Telangana High Court
L. Raji Reddy Died Per Lr vs Telangana State Road Transport ... on 7 July, 2023
Author: Juvvadi Sridevi
Bench: Juvvadi Sridevi
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
WRIT PETITION Nos.18800 of 2019 AND 22387 of 2019
COMMON ORDER:
Since the facts of the case, issue involved and the parties to both these writ petitions are one and the same, both these writ petitions are taken up together and are being disposed of by way of this common order.
2. During the pendency of both these writ petitions, the petitioner died and his legal representative (wife) was brought on record as the petitioner No.2 in both these writ petitions.
3. W.P.No.22387 of 2019 is filed by the petitioner to declare the order in Proceedings No.E1/1(24)/18-KR-I, dated 01.10.2019 passed by the Respondent No.3 in removing the petitioner from service as illegal, unjust, arbitrary and in violation of principles of natural justice.
4. W.P.No.18800 of 2019 is filed by the petitioner seeking the writ of mandamus declaring the order passed by the Respondent No.1 in Proceedings No.W4/479(19)/2018-T&W, dated 12.03.2019 rejecting the request of the petitioner to provide employment to his son under Medical Invalidation Scheme as illegal, unjust, arbitrary and in violation of principles of natural justice and consequently direct the 2 Justice Juvvadi Sridevi WP Nos.18800 of 2019&22387 of 2019 respondents to provide employment to the son of the petitioner under Medical Invalidation Scheme by taking into consideration the medical invalidation of the petitioner at the preliminary level, by granting all consequential benefits.
5. I have heard the submissions of Sri A.K.Jaya Prakash Rao, learned counsel for the petitioner in both these writ petitions, Sri Gaddam Srinivas, learned Standing Counsel for Telangana State Road Transport Corporation representing the respondents and perused the record.
6. Shorn of unnecessary details, the facts of the case, in brief, are that the petitioner joined the respondent Corporation on 27.02.2000 as a driver on contract basis. His services were regularized with effect from 05.10.2007. The petitioner was sent for medical examination on 27.07.2017 to the TSRTC hospital, Tarnaka, Hyderabad, where, after examination, the petitioner was declared unfit for Class-III A-1 category, due to defective distant vision. Thereafter, the respondent No.3 addressed a letter to the Assistant Manager (T), Karimnagar-1 mentioning that the petitioner was found fit for the post of Driver in A-1 category and to review after three months. Accordingly, the petitioner has performed duty from 23.10.2017 to 10.01.2018. Again the petitioner was referred to Tarnaka Hospital on 11.01.2018 for medical examination and opinion 3 Justice Juvvadi Sridevi WP Nos.18800 of 2019&22387 of 2019 with regard to his fitness for A-1 category. After medical examination at Tarnaka Hospital, the petitioner was again declared unfit for Driver A-1 category, due to defective distant vision, but he found fit for alternative employment as Shramik in X-2 category. However, the petitioner did not report to duty. Subsequently, the Traffic Supervisor, Karimnagar - 1 Depot has submitted absenteeism report against the petitioner on 16.10.2018. Basing upon the same, an Enquiry Officer was appointed to enquire into the absenteeism of the petitioner. The Enquiry Officer conducted ex parte enquiry and submitted report to the Depot Manager on 16.09.2019. Subsequently, a show cause notice, dated 18.09.2019, for removal from service has been issued to the petitioner. The petitioner submitted explanation on 30.09.2019. However, the respondents passed orders, dated 01.10.2019 removing the petitioner from the service. While so, the petitioner submitted an application on 01.08.2018 requesting the Respondent No.3 to provide employment to his son, as the petitioner was declared medically unfit by the respondents on 27.07.2017. However, the respondents, vide order, dated 12.03.2019, rejected the request of the petitioner for providing compassionate appointment to his son under Medical Invalidation Scheme holding that the left over service of the petitioner was below five years, which is against the circular instructions issued by the respondents.
