Telangana High Court
M.Venkateshwerlu, R.R. Dist. vs M.D. A.P.S.R.T.C. Hyd And Another on 5 June, 2023
Author: Surepalli Nanda
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 22057 of 2008
Between:
M.Venkateshwerlu
... Petitioner
And
ASPRTC and Another
... Respondents
JUDGMENT PRONOUNCED ON: 05.06.2023
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : yes
___________________
SUREPALLI NANDA, J
WP_22057_2008
2 SN,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 22057 of 2008
% 05.06.2023
Between:
# M.Venkateshwerlu
..... Petitioner
And
$ ASPRTC and Another
... Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner : Mr V. Narasimha Goud
^ Standing Counsel for Respondents: Mr K. Madhava Reddy
? Cases Referred:
WP_22057_2008
3 SN,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 22057 of 2008
ORDER:
Heard learned counsel for the petitioner and learned standing counsel appearing on behalf of the respondents.
2. This writ petition is filed to issue an appropriate writ or direction particularly one in the nature of Writ of Certiorari to quash the impugned proceedings No.02/95/(27)/05-IBM, dated 18.12.2006 in postponing the petitioner's annual increment for a period of two years which shall have the effect of the petitioner's future increments besides treating the suspension period as not on duty as illegal and in violation of principles of natural justice as well as in violation of Articles 14, 16 and 21 of the Constitution of India and consequently, direct the respondents to restore the postponed increment duly treating the suspension period as on duty along with all consequential benefits.
3. The case of the petitioner, in brief, as per the writ affidavit, is as follows:
WP_22057_2008
4 SN,J
a) The petitioner joined the services of the respondents' corporation as Conductor on 21.06.2001 through due process of selection. Subsequently, his service was regularized w.e.f. 01.08.2022. Ever since the date of joining into service, the petitioner had been continuously worked till he was kept under suspension on 13.10.2005 on the ground that he was involved in cash and ticket irregularities while conducting the bus service on 11.09.2005.
b) Thereafter, the impugned punishment was imposed against him, postponing his annual increment for the period of (2) years, which shall have the effect of postponing increment besides treating the suspension period as not on duty for all purposes.
c) In respect of the above punishment, petitioner submitted that while he was conducting the bus service on 11.09.2005 from Ibrahimpatnam to Women's College, i.e., from Stage No.1 to 18, a check was affected at stage No.12 i.e., B.N.Reddy Colony and found no irregularities. However, after (5) days from the date of check, the charge memo was served in the 2nd respondent depot alleging as follows :-
WP_22057_2008 5 SN,J "You have collected an amount of Rs.6/- from a batch of (2) lady passengers who boarded your bus at Gurramguda and bound to Ring Road ex-stages 11 to 13 and issued ticket bearing No.907/347072 and 7078 of Rs.3/- denomination respectively, out of above (2) tickets, the ticket bearing No.907/437072 is issued, accounted by you in the service SR against stage No.13 (reissue) while the bus is proceeding from Nalgonda 'X' Road to Ibrahimpatnam, in 18:40 hours trip, disallowed the reissued ticket and obtained the fresh bearing ticket No.907/437079 and also confiscated the S.R.No.022/833817, and issued another S.R. duly opening ticket tray numbers".
d) For the above allegations, the petitioner submitted his explanation dated 22.09.2005 explaining that out of the said (2) lady passengers, one passenger paid Rs.3/- and purchased the ticket bearing No.970/437078 and another passenger has reported that she was having a bus pass. Hence, the petitioner requested her to show the bus pass and she was searching her belongings. While so, the petitioner concentrated in issuing the tickets to other passengers who had not purchased the tickets. In this process, the stage No.12 has come and she picked up ticket bearing WP_22057_2008 6 SN,J No.907/437072 of Rs.3/- denomination from the floor of the bus on seeing the checking officials. Therefore, the petitioner denied the charge of issuing of the said ticket to her.
e) Further, it is the case of the petitioner that the checking officials did not take the (2) individual witnesses and signature along with their full details as per the checking rules and operational manual of the corporation. Therefore, the action of the checking officials is very much arbitrary. However, the 2nd respondent suspended the petitioner from service on 13.10.2005 and issued charge sheet alleging the following charges:
CHARGES:
1. "For having failed to issue correct & valued tickets after collecting Rs.6/- from a batch of two lady passengers who boarded the bus at Gurramguda and bound for ring road ex-stages 11 to 13 and issued tickets bearing No.907/437072 and 7078 of Rs.3/-
denomination out of which ticket bearing No.907/437072 is issued and accounted by you in the service SR against Stage No.13 (re-issue) while the bus is proceeding from NLG x Road to IBPM in 18.40 hours, which constitutes misconduct under Reg. 28(vi)(a) & (xxiii) of APSRTC Employees (Conduct) Reg. 1963".
