Telangana High Court
L. Venkateshwarlu, vs Apsrtc, Rep. By Its Managing Director, on 20 September, 2022
Author: Surepalli Nanda
Bench: Surepalli Nanda
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 23586 of 2013
ORDER:
Heard learned counsel for the petitioner and learned standing counsel for RTC - respondents.
2. This petition is filed by the petitioner to issue an appropriate writ or direction particularly one in the nature of Writ of Certiorari to quash the impugned order of removal from service passed in Proc. No. E1/292(7)/2010-NZB-I, dated 19.08.2011 of the 3rd respondent and consequential benefits and deferment of annual increment for a period of (2) years with cumulative effect besides treating the removal period not on duty vide Proc. No. PA/19(52)/2011-Dy. CTM:
NZB, dated 22.11.2011, which was confirmed by the 2nd respondent in his Proc. No. Peshi/675(7-P)/12-RM:NZB, dated 16.02.2013 as arbitrary, unjust and in violation of Articles 14, 16 & 21 of the Constitution of India, to direct the respondents to restore the deferred increment duly treating the removal period as on duty with wages along with all other consequential benefits in the interest of justice.
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3. The case of the petitioner, in brief, is as follows:
a) The petitioner joined the service of the respondents' corporation as driver in June 2006 after he was selected by the Selection Committee constituted under the APSRTC Employees' (Recruitment) Reg. 1966. However, while giving appointment and taking the petitioner on duty, the 4th respondent took contract agreement, and treated the petitioner as contract employee (driver). The same is nothing but illegal, contrary to the public law as well as amounts to exploiting the unemployed like him. Apart from that, there is no provision in the respondents' corporation recruitment regulation for the appointment on contract basis.
b) However, the petitioner's service was regularized w.e.f.
01.10.2010. While the petitioner was working under the control of the 4th respondent, he has suspended the petitioner from service on 25.12,2010 and issued charge sheet dated 25.12.2010 alleging the following charges:
CHARGES:
1. For having driven the bus No. AP28Z 2966 in negligent manner at Kallakal Village on route Hyderabad-Nizamabad at about 19.10 hours on 17.12.2010, it met with a fatal accident by dashing a Wp_23586_2013 3 SN,J pedestrian Sri. V. Venkata Ramaian S/o. Ventaka Ratnam aged about 52 years, R/o. Kallakal Village with the front bumper of the bus while he was trying to cross the road from left side to right side resulting in the pedestrian received grievous injuries and shifted to Gandhi Hospital, Hyderabad for immediate medicare and later succumbed to the injuries while undergoing treatment due to which much inconvenience caused to the traveling passengers besides tarnishing the image of the Corporation which constitutes misconduct in terms of Regulation 28(ix-a) & (ix-b) of APSRTC Employees (Conduct) Regulations, 1963."
2. For having driven the bus No. AP28Z with lack of anticipation at Kallakal village rash and on route Hyderabad- Nizamabad at about 19.10 hrs, on 17.12.2010, it met with a fatal accident by dashing a pedestrian Sri. V. Venkata Ramaian S/o. Ventaka Ratnam aged about 52 years, R/o. Kallakal Village with the front bumper of the bus while he was trying to cross the road from left side to right side resulting in the pedestrian received grievous injuries and shifted to Gandhi Hospital, Hyderabad for immediate medicare and later succumbed to the injuries while undergoing treatment due to which much inconvenience caused to the traveling passengers besides tarnishing the image of the Corporation which constitutes misconduct in terms of Regulation 28(ix-a) & (ix-b) of APSRTC Employees (Conduct) Regulations, 1963."
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c) In respect of the above charges, the petitioner submitted explanation dated 17.01.2011 explaining that while he was driving the vehicle bearing No. AP 28Z 2966 on 17.12.2010 from Hyderabad to Nizamabad via Medchal, the petitioner was proceeding on his side, one pedestrian suddenly came on to the road by left side towards right side.
On seeing him, the petitioner suddenly stopped the bus. Since the pedestrian was in running, could not control himself, and came into contact with the left side front bumper of the petitioner's bus, and fell down on the road. Due to road impact, he sustained injuries to the head. Therefore, there was no fault on his part and he drove the vehicle very diligently and that the accident was contributed by the above pedestrian.
d) In this regard, the passengers, who have seen the movements at that time also gave their statement stating that there was no fault on the petitioner's part and that accident was occurred due to the fault of the pedestrian. Therefore, there is no truth in the charges.