4 Justice Juvvadi Sridevi WP Nos.18800 of 2019&22387 of 2019
7. Learned counsel for the petitioner would submit that the impugned order, dated 01.10.2019 removing the petitioner from service is illegal and arbitrary, inasmuch as the respondent Corporation declared him medically unfit to perform the duties as driver. Having found the petitioner unfit to perform the duties as Driver at the preliminary level i.e. on 27.07.2017, the respondents are not justified in again declaring him fit to perform the duty as Driver. Thereafter, the petitioner was again declared unfit to perform the duties as Driver. Since the respondents declared the petitioner medically unfit for the post of driver at the preliminary level, the respondent No.3 has no jurisdiction or authority to remove the petitioner from the post of the Driver. Further, the ex parte enquiry was conducted and thereafter, show-cause notice of removal from service was issued on 18.09.2019. The petitioner received the same on 24.09.2019 and submitted his explanation on 25.09.2019 specifically stating that he was not furnished with the Enquiry Officer's report and the statements recorded during the enquiry, which caused prejudice to him in submitting his explanation. The orders of removal passed by the respondents do not disclose consideration of the explanation submitted by the petitioner. The respondents No.3 has passed the impugned removal order mechanically, without application of mind. Further, the punishment imposed on the petitioner, i.e., removal from service is shockingly 5 Justice Juvvadi Sridevi WP Nos.18800 of 2019&22387 of 2019 disproportionate to the gravity of the alleged misconduct of the petitioner. Further, though the petitioner submitted an application on 01.08.2018 requesting the respondents to provide employment to his son since the petitioner was declared medically unfit at the preliminary level, the respondents rejected the same on the misconceived ground that the petitioner was having left over service of only four years nine month and twenty five days as against the requisite service of five years. In fact, the petitioner was having left over service of more than five years when he was declared medically unfit at the preliminary level, i.e., on 27.07.2017. However, the respondents kept the matter in cold storage and declared the petitioner unfit by the proceedings, dated 17.07.2018 so as to deprive employment to the son of the petitioner under Medical Invalidation Scheme. The petitioner did not receive any additional monetary compensation pursuant to declaring him medically unfit. As per the notification No.PD-02/2017, dated 21.02.2017, issued by the respondent corporation, for the purpose of providing employment to the spouse or child, the left over service of all the employees (including drivers) retirement on medical grounds shall be calculated from the date of declaring unfit by the Medical Officer at the preliminary level. Therefore, the order, dated 12.03.2019, passed by the respondent No.1 in rejecting the request of the petitioner to provide employment to his son under Medical Invalidation Scheme is 6 Justice Juvvadi Sridevi WP Nos.18800 of 2019&22387 of 2019 illegal and invalid. It is a fit case, to set aside the orders of removal passed against the petitioner and direct the respondents to provide employment to the son of the petitioner under Medical Invalidation Scheme and ultimately prayed to allow both these writ petitions as prayed for.
8. On the other hand, learned Standing Counsel for the respondent Corporation would submit that the petitioner was subjected to periodical medical examination and he was found medically unfit to the post of Driver for Class-III in A.1 category due to defective distant vision, vide M.C.No.05213, dated 27.07.2017 issued by the Senior Medical Officer, Zonal Hospital, Karimnagar. However, the petitioner was again examined by the Medical Officer (Opth) and he was found fit for Driver in A.1 category vide Chief Medical Officer letter, dated 11.10.2017, and was advised to review after three months. Accordingly, the petitioner performed duty from 23.10.2017 to 10.01.2018. Again after three months, he has been directed to the Chief Medical Officer, Tarnaka Hospital on 11.01.2018 for medical examination and opinion over his fitness for A.1 category. Thereafter, the petitioner has preferred an appeal on 08.03.2018 to the Chief Medical Officer, TSRTC Hospital, Tarnaka and accordingly, he was directed to the CMO/TH vide letter, dated 12.03.2018 and as such, the petitioner reported at Tarnaka Hospital on 14.03.2018 and 7 Justice Juvvadi Sridevi WP Nos.18800 of 2019&22387 of 2019 was kept under evaluation and he was found unfit for Driver in A.1 category due to "DDV (BE) DUE TO BE NPDR WITH CSME S/P FOCAL LASER". Thereafter, the petitioner preferred an appeal to the Medical Board on 15.05.2018. The Medical Board met on 17.07.2018, examined the petitioner, declared him as unfit for the post of Driver in A.1 category as per the medical standards of TSRTC but he was found fit for alternative employment as Sharamik in X-2 category. Thereafter, the petitioner did not report to duty. Thereafter, the respondent Corporation, after following due procedure, removed the petitioner from service on the ground of unauthorized absenteeism vide order, dated 01.10.2019. The circular, dated 21.02.2017 was issued framing guidelines for providing employment to the spouse or child of the employees who 'retired' on medical grounds in lieu of alternative employment or additional monetary benefit for Drivers. According to the said circular, employment to the spouse or child of the employees retired on medical grounds may be considered only when the medically unfit employee has left over service of atleast five years from the date of retirement on medical grounds, till the date of attaining the age of superannuation. In the instant case, the petitioner was not retired on medical grounds. Though he was found unfit for the post of driver, he was found fit for alternative employment as Sharamik in X-2 category, but however, the petitioner did not report to duty. Hence, the circular, dated 8 Justice Juvvadi Sridevi WP Nos.18800 of 2019&22387 of 2019 21.02.2017 is not applicable to the case of the petitioner. There is no illegality or arbitrariness in passing the order of removal against the petitioner, so also rejecting the request of the petitioner to provide employment to his son under medical invalidation scheme. The contentions raised on behalf of the petitioner are untenable. Further, the petitioner has straight away approached this Court without availing statutory/departmental remedies available to him. There are no merits in both these writ petitions and, accordingly, prayed to dismiss both the writ petitions.
