned counsel for the petitioner relying on two decisions of this Court in W.P. Nos. 11263 of 1983 and 9786 of 1984, November 24, 1987 and February 3, 1987 respectively, contends that the Appellate Authority has no jurisdiction to impose the punishment by reinstating the petitioner into service afresh. According to the learned counsel, Regulation 27 of the Classification, Control and Appeal Regulations does not enable the appellate Authority to impose such a punishment. In those two writ petitions also, this Court found that the Disciplinary Authority has no jurisdiction to impose penalty of appointing the delinquent afresh. In fact, the Chief Personnel Manager also issued instructions as early as on June 4, 1982 that fresh appointment by way of disposal of an appeal against the removal or dismissal order is improper, since the Regulation does not permit of such appointment. In view of this, I am of of the view that the imposition of punishment by way of fresh appointment is unwarranted and without jurisdiction.
Sri Kota Bbaskara Rao, the learned Standing Counsel for the APSRTC brought to my notice a decision of a Division Bench of this Court in G. Dayanand v. APSRTC 1993(1) ALT 167 in support of his contention that such a course is permissible. In that judgment no doubt, the Division Bench of this Court found that the Appellate Authority has agreed with the punishment imposed by the Primary Authority, but still, out of compassion, an order of fresh appointment was directed. Therefore, there is no violation of the Regulation. This decision cannot, in my view, offer analogy for this case.
For the above reasons, the writ petition is allowed and the petitioner is entitled for his seniority. No costs."
20. The order is essentially based on the reliefs earlier granted in W.P. No. 11263 of 1983 and W.P. No. 9786 of 1984. I have perused the decisions and the reliefs granted by this Court in the aforementioned two other writ petitions also. In none of the decisions I find any treatment of the relevant Conduct Regulations and C.C.A. Regulations and the fundamental principles governing discretionary power and questions of discretion. In W.P. No. 20525 of 1993 the writ petition was allowed and it was declared that the petitioner-delinquent therein was entitled to seniority. The effect of this order, keeping in mind the reliefs sought in that writ petition, was that the petitioner was entitled to be reinstated into service with continuity of service and back wages. The only reason given by the learned Judge in that case is that the imposition of punishment by way of fresh appointment was unwarranted and without jurisdiction. The learned Judge did not review the merits of the matter, and only on the ground that the appellate authority had modified the punishment and imposed a punishment not specified in Regulation 8(1) of the C.C.A. Regulations, all the reliefs were granted to the workman. It is totally against all canons of law and justice to direct reinstatement of a delinquent into service with all attendant benefits and back wages solely on the ground that the appellate authority or the reviewing authority has imposed a penalty other than a penalty specified in Regulation 8(1) of C.C.A. Regulations without reviewing the merits of the case. I trust, I need not cite authorities in support of this opinion. There is nothing res integra. The law is well-settled.
21. The very broad proposition laid down by M. Rama Jois. J. as he then was, of Karnataka High Court in Nanjundaradhya v. Enquiry Authority (supra) that the appellate authority or the revisional authority should have selected one or the other penalties specified in Rule 6 of the Railway Discipline and Appeal Rules, and that forfeiture of past service not being one of the penalties prescribed under Rule 6, no such penalty could be imposed on a delinquent in a disciplinary proceeding, with respect, is not acceptable to me for the reasons already stated supra. However, that case can be distinguished on facts.
22. Adverting to the argument of the learned counsel forthe petitioner that the facts of this case are "fully covered" by the decisions of P. Rama Krishnam Raju J. in Md. Chabbir Hussain's case (supra) and the other cases referred to in that decision, I may repeat only what I said in para 26 of the Judgment in Sujana Granites v. Mandava Rambabu . I said :
"A statement in a judgment, in order to be a ratio, a particular point or question should be addressed to the Court for consideration and resolution; the Court should apply its mind to that question in the premise of the law governing the question, and state the principle to resolve that question and pronounce its opinion on the basis of such principle. Then only such statement becomes a ratio, not otherwise. A ratio is the rationale of a decision, the decision itself is not the ratio. Therefore, mere conclusion of a Judge without stating the principle as the basis for the conclusion cannot be a ratio. Similarly, the relief granted to a party without the involvement of any principle cannot be equated to a ratio. The following observations of the Supreme Court in State of U. P. v. Synthetics and Chemicals Ltd. are quite opposite;
"........... the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio." A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its inind." (Salmond on Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd., 1941 1 KB 675, 677 the Court did not feel bound by earlier decision as it was rendered 'without any argument without reference to the crucial words of the rule and without any citation of the authority.' It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur . The Bench held that, 'precedents sub-silentio and without argument are of no moment.' The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi."
23. The Supreme Court in B. Shama Rao v. Union Territory of Pondicherry held that "a decision is binding not because of its conclusions but in regard to its ratio and the principles laid down therein."
Ratio decidendi is rationale of a decision and I do not find any rationale in the decisions cited by the learned counsel for the petitioner, and therefore there is no scope for application of the Stare decisis doctrine.
24. In the result and for the foregoing reasons the writ petition fails and it is dismissed. No costs.