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e) However, the 4th respondent ordered an enquiry into the charges levelled against the petitioner. During the course of enquiry, the Enquiry Officer has denied to provide a reasonable opportunity to the petitioner by not supplying the list of witness and list of documents to be examined in support of the charges. Apart from that, the Enquiry Officer has acted as a Prosecuting Officer to defend the charges. Due to playing this role, the Enquiry Officer acted very much prejudicial to the petitioner's interest. On this ground the enquiry is vitiated.
f) In support of charges, the Enquiry Officer recorded statements of the petitioner and service conductor T. Narayana were examined.
g) The service conductor who was the eyewitness deposed that there was no fault of the petitioner and there is a fault on the part of the pedestrian. The evidence of the preliminary enquiry officer is based on hypothesis. Though there is no legal and valid evidence in support of the charges, the Enquiry Officer held the petitioner guilty of charges. Thereafter, the finding given by the Enquiry Officer is perverse and based on departmental bias.
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h) The petitioner submitted his objection on the enquiry report stating that the Enquiry Officer conducted the enquiry very prejudicial to the petitioner's interest and findings are perverse. However, the respondents without considering the same, removed the petitioner from service in arbitrary manner.
i) Being aggrieved by the same, the petitioner preferred an appeal before the 3rd respondent, who in-turn was pleased to pass an order holding, that the pedestrian suddenly passing over the divider and came on to the road, which the pedestrian should not have been done and further observed that the petitioner has taken every effort to avoid the accident, but while granting the relief the punishment of deferment of one annual increment for a period of two years with cumulative effect besides treating the removal period as not on duty.
j) Accordingly, the petitioner was taken on duty on 12.01,2013 and working under the control of the 5th respondent Wp_23586_2013 7 SN,J
4. Being aggrieved by the said impugned order, the present writ petition is filed. It is also stated that during the removal period, the petitioner could not get any employment.
5. PERUSED THE RECORD.
6. Finding of the disciplinary authority in its proceedings dated 19.08.2011 of the Depot Manager, Nizamabad-I, reads as under:
"On perusal of all the evidence available on record together with the circumstances fo the case, it is established that the service driver has driven the bus in rash and negligence manner with lack of anticipation and dashed a pedestrian named by Sri V.Venlata Ramaiah, S/o Venkata Ratnam aged 52 years R/o Kallakla Village an caused fatal accident. Since the road at the place of accident was straight and clear with ample illumination at the time of accident. The service driver can view the vision of the road users from every side. Further, there was no vehicle movement at the time of accident on either side i.e. from the back or front. The climate too was fair without any obstructions. As per the versions of the crew the speed of the bus was low. When it was so the skid marks should not be so high as noticed in the sketch of the accident spot. As such, the skid marks of 50 ft at the place of accident reveal that the bus was in high speed contradicting the versions of the crew and the accident was caused mainly due to the rash and negligent driving of the service driver, due to which the precious human life of the Wp_23586_2013 8 SN,J pedestrian was lost causing lot of mental agony to the family members of the deceased leaving them orphans thus attracting huge loss to the Corporation by way of claiming compensation by the legal heirs of the deceased, besides tarnishing the image of the Corporatiofn before the travelling public. Hence, the charge is proved beyond any reasonable doubt."
7. Orders dated 22.11.2011 of the Deputy Chief Traffic Manager, APSRTC, Nizamabad,- the 2nd respondent herein are as follows:
"In the light of the appeal, I have gone through the subject case record. It is found that the pedestrian came suddenly passing over the divider and came on to the road which should not be done. However, the driver tried to avoid the accident but in vain. Therefore, I opine that a lenient view be considered in this case, considering his clean record in the past, re-instated the driver and posted to ARMOOR Depot, subject to the following conditions:
1. He shall possess a valid driving licence.
2. The period of absence from the date of removal till date of joining shall be treated as NOT ON DUTY for all purposes.
3. He shall be directed for medical examination before engaging him on line.
4. He shall be directed for training to ZSTC:WL before taking him on line.
5. His One(1) Annual Increment deferrd for a period of two years with cumulative effect."
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8. Learned counsel for the petitioner's main contentions are as follows:
a) The petitioner was not gainfully employed during the period of removal since he could not get any employment, therefore, the denial of back-wages is illegal. Learned counsel for the petitioner places reliance on the judgment of the Apex Court in Pradeep Kumar S/o Rajkumar Jain v Manganese Ore (India) Limited and others1. Para 2 and 12 of the said judgment read as under:
"While the Division Bench has ordered reinstatement of the appellant, the Court has denied him the benefit of back wages. In other words, this Court is called upon to decide whether there is justification to deny back wages to the appellant."