WP_22057_2008 7 SN,J
2. "For not allowing the checking officials to write a charge memo on the spot by the TTI's by holding their hands and legs which shows your disobedience towards the officials in performing their duties which constitutes misconduct under Reg.28(viii) of APSRTC Employees (Conduct) Reg.1963".
f) For the above said charges, the petitioner submitted his explanation dated 15.10.2005 in respect of charge Nos.1 and
2. However, the 2nd respondent ordered an enquiry and in the enquiry, the enquiry officer had acted as a prosecuting officer as well as presiding officer which is against the principles of natural justice. However, the passengers in question, P.Nagarani was examined on 13.05.2005 in the presence of the TTI namely Mr.Mohd. Aftar Ali and after her examination, it reveals that when the checking officials asked for her pass she could not show the pass and she was panic apart from the threat of penalty of Rs.500/- and to escape from that situation the old ticket was shown by her i.e., Nagarani to save her relative who accompanied her. Therefore, the charges that were levelled against the petitioner is not proved.
WP_22057_2008 8 SN,J
g) It is submitted by the petitioner that the enquiry officer and the 2nd respondent have committed an error in holding the petitioner's guilty of the charges hence the action of the management is illegal. Due to this punishment, the petitioner sustained loss of Rs.400/- to Rs.500/- per month and which may result heavy loss over his service period in all respects. Hence, this writ petition.
4. The counter affidavit filed by the respondent, as per the counter, is as follows:
a) The petitioner submitted his explanation which was found not convincing and therefore a regular enquiry was ordered and the enquiry officer conducted enquiry. The checking officials confirmed the statement of the passengers given at the time of check. Therefore, the enquiry officer held the charges proved.
b) After getting the comments/objections from the petitioner, a show cause notice proposing the punishment was issued and the petitioner had submitted his explanation. As there were no fresh points with reconsideration of the proposed punishment, the Depot Manager passed final orders.
WP_22057_2008 9 SN,J
c) It is submitted that the petitioner had not preferred any appeal or review against the impugned order and this Hon'ble Court cannot re-appreciate the entire evidence under Article 226 of the Constitution of India. It is pertinent to mention here that the enquiry officer relied on the statement of the checking officials and though the petitioner cross examined the checking officials it could not be shaken. There are no merits in the writ petition and it is liable to be dismissed. PERUSED THE RECORD
5. The relevant concluding portion of the order impugned i.e., proceedings No.02/95/(27)/05-IBM, dated 18.12.2006 of the Depot Manager, Ibrahimpatnam Depot reads as under:
"Since the charges are proved beyond doubt, the case has to be dealt with severely, however, considering the conductor's comparatively clean record since his appointment and his past record and also keeping in view of the passenger statement in the enquiry report, a lenient view is taken and his suspension is raised. For his involvement in C & T Case, I propose to award the punishment of deferment of annual increment of the conductor for a period of two years which WP_22057_2008 10 SN,J shall have effect on his future increments duly treating the SUSPENSION PERIOD AS NOT ON DUTY FOR ALL PURPOSES.
Accordingly, a show cause notice for deferment of annual increment for a period of two years which shall have effect on his future increments, was issued to the conductor and the conductor submitted his explanation to the show cause notice for deferment of increment. The delinquent employee in his explanation to the Show Cause Notice for deferment of annual increment has repeated the same old explanation and has not putforth any fresh points, warranting either to modify or reduce the punishment of annual increment for a period of two years which shall have effect on his future increment. I, therefore, hereby order that the Annual Increment of Sri M. Venkateshwerlu E.210666 conductor of IBPM Depot be postponed for a period of 2 years which shall have the effect of postponing his future increments, and his Suspension period be treated as NOT ON DUTY FOR ALL PURPOSES."
6. The specific comments on the enquiry report furnished on 17.01.2006 through letter dated 19.01.2006 reads as under:
" In regard to the charges levelled against me vide charge sheet dated 13.10.2005, I submitted my explanation explaining that the passengers covered in WP_22057_2008 11 SN,J the charge No.1 were not in batch and the ticket No.907/437072 was not issued to her as it was picked up by one of the lady passenger, who has been said to have been in possession of pass and therefore, I deny the charge that I issued the above ticket. In fact the said passenger did not pay the fare and purchased the ticket. In my spot explanation also I explained that I did no mistake. However, your good self was passed to order an enquiry.
