Telangana High Court
A.G. Goud, Mahabubnagar District vs The Depot Manager, Apsrtc, ... on 25 January, 2022
Author: P. Madhavi Devi
Bench: P. Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.15709 OF 2004
ORDER
This Writ Petition has been filed by the petitioner seeking a Writ more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd respondent in deferring the petitioner's annual increment for a period of two years which shall have effect of postponing of the petitioner's future increments and treating the period from the date of his removal to the date of his reporting for duty as 'not on duty' as arbitrary, illegal, unjust, unreasonable and contrary to his findings and to set aside the proceedings of the 2nd respondent in P.A./19(26)/97-RM(MB) dt.04.07.1997 and pass such other order or orders.
2. Brief facts leading to the filing of this Writ Petition are that the petitioner was appointed as a Conductor in the respondent organisation. He was charge-sheeted for unauthorised absence. The following are the charges framed:
(1) "For having absented unauthorisedly for duties from 27-10-96 to till date, resulting loss to the Corporation revenue, besides inconvenience to the travelling public, which constitutes misconduct under Reg.28(xxvii) of APSRTC Employees' (Conduct) Reg. 1963."
(2) "For your repeated irregular attendance caused dislocation of services, cancellation of KMs., inconvenience to the travelling W.P.No.15709 of 2004 2 public, besides loss of revenue to the Corporation, which constitutes misconduct under Reg.28(xxvii) of APSRTC Employees' (Conduct) Reg. 1963."
(3) "For having absented unauthorisedly for 26 days unauthorisedly during the period from 1-5-96 to 16-9-96, which constitutes misconduct under Reg.28(xxvii) of APSRTC Employees' (Conduct) Reg. 1963."
(4) "For your reported irregular attendance resulting dislocation/ cancellations of services, inconvenience to the travelling public besides loss of revenue to the Corporation, which constitutes misconduct under Reg.28 (xxvii) of APSRTC Employees' (Conduct) Reg. 1963."
The petitioner gave his explanation to the charge sheet on 01.11.1996 by denying the charges and explaining the facts and circumstances for his unauthorised absence. However, it was not appreciated and a formal enquiry was conducted and the petitioner was removed from service by proceedings No.P1/1(42)/96-MBNR dt.04.01.1997 by respondent No.1. The petitioner immediately filed an Appeal before the Deputy C.T.M., Mahabubnagar and the same was rejected by proceedings dt.31.03.1997. Against the appellate order, the petitioner preferred Review Petition before the 2nd respondent and the 2nd respondent modified the removal order by directing reinstatement of the petitioner but deferring future increments for a period of two years which shall have effect of postponing of future increments and also observed the period of absence from the date of removal to the date of reporting as 'not on duty' for leave, gratuity, provident fund and other monetary benefits and also directed to collect fresh security deposit W.P.No.15709 of 2004 3 from him. Seeking further relief, the petitioner has filed this Writ Petition.
3. Learned counsel for the petitioner, Sri P. Venkateswar Rao, submits that the petitioner was really sick and due to which he could not report for duty and for the earlier period during 1996 and 1997 he had reasonable cause for non-attendance which has been explained to the respondent authorities. He submitted that the punishment of deferment of his future increments for a period of two years with cumulative effect is a major punishment and sought for modification of the same. He submitted that he is not pressing for the relief with regard to treating the period between the date of removal and the date of reporting as 'not on duty' for leave, gratuity, provident fund and other monetary benefits. He therefore prayed for further relief by modifying the punishment to deferment of future increments for a period of two years without cumulative effect.
4. Learned counsel for the respondents, Sri B. Mayur Reddy, on the other hand, relied upon the averments in the counter affidavit, wherein it was stated that the petitioner has failed to explain reasonable cause for his absence during the period mentioned in the charge sheet. Further he submitted that the petitioner has approached this Court after a long period of 7 years, therefore, it is barred by limitation. He also submitted that there is alternative remedy available to the petitioner by filing ID before the Labour Court which the writ W.P.No.15709 of 2004 4 petitioner failed to avail and therefore this Writ Petition under Article 226 of the Constitution of India is also not maintainable. He further placed reliance upon a decision of Hon'ble High Court of Andhra Pradesh in the case of P.V.Narayana and others Vs. A.P.State Road Transport Corporation and others1 for the proposition that where the petitioner approaches the Court after a long period, then such Writ Petition is not maintainable.
5. Having regard to the rival contentions and the material on record, this Court finds that the first issue is whether a writ petition is maintainable when alternative remedy of filing of ID before the Labour Court is available. Admittedly, the petitioner has not approached the Labour Court for the relief, but has come straight away to the High Court. Filing of ID before the Labour Court is not a statutory remedy available to the petitioner and therefore, it cannot be said that the petitioner ought to have approached the Labour Court and not the High Court in appeal. Therefore, this contention of the respondents is rejected.
6. As regards the long delay in approaching this Court against the punishment and the reliance of the learned counsel for the respondents on the decision of the Hon'ble A.P. High Court in the case of P.V.Narayana and others (1 supra), this Court finds that it is a case where the appeal was filed in the year 2007 after a lapse of 15 years 1 2013(4) ALD 386 : 2013(3) ALT 711 : MANU/AP/0109/2013 W.P.No.15709 of 2004 5 and the revision was also dismissed. In the present case, this Court finds that the petitioner had filed appeal and review petition within time before the authorities and it is before this Court that the petitioner has filed the present petition with a delay of nearly 7 years. Therefore, the decision of the Hon'ble A.P. High Court in the case of P.V.Narayana and others (1 supra) is not applicable to the case on hand. However, this Writ Petition was admitted and is pending for long and at this stage it is not proper to dismiss this Writ Petition only on the ground of delay. Therefore, this contention of the respondents is also rejected.
7. As far as the proportionality of punishment for the charges of unauthorised absence of 26 days and 43 days is concerned, this Court finds that the reviewing authority has accepted the reasonable cause explained by the petitioner for remaining absent during the relevant period. It was convinced that the petitioner was sick and therefore he could not attend to the duties. Having held so, the authority has modified the punishment of removal from service to deferment of his annual increment which falls next due for a period of 2 years with cumulative effect. This Court finds that the punishment imposed by the reviewing authority is disproportionate to the charges levelled and proved against the petitioner. In such circumstances, the proper course of action would be to remand the issue to the file of the respondents to reconsider the quantum of punishment. However, due to lapse of nearly 18 years, instead of remanding the case, this Court deems it fit W.P.No.15709 of 2004 6 and proper to modify the punishment to stoppage of one annual increment for a period of 2 years without cumulative effect.
8. The Writ Petition is accordingly allowed in part. No order as to costs.
9. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 25.01.2022 Svv