12. It is, undoubtedly, true when the question arises as to whether the back-wages is to be given and as to what is to be the extent of back-wages, these are matters which will depend on the facts of the case as noted in Deepali Gundu 1 2022 (3) SCC 683 Wp_23586_2013 10 SN,J CIVIL APPEAL NO. 7607 OF 2021 Surwase. In a case where it is found that the employee was not at all at fault and yet, he was visited with illegal termination or termination which is actually activised by malice, it may be unfair to deny him the fruits of the employment which he would have enjoyed but for the illegal / malafide termination. The effort of the Court must be to then to restore the status quo in the manner which is appropriate in the facts of each case."
b) In view of the clear finding in favour of the petitioner in the proceedings dated 22.11.2011 of the 2nd respondent that it is found that the pedestrian came suddenly passing over the divider and came on to the road which should not have been done, therefore, the imposition of the punishment of deferment of one annual increment for a period of two years with cumulative effect and denial of back-wages is unwarranted. Learned counsel for the petitioner places reliance on the order of the learned Single Judge of this Court dated 17.07.2017 passed in WP No.16727 and 17833 of 2011 wherein it was observed at para 19 as under :
"It is the categorical assertion of petitioners in both cases that they were not gainfully employed after their termination. This assertion of the petitioners is not controverted by cogent material. When employees assert that they were not gainfully employed after termination, the burden is on the employer to prove that those employees Wp_23586_2013
11 SN,J were gainfully employed and therefore are not entitled to - 11 - wages for the period out of employment. Thus, when their removal from service is declared as illegal and employees' assertion that they were not gainfully employed is not controverted by any material on record, denial of back wages to them is wholly unjust. Moreover, the findings of the Labour Court in denying the back wages in both cases respectively has to be treated as perverse as the same is not supported by reasons, more particularly in the light of the law laid down by the Supreme Court in Deepali Gundu Surwase. It is appropriate to note at this stage that in Deepali Gundu Surwase, Supreme Court declared J.K.Sinthetics as no more good law."
c) The writ petition is maintainable as per the judgment of the Apex Court in Regional Provident Fund Commissioner v Hooghly Mills Company Limited and others2, para 21 which reads as under:
The impugned order was passed in the year 2004 and thereafter the writ petition was entertained by the two Benches of the High court and after that the matter is pending before us. Now we are in 2012. To dismiss the order of the two Benches of the High Court inter alia on the ground that the writ petition was entertained despite the existence of a statutory remedy and then send it back to the remedy of appeal after a period of eight years, would not, in our judgment, be a correct 2 2012(2) SCC 489 Wp_23586_2013
12 SN,J exercise of judicial discretion. However, we are of the opinion that normally the statutory remedy of appeal should be availed of in a situation like this."
d) Learned counsel for the petitioner therefore, pleads that the writ petition is liable to be allowed as prayed for.
9. Learned counsel for the respondent specifically contended as follows
a) That the writ petition is not maintainable as per Section 10 of Industrial Disputes Act, 1947
b) As per the proceedings of the Regional Manager dated 16.02.2013 the review petition filed by the petitioner had been rightly rejected since the petitioners case is rash and negligent driving and the petitioner drove the vehicle in speed and dashed the pedestrian resulting in the death of the pedestrian with lack of anticipation.
c) Learned counsel for the respondents, therefore, prays that the writ petition is liable to be dismissed, the order impugned in the writ petition is legal and does not warrant interference by this Court.
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10. This Court opines in view of the clear finding in favour of the petitioner duly considering the petitioner's clean record in the past and having reinstated the petitioner and posted to Armoor Depot, very clearly holding that the pedestrian came suddenly passing over the devider and came on to the road, which should not be done, the 2nd respondent, however, in his proceedings dated 22.11.2011 imposed penalty of deferment of annual increment for a period of two years with cumulative effect and further held that the period of absence from the date of removal till date of joining to be treated as not on duty for all purposes.