During the course of enquiry the enquiry officer has denied me the reasonable opportunity and apart from that he has acted as a prosecuting officer to defend the charges and to defeat my case. During the cross- examination of the TTI, the TTI also gave evasive answers to the cross questions which I have posed to him. However, the passenger in question was examined in the presence of the TTI who has given evidence in the enquiry and the said passenger has deposed the passenger who travelling along with her has not purchased the ticket on the impression that she was in possession of the pass and when the TTIs boarded the bus she picked up the old ticket from the floor of the bus under the fear of imposition of penalty of Rs.500/- for not purchasing the ticket. On completion of the chief-examination the checking official Mr Taher Ali did not cross-examine her, though he was asked by the Enquiry Officer. I also deposed the fact which I have explained all through. But on perusing the WP_22057_2008 12 SN,J enquiry report, the enquiry officer has given much importance to the special report said to have been submitted by the checking officials beyond back of me and the said TTI did not depose what was the special report in the enquiry. As such the action of the enquiry officer in giving much weight to the said report and as well as the evidence of TTI is nothing but based on the departmental bias in order to support the prosecution case. Therefore, the findings so arrived at in holding me guilty are contrary to the material evidence available on record. As such the same can be called as perverse. Therefore, I am not accepting the findings given by the enquiry officer.
Under these circumstances, I pray you sir, please consider my comments and drop the further proceedings by reinstating me into service, for which I shall be ever grateful to you sir.
7. The counter affidavit filed by the learned standing counsel appearing for the respondents, in particular paras 4 and 5 reads as under:
"4. It is submitted that the petitioner submitted his explanation which was found not convincing and therefore, a regular enquiry was ordered. The enquiry officer, conducted enquiry. The checking officials confirmed that the statement of the passenger given at the time of check. Therefore, the enquiry officer held the charges proved. After getting the WP_22057_2008 13 SN,J comments/objections from the petitioner a show cause notice proposing the punishment was issued. The petitioner submitted, his explanation. As there were no fresh points with reconsideration of the proposed punishment, the Depot Manager passed final orders.
5. I submitted that the petitioner has not preferred any appeal or review against the impugned order and this Hon'ble Court cannot re-appreciate the entire evidence under Article 226 of the Constitution of India. It is pertinent to mention here that the enquiry officer relied on the statement of the checking officials and though the petitioner cross examined the checking official it could not be shaken. There are no merits in the writ petition and it is liable to be dismissed.
DISCUSSION AND CONCLUSION
8. A bare perusal of the order impugned in proceedings No.02/95/(27)/05-IBM, dated 18.12.2006 passed by the 2nd respondent clearly indicates that the petitioner had a clean record since his appointment and that taking into consideration the passengers statement in the enquiry report, a lenient view had been taken and suspension was raised and it was proposed to award punishment of deferment of annual increment upon the petitioner for a period of two years which WP_22057_2008 14 SN,J shall have effect on his future increments duly treating the suspension period as not on duty for all purpose.
9. A bare perusal of the comments on the enquiry report furnished by the petitioner on 17.01.2006, through letter dated 09.01.2006 clearly indicates that the petitioner requested specifically that the passenger in question to be examined in the presence of TTI, who has given evidence in the enquiry and the said passenger had deposed that travelling along with the passengers she has not purchased the ticket on the impression that she was in possession of the pass and when the TTI has boarded the bus, and she took old ticket from the floor of the bus and that on fear of imposition of penalty of Rs.500/- for not purchasing the ticket and that on completion of chief examination the checking official Mr Taher Ali did not cross examine her. A bare perusal of the extract of cross examination filed as material documents clearly indicate Enquiry Officers question to Sri. Md. Taher Ali which are as follows:
Question: Do you wish to cross examine Smt P.Naga Rani the said passenger in question in the above case which given her statement before you at the time of enquiry.
WP_22057_2008 15 SN,J Ans : Yes I wish to cross examine Smt P.Naga Rani, a passenger.
Query of the Enquiry Officer to the delinquent: Question: Do you wish to cross examine the Md Taher Ali TTI RES/HCR.
Ans: Yes I wish to cross examine the Md. Thaher Ali TTI of RES/HCR.