9. I have given thoughtful consideration to the submissions made and meticulously perused the entire record. It is not in dispute that the petitioner was declared unfit for the post of Driver in A.1 category at the preliminary level i.e. on 27.07.2017 by the TSRTC Hospital, Tarnaka, Hyderabad due to "BIL. DEFECTIVE DISTANCE VISION". However, the 3rd respondent again addressed a letter to the Assistant Manager (T), Karimnagar-1 mentioning that the petitioner was found fit for driver in A.1 category and to review after three months. Accordingly, the petitioner performed duty as a driver from 23.10.2018 to 10.01.2018. However, again the petitioner was referred to Tarnaka Hospital on 11.01.2018 for medical examination and opinion over his fitness for A.1 category. After referring the petitioner to various hospitals and after medical examination at Tarnaka Hospital, the petitioner was found again unfit for the post of 9 Justice Juvvadi Sridevi WP Nos.18800 of 2019&22387 of 2019 driver A.1 category. Thereafter, the petitioner preferred an appeal on 08.03.2018 to the Chief Medical Officer, TSRTC Hospital, Tarnaka, Hyderabad. His case was again evaluated and he was found unfit for driver in A.1 category due to DDV (BE) DUE TO BE NPDR WITH CSME S/P FOCAL LASER. Thereafter, the petitioner preferred an appeal to the next level i.e. Medical Board on 15.05.2018. The Medical Board met on 17.07.2018 and declared the petitioner as unfit for the post of driver in A.1 category but however, he was found fit for alternative employment as Shramik in X-2 category.
10. As regards the subject matter of W.P.No.22387 of 2019, while the petitioner contends that the order of removal passed against him is illegal and arbitrary, the contention of the Respondent Corporation is that it is justified in removing the petitioner from service inasmuch as the petitioner did not turn up to duty w.e.f. 25.07.2018 till the date of issuing of the impugned order, dated 18.09.2019. Thus the ground on which the petitioner was awarded punishment of removal from services is unauthorized absenteeism to duty. The question as to whether unauthorized absence from duty amounts to violation of devotion of duty or behavior unbecoming on a Government Servant cannot be decided without deciding the question as to whether the absence was "willful" or because of certain "compelling circumstances". If the absence is due to compelling circumstances under which it would not be possible to report or perform duty, such 10 Justice Juvvadi Sridevi WP Nos.18800 of 2019&22387 of 2019 absence cannot be held to be willful. True, absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean that the said absence was "willful". There may be different eventualities due to which an employee may abstain from duty, including the compelling circumstances like illness, accident, hospitalization, etc. In such a case, the employee cannot be held guilty of unauthorized absenteeism. If an allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence was willful and in the absence of such an attempt, the absence will not amount to misconduct. In the instant case, it is not in dispute that the petitioner was found medically unfit to perform the duty as a driver. Further, admittedly, ex parte enquiry was conducted and thereafter a show cause notice of removal from services was issued against the petitioner on 18.09.2019 which was received by the petitioner on 24.09.2019. The petitioner submitted his explanation on 25.09.2019 wherein, the petitioner specifically stated that he was not furnished with the Enquiry Officer's report and the statements recorded during the enquiry which was prejudiced to him in submitting his explanation. Moreover, when the Medical Board of the respondent corporation itself declared the petitioner medically unfit to the post of Driver, the allegation that he was unauthorizedly absent to duty is untenable. Further, in the impugned removal 11 Justice Juvvadi Sridevi WP Nos.18800 of 2019&22387 of 2019 order, there is nothing which suggests that the absence of the petitioner was willful. Thus it appears that the order of removal passed by the respondent corporation does not disclose consideration of the explanation submitted by the petitioner and was passed in a mechanical manner. It is settled law that the penalty imposed against an employee should be commensurate with the gravity of the misconduct. In the instant case, having regard to the totality of the circumstances, this Court opines that the punishment of removal from service awarded against the petitioner is unduly harsh, severe, unconscionable and shockingly disproportionate to the alleged misconduct of the petitioner. Accordingly, the impugned removal order, dated 01.10.2019 is liable to be set aside.