11. A bare perusal of the impugned proceedings dated 19.08.2011 and bare perusal of the proceedings dated 22.11.2011 of the 2nd respondent clearly indicates that there is no discussion by the respondent authorities as to why punishment of withholding of increments has been ordered in respect of the petitioner and why back- wages have been denied to the petitioner though, the petitioner has categorically asserted that he was not gainfully employed after termination and more so, when the said assertion of the petitioner is not Wp_23586_2013 14 SN,J controverted by the respondents, this Court opines that the 2nd respondent having ordered reinstatement of the petitioner, however, failed to consider the fact that the petitioner is not gainfully employed and when the said fact is not controverted by any material on record,ordering the reinstatement of the petitioner imposing conditions that the period of absence from the date of removal till date of joining shall be treated as not on duty and further imposing the condition of deferment of one annual increment for a perid of two years with cumulative effect has to be, but treated as perverse as the same is not supported by any reasons.
12. The Apex Court with reference to the benefits that are liable to be paid to the workmen consequent to declaring the punishment imposed against them as wholly illegal was considered at length in Deepali Gundu Surwase v Kranti Junior Adhyapak Mahavidyalaya (D.ED) and others3.
3 (2013) 10 SCC 324 Wp_23586_2013 15 SN,J
13. In Deepali Gundu Surwase's case, on the allegation of refusing to comply with the dictate of the Headmistress, several memos were issued to the appellant; she was placed under suspension; and disciplinary action resulting in termination from service. The appellant contested the termination in the appeal preferred by her. By order dated 20.06.2009, the Presiding Officer of the School Tribunal allowed the appeal and quashed the termination order and directed payment of full back wages to the appellant. The said order of the Tribunal was challenged before the High Court. The learned Single Judge agreed with the view taken by the Tribunal against suspension and termination. However, the direction given by the Tribunal regarding payment of back wages was set aside by relying on the judgment of the Supreme Court in J.K.Sinthetics v K.P.Agarwal4. Aggrieved by the denial of back wages, the appellant invoked the jurisdiction of the Supreme Court. On review of the entire law on the subject, the Supreme Court delineated the propositions which can be culled out from the precedent decisions.
4 2007(2) SCC 433 Wp_23586_2013 16 SN,J
14. Para 38 of the judgment reads as under :
"38. The propositions which can be culled out from the aforementioned judgments are :
38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages.
Wp_23586_2013 17 SN,J However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the Wp_23586_2013 18 SN,J sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame.
Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd., V Employees. 38.7. The observation made in J.K.Synthetics Ltd., Vs K.P.Agrawal that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches [Hindustan Tin Works (P) Ltd., V Employees. & Surendra Kumar Verma Vs Central Govt. Industrial Tribunal-cum-Labur Court] referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman." (emphasis supplied)
15. In para 22 of the said judgment the Supreme Court held as under :
"22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer- employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the Wp_23586_2013 19 SN,J competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/ quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting - 10 - the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
(emphasis supplied)
16. Taking into consideration, the law laid down by the apex Court in Deepali Gundu Surwase's case referred to and extracted above and further taking into consideration the law laid down by the Apex Court in the judgments relied upon by learned counsel for the petitioner i.e. Pradeep Kumar's case 1st cited above, Hooghly Mills Company Limited and others's case 2nd cited above and the order dated 17.07.2017 passed by this Court in W.P.No.16727 and 17833 of 2011, extracted and discussed above, the writ petition deserves to be allowed as prayed for.
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17. Accordingly, the writ petition is allowed as prayed for and the impugned order of removal from service passed in Proc. No. E1/292(7)/2010-NZB-I, dated 19.08.2011 of the 3rd respondent, and consequential benefits and deferment of annual increment for a period of (2) years with cumulative effect besides treating the removal period not on duty vide Proc. No. PA/19(52)/2011-Dy. CTM: NZB, dated 22.11.2011, which was confirmed by the 2nd respondent in his Proc. No. Peshi/675(7-P)/12-RM:NZB, dated 16.02.2013 are hereby set aside. The petitioner is entitled to entire back wages from the date of removal from service till reinstatement. The respondents are directed to restore forthwith the deferred increment duly treating the removal period as on duty with back-wages along with all other consequential benefits. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand dismissed.
_________________ SUREPALLI NANDA, J Date: 20.09.2022 kvrm