10. It is the specific case of the petitioner as put forth by the learned counsel for the petitioner that on completion of chief examination of the passenger, the checking official Mr. Taher Ali did not cross-examine her.
11. Learned counsel for the petitioner further relied upon the judgment dated 08.05.1963 passed in Civil Appeal No.636 of 1962 in Associated Cement Co. Ltd v The Workmen and others, in particular, para 19 reads as under:
"The second reason is also open to serious challenge. When Bakhtawar Singh was examined, he was not asked why he was shown as on duty at 3 P.M. when in fact he claimed that he came to duty between 6.45 A.M.and 7 A.M. The rule that a witness should not be disbelieved on the ground of an inconsistency between his statement and another document WP_22057_2008 16 SN,J unless he is given a chance to explain the said document, cannot be treated as a technical rule of evidence. The principle on which the said rule is based is one of natural justice, and so, it seems, that in disbelieving Bakhtawar Singh on a ground not put to him, the enquiry officers acted unfairly against Vishwa Nath."
12. And also the judgment of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh dated 16.06.2014 in Writ Appeal No.966 of 2014 in The Depot Manager v Mohd. Khan, in particular, paras 8 to 12 reads as under:
"8. It is true that the scope of interference in a Writ Petition, with the award passed by the Labour Court is very limited. At the same time, if the finding recorded by the Enquiry Officer, or the one arrived at by the Labour Court is contrary to the record, the High Court cannot ignore it.
9. In the instant case, the passenger from whom a reused ticket was recovered by name Waheed Ali was examined as a witness in the domestic enquiry. He clearly stated that he was issued a ticket for Rs.5/- and since he was drowsy while travelling in the bus, the ticket was misplaced and to avoid penalty and other consequences in the check, he has produced a ticket of WP_22057_2008 17 SN,J the previous day journey, which was in his possession. He was said to a frequent traveller on the route and he has produced a ticket, which he purchased one or two days before. No serious contradiction was elicited form this witness, by the management.
10. The service, which was being conducted by the respondent, was a city bus, on a busy route. Even according to the statistical report, there were 75 passengers and as many as 50 tickets were issued at one stage. We have carefully gone through the award of the Labour Court. There was not even a discussion about Ex.M.16, the deposition of the passenger.
11. It is true that the denomination of ticket becomes immaterial once an act of dishonesty is proved on the part of the conductor. The issue is about the integrity and honesty of the concerned conductor. If there existed such instances in his past service, a finding can straightaway be arrived at that the person is proved to be dishonest. This case however presents a rare incident. Hardly, there were any disciplinary proceedings against the respondent.
12. On the other hand, he was issued a certificate of appreciation for his act of honesty returning a bag containing Rs. 21,500/- left by a passenger in his bus. The depot authorities have also issued letters of appreciation on several occasions. One can easily imagine the mindset of a person who has chosen to WP_22057_2008 18 SN,J return the bag containing huge cash. A person of that mind would not in the ordinary circumstances, stoop to the level of misappropriating Rs. 5/-, that too, there being a possibility of his dismissal from service, if the irregularity is noticed. The learned Single Judge has taken the correct view of the matter. We, therefore, find any basis to interfere with the order under appeal.
13. The Writ Appeal is accordingly dismissed. There shall be no order as to costs."
13. Taking into consideration the above referred facts and circumstances and the principle laid down in the judgments i.e. (1) judgment dated 08.05.1963 passed in Civil Appeal No.636 of 1962 in Associated Cement Co. Ltd v The Workmen and others (2) judgment of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh dated 16.06.2014 in Writ Appeal No.966 of 2014 in The Depot Manager v Mohd. Khan and also the clean record of the petitioner since the date of his appointment and also statements of the passengers in enquiry report, this Court opines that the 2nd respondent has to reconsider the entire issue afresh again in the interest of justice.
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14. Accordingly, the writ petition is disposed of directing the 2nd respondent - Depot Manager, Ibrahimpatnam Depot to re-consider the impugned proceedings No.02/95/(27)/05-IBM, dated 18.12.2006 as per the principle laid down in the judgments referred to and extracted above, within a period of three weeks from the date of receipt of a copy of this order and pass appropriate orders duly communicating the decision to the petitioner on the enquiry report furnished on 19.01.2006 and also the petitioner's explanation dated 19.01.2006 to the charge sheet dated 13.10.2005. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_________________ SUREPALLI NANDA, J Date: 05.06.2023 Note: L.R. copy to be marked b/o kvrm