Andhra HC (Pre-Telangana)
R. Shankaraiah vs The Managing Director, Apsrtc, ... on 14 September, 2012
Equivalent citations: AIRONLINE 2012 AP 5
Author: G. Rohini
Bench: G. Rohini
THE HON'BLE Ms. JUSTICE G. ROHINI AND WRIT APPEAL No.867 OF 2011 14.09.2012 R. Shankaraiah The Managing Director, APSRTC, Musheerabad, Hyderabad and 3 others Counsel for the appellant : Sri D. Arun Kumar (Amicus Curiae) Counsel for respondent: Sri Mahender Reddy, rep. the Smt. Sarala Reddy, SC for APSRTC ? Cases cited: 1 (1995) 6 SCC 749 2 (1997) 7 SCC 463 3 (1999) 1 SCC 759 4 (1999) 5 SCC 762 5 (2000) 1 SCC 416 6 (2011) 4 SCC 584 7 (2003) 4 SCC 524 8 2012 (2) ALT (D.B.) JUDGMENT:
(Per G. Rohini, J) The unsuccessful petitioner in W.P.No.283 of 2004 is the appellant before us. The appellant/writ petitioner, while working as a Driver in the A.P. State Road Transport Corporation (for short, 'APSRTC') in Vakadu Depot, the bus bearing No.AP-09-Z-5322 driven by him involved in a head-on-collision with another RTC bus bearing No.AP-10-Z-4731 resulting in death of one lady passenger and injuries to 20 passengers and 3 crew members besides heavy damage to both the vehicles. Pursuant thereto, he was charge-sheeted alleging that the said accident was caused on account of his driving the vehicle without precaution and lack of anticipation at a left turn of the road and that the same constitutes misconduct under Regulation 28 (ix) (a) of APSRTC Conduct Regulations, 1963. After due enquiry, the above said charge was held proved by the enquiry officer and accepting the said report, the Depot Manager, APSRTC, Vakadu Depot, who is the disciplinary authority, by order dated 5.4.2002 imposed the penalty of removal from service with immediate effect. The appeal preferred by the writ petitioner against the said order was dismissed by the Divisional Manager, APSRTC, Gudur/Appellate Authority, by order dated 15.12.2003. Aggrieved by the same, the petitioner approached this Court by filing W.P.No.283 of 2004 which was dismissed by a learned Single Judge by order dated 17.12.2009. Hence the present appeal.
We have heard Sri D. Arun Kumar, advocate, who is appointed as Amicus Curiae to appear on behalf of the appellant/writ petitioner as well as Sri Mahender Reddy, the learned counsel representing Smt. Sarala Reddy, Standing Counsel for the APSRTC.
At the outset, it may be mentioned that in the said accident the writ petitioner, who was driving the bus bearing No.5322 was also injured and he lost his leg.
His specific case is that he was not responsible for the accident as he was neither negligent nor rash in driving the bus and that the finding recorded by the enquiry officer on the basis of which the order of removal came to be passed by the disciplinary authority was erroneous and opposed to the evidence on record. Since he lost his leg while in service, he also claims that he is entitled to alternative employment under Sections 2 and 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, 'the Act').
The learned Single Judge dismissed the writ petition holding that there was sufficient evidence to sustain the finding of guilt against the petitioner and that such finding which was neither perverse nor opposed to the evidence on record cannot be interfered with in exercise of jurisdiction under Article 226 of the Constitution of India. The further contention that the entire disciplinary proceedings were vitiated since the writ petitioner was not paid subsistence allowance, was also not accepted by the learned Single Judge observing that mere non-payment of subsistence allowance cannot ipso facto be a ground to vitiate the disciplinary proceedings since the writ petitioner did not assert or establish that he was in any manner prejudiced or adversely affected in presentation of his defence during the disciplinary proceedings because of the non-payment of subsistence allowance. So far as the claim of the writ petitioner that he is entitled to protection of Section 47 of the Act and therefore the APSRTC is bound to consider his claim for alternative employment is concerned, the learned Single Judge opined that since his removal from service was not consequent upon disability suffered by him but the removal was ordered as a penalty on the basis of the charges that were held proved against him after due enquiry, Section 47 of the Act had no application. The order of the learned Single Judge is sought to be assailed by Sri D. Arun Kumar, the learned Amicus Curiae contending that the disciplinary authority failed to consider the enquiry report in proper perspective and thus it was concluded erroneously that the accident took place only due to the gross negligence of the writ petitioner in driving the vehicle.