11. As regards the subject matter of W.P.No.18800 of2019, the grievance of the petitioner is that though he submitted a letter, dated 01.08.2018 to the respondent corporation requesting them to provide employment to his son since the petitioner was declared medically unfit by the respondent corporation, the respondent corporation had not considered the same on the ground that the left over service of the petitioner was only four years nine month and twenty five days as against the requisite service of five years, which is contrary to the circular instructions, dated 21.02.2017. The respondent Corporation issued notification PD-02/2017, dated 21.02.2017, with regard to service regularization of the employees 12 Justice Juvvadi Sridevi WP Nos.18800 of 2019&22387 of 2019 viz., providing of employment to spouse or child of medically unfit employees instead of providing alternative employment to others. Relevant paragraph of the said noticification, dated 21.02.2017 reads as follows:
"The Competent Authority has examined the above issues and ordered for the following, pending approval of the Board and Government:
(i) For the limits purpose of providing employment to the spouse or Child, the leftover service of all the employees (including Drivers) retired on medical grounds, shall be calculated from the date they are declared unfit by the Medical Officer at the preliminary level.
Thus a bare perusal of the above regulation makes it clear that for providing employment to the spouse or child, the left over service of the employee (including driver) retired on medical grounds shall be calculated from the date they are declared unfit by the Medical Officer at the preliminary level. In the instant case, the date of birth of the petitioner is 26.02.1965, which is not disputed by the respondent Corporation. The petitioner was sent for medical evaluation to TSRTC Hospital, Tarnaka, Hyderabad on 27.07.2017 where, he was declared unfit for Class-III A-1 category due to "BIL. DEFECTIVE DISTANCE VISION". Thereafter, however, the petitioner was later declared fit for Driver in A.1 category and thereafter, he was again declared unfit for the said post. Thus, it is clear that the petitioner was declared unfit for the post of Driver in A.1 category at the preliminary level i.e. on 27.07.2017, by which date, he was well within the stipulated time of left over service of five years as per the 13 Justice Juvvadi Sridevi WP Nos.18800 of 2019&22387 of 2019 notification, dated 02.12.2017. On a careful examination of the material placed on record, it appears that the respondent corporation, in order to deprive the petitioner for seeking employment to his son under Medical Invalidation Scheme, declared the petitioner fit for driver in A.1 category after declaring him unfit for the said post on 27.07.2017, made him to work for three months in the said post, and thereafter declared him medically unfit for the said post. Under these circumstances, this Court is of the opinion that the respondent Corporation is not justified in declining the request of the petitioner to provide employment to his son under the Medical Invalidation Scheme.
12. Learned Standing Counsel for the respondent corporation would contend that the petitioner, without availing statutory/departmental remedies, had straight away approached this Court by way of filing writ petition. It is settled law that while exercising powers under Article 226 of the Constitution of India, though the alternative remedy is one of the factors to be considered, it cannot be said to be an unsurmountable legal hurdle, which cannot be overcome under any circumstances. In a catena of decisions, the Hon'ble Apex Court as well as various Hon'ble High Courts held that availability of an alternative remedy is not an absolute bar in entertaining a writ petition. The rule of exclusion of writ jurisdiction 14 Justice Juvvadi Sridevi WP Nos.18800 of 2019&22387 of 2019 by availability of an alternative remedy is a rule of discretion and not one of compulsion. For the foregoing discussion, W.P.No.22387 of 2019 is allowed and the order, dated 01.10.2019, passed by the Respondent No.2 therein removing the petitioner from service is hereby set aside. W.P.No.18800 of 2019 is allowed by setting aside the Proceedings No.W4/479(19)/2018-T& W, dated 12.03.2019 issued by the Respondent No.1. The respondents are directed to provide employment to the son of the petitioner in an appropriate post under Medical Invalidation Scheme, taking into consideration of the medical invalidation of the petitioner at the preliminary level and grant all consequential benefits, within a period of six (06) weeks from the date of receipt of a copy of this common order.
Miscellaneous Petitions, if any, pending in both these Writ Petitions shall stand closed. There shall be no order as to costs.
_________________ JUVVADI SRIDEVI, J Date:07.07.2023 ksk