Placing before this Court a copy of the enquiry report, dated 7.3.2012 and pointing out that in fact the enquiry officer found that the driver of the other vehicle i.e., bus bearing No.4731 was also responsible for the fatal accident for having entered right turn of road without seeing the opposite vehicle and for having left the driver's seat while the vehicle was in motion, the learned Amicus Curiae further contended that the disciplinary authority committed a grave error in concluding that the accident had taken place only on account of the negligence on the part of the writ petitioner. While drawing attention of this Court to various portions of the enquiry report dated 7.3.2012 wherein it was observed by the enquiry officer that though the conductor of the bus bearing No.4731 stated that the said bus was running at a speed of 25 kmph when collided with the bus being driven by the writ petitioner, it was found in the spot inspection that the said bus had skid marks of 150 feet which established that the said bus was running at a high speed and moreover the driver of the Bus No.4731 left his seat out of fear seeing the opposite vehicle and failed to take his vehicle to the left side to avoid head on collision and thus he had contributed for the fatal accident, the learned Amicus Curiae contended that the disciplinary authority erred in completely ignoring the said observations made by the enquiry officer.
On a careful reading of the report of the enquiry officer, we have observed that the enquiry officer found fault with the driver of the bus bearing No.4731 also for not applying the brakes at appropriate time and on the other hand leaving the driving seat while the vehicle was in motion. However it is not as if the allegations against the writ petitioner that he was driving bus No.5322 without taking necessary precaution and with lack of anticipation at a left turning were not established. On the basis of the evidence adduced by the eye-witnesses i.e., the passengers on the board of the bus bearing No.5322 the enquiry officer recorded a clear finding that the accident would not have occurred if the driver of bus bearing No.5322 i.e., the writ petitioner had not come to the right side while overtaking the stationed lorry and that the accident occurred due to his carelessness and lack of anticipation only.
In the light of the said findings recorded by the enquiry officer which were based on sufficient evidence available on record, the disciplinary authority cannot be said to have committed any error in holding that the charge against the writ petitioner was established. May be the driver of the bus bearing No.4731 was also found to be guilty of contributory negligence, however on that ground it cannot be said that the writ petitioner was not guilty of the charge framed against him.
The law is well-settled that the power of judicial review under Article 226 of the Constitution of India so far as the disciplinary action against the delinquent is very limited. The order of punishment can be interfered with by this Court only where such order is found to be vitiated due to violation of the statutory provisions or where the order is found to have been passed in violation of the principles of natural justice. The findings of fact recorded in departmental enquiries will not be interfered except where this Court is satisfied that there is no evidence at all to substantiate such findings or where they are perverse. Even with regard to the penalty imposed, this Court will not interfere in exercise of power of judicial review unless the penalty or punishment imposed by the disciplinary authority or the appellate authority is either impermissible or that it shocks the conscience of this Court.
While examining the scope of judicial review, it has been consistently held by the Apex Court that the interference is not warranted if the findings of the enquiry officer are based on the evidence and reasonable opportunity was afforded to the delinquent before recording such findings. It was also made clear that sufficiency or adequacy of evidence cannot be gone into by this Court but the interference is warranted only when it is a case of no evidence. [vide B.C. Chaturvedi v. Union of India1; Union of India v. G. Ganayutham2; Apparel Export Promotion Council v. A.K. Chopra3; Bank of India v. Degala Suryanarayana4 and High Court of Judicature at Bombay v. Shashikant S. Patil5]. Reiterating the above said legal principles, it is held in STATE BANK OF BIKANEER & JAIPUR v. NEMI CHAND NALWAYA6:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations."
In the case on hand, the enquiry officer on appreciation of the evidence adduced on behalf of the Corporation as well as the writ petitioner recorded a clear finding that the charges against the writ petitioner were established. The disciplinary authority by a well reasoned order accepted the findings recorded by the enquiry officer and having regard to the gravity of the misconduct proved thought it fit to impose the penalty of removal from service. The finding as well as the quantum of penalty imposed by the disciplinary authority were confirmed by the appellate authority and reviewing authority. In the light of the settled legal position noticed above, such findings which were based on sufficient evidence warrant no interference and the learned Single Judge had rightly declined to do so.
The learned Amicus Curiae relying upon the judgment of this Court in Crl.R.C.No.2336 of 2010 wherein the writ petitioner is acquitted of the charges levelled against him, further contended that the penalty of removal imposed by the disciplinary authority as confirmed by the appellate authority as well as the learned Single Judge are liable to be set aside and consequently in the interest of justice the APSRTC may be directed to consider his case for alternative employment under Section 47 of the Act.
It is relevant to note that criminal proceedings were also initiated against the petitioner in regard to the allegations which were the subject- matter of the departmental enquiry and the same ended in conviction vide order dated 28.4.2009 in C.C.No.166 of 2001 on the file of the Court of the Additional Judicial First Class Magistrate, Gudur, holding that he was guilty of driving the vehicle in a rash and negligent manner. Accordingly he was sentenced to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 304-A of IPC, rigorous imprisonment for a period of 3 months for the offence punishable under Section 338 of IPC and rigorous imprisonment for a period of one month for the offence punishable under Section 337 of IPC. The Criminal Appeal No.102 of 2009 preferred by the writ petitioner was allowed in part by judgment dated 29.11.2010 and the learned I-Addl. District & Sessions Judge, Nellore while confirming the conviction, reduced the sentence of rigorous imprisonment of one year for the offence punishable under Section 304-A of IPC to six months and in all other respects the judgment of the Trial Court was confirmed. As against the said judgment, when the writ petitioner preferred Crl. R.C.No.2336 of 2010, this Court having taken note of the fact that all the eye-witnesses turned hostile and two different versions were given by two remaining prosecution witnesses gave benefit of doubt to the writ petitioner and accordingly by order dated 25.8.2011 set aside the conviction and sentence and acquitted the writ petitioner of all the charges levelled against him.
It is no doubt true that the writ petitioner was acquitted by this Court in Crl.R.C.No.2336 of 2010. However the standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings. Therefore the findings recorded in criminal proceedings will have no effect on previously concluded domestic enquiry. We may point out that Crl.R.C.No.2336 of 2010 was allowed and the writ petitioner was acquitted by giving benefit of doubt and it is not a case where charges held to be not proved. In identical circumstances, it was held in NEMI CHAND NALWAYA'S case (6 supra) that the fact that the delinquent was subsequently acquitted by giving him benefit of doubt will not in any way render a completed disciplinary proceedings invalid.
Hence in our considered opinion the finding of guilt recorded by the enquiry officer and the consequential penalty imposed in the departmental proceedings are in no way affected by the order in Crl.R.C.No.2336 of 2010.
Coming to the question whether the petitioner is entitled to protection afforded by Section 47 of the Act, it is no doubt true that the petitioner lost his leg in the accident occurred on 6.11.2000 while he was discharging duty in connection with his service in APSRTC. Section 47 of the Act which prevents the employer from dispensing with or reducing in rank any employee who acquired a disability during his service reads as under:
"47. Non-discrimination in Government employments (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service;
PROVIDED that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefit:
PROVIDED FURTHER that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability:
PROVIDED that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this Section."
To substantiate the contention that the petitioner is entitled to protection under Section 47 of the Act and that the Corporation is bound to provide alternative employment, the learned Amicus Curiae relied upon KUNAL SINGH v. UNION OF INDIA7 and APSRTC v. K. MOSES8.
There can be no dispute about the ratio laid down in the above decisions that the expression "during his service" should not be interpreted in a narrow compass and it is necessary for the Courts to give such an interpretation so as to promote social objective behind the enactment and to ensure the benefit of the protection accorded under Section 47 of the Act. However in this case it is established that the accident was caused on account of the negligence of the petitioner in driving the vehicle resulting in one death and injuries to more than 20 persons apart from damage to the two vehicles of APSRTC. May be that in the same accident the writ petitioner who was driving the vehicle was also injured and lost his leg resulting in permanent physical disability. However having regard to the fact that the disciplinary proceedings initiated against the writ petitioner were based on the very same accident and ultimately the disciplinary proceedings culminated in removal from service, in our considered opinion, he is not entitled to the protection under Section 47 of the Act. The removal from service by way of penalty on account of established misconduct cannot be equated to the dispensation of services on the ground of acquiring disability during his service. In view of the admitted fact that the removal of the petitioner from service was by way of punishment for the established misconduct but not on the ground of his acquiring physical disability, as rightly held by the learned Single Judge, Section 47 of the Act is not attracted.
For the aforesaid reasons, the order of the learned Single Judge warrants no interference by us.
Accordingly, the Writ Appeal is dismissed. No costs. _________________ Justice G. Rohini _________________________ Justice C.Praveen Kumar Date: 14.09.2012