P.Prabudas, v. The Regional Manager,
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO Writ Petition No.8927 of 2001 ORDER:
This writ petition is filed for issuance of writ of Mandamus to declare the action of the 1st respondent in appointing the petitioner as Conductor afresh without back wages and continuity service by his proceedings No.Peshi/19(24)/99RM/SKLM dated 13.07.1999 as illegal, arbitrary, unconstitutional and violative of Articles 14, 16 and 21 of the Constitution and pass such other or further order or orders as this Court deems fit and proper in the interest of the case.
2) The brief facts of the case are thus: a) The petitioner was appointed as Conductor Grade-II and subsequently promoted as Conductor Grade-I. While so, a check was exercised on 28.08.1998 at about 12:15 hours at Station No.3 (Kollivalasa) on the route Srikakulam to Palakonda and found ticket irregularity on the allegation that petitioner reissued 21⁄2 tickets of Rs.9/- denomination and one ticket of Rs.6/- denomination to three passengers and accordingly he was issued charge memo dated 21.09.1998 and he submitted a detailed explanation. Having not satisfied with the explanation submitted by the petitioner the second respondent issued proceedings No.01/95(16)98-SKLM-II dated 08.02.1999 removing the petitioner from service. Challenging the same, the petitioner preferred an appeal before the 3rd respondent-Deputy Chief Traffic Manager,
Srikakulam and the said appeal was rejected vide proceedings No.St.19(23)/99-RM:SKLM dated 21.04.1999. Aggrieved, the petitioner preferred review petition before the 1st respondent-the Regional Manager, APSRTC, Srikakulam, wherein the 1st respondent vide proceedings No.Peshi/19(24)99-RM/SKLM dated 13.07.1999 appointed the petitioner Conductor Grade II afresh on pay of Rs.2,320/- with usual allowances admissible from time to time without back ages and without continuity service. Hence the writ petition on the submission that the punishment is disproportionate to the proved misconduct. The 1st respondent ought to have ordered reinstatement with continuity of service.
b) The respondents filed counter stating that initially petitioner was appointed as Conductor Grade-II and later promoted as Conductor Grade-I. On 28.08.1998 a check was exercised at Kollivalasa on Srikakulam-Palakonda route and the checking officials found certain cash and ticket irregularities and a charge memo dated 21.09.1998 was issued on the allegation that he reissued two and half tickets of Rs.9/- denomination and one ticket of Rs.6/- denomination to three passengers which were already issued against the stage nos.5 and 6 during 7.20 hrs. and against stage No.4 during 10.00 hrs. on the trip from Palakonda to Srikakulam which constitutes misconduct under Regulation 28 of APSRTC Employees (Conduct) Regulations, 1964 (For short "APSRTC Regulations") and he was further charged that he
failed to issue valid tickets to three passengers who boarded the bus at Srikakulam and alighting at Kollivalasa which constitutes misconduct.
The petitioner submitted his explanation to the charge memo on 24.09.1998. Having not satisfied with the explanation offered by the petitioner domestic enquiry was ordered into the matter. The enquiry officer conducted the enquiry duly following the principles of natural justice and submitted his report on 05.12.1998. Basing on the enquiry officer's report, the 2nd respondent issued show cause notice of removal on 12.01.1999 to petitioner. The petitioner submitted his explanation on 30.01.1999 wherein he took a new plea. Hence, final order was passed on 08.02.1999 removing the petitioner from service. Challenging the same the petitioner filed appeal before the 3rd respondent. The 3rd respondent after considering the entire evidence on record rejected the appeal by his order dated 21.04.1999. Aggrieved, the petitioner preferred review before the 1st respondent. The 1st respondent in his order dated 13.07.1999 while allowing the review petition reinstated the petitioner as Conductor Grade II afresh denying back wages and continuity of service.
3) Heard both sides.
4) The main plank of argument of learned counsel for petitioner is that the reviewing authority having found in his order dated 13.07.1999 that the punishment of removal from service imposed on the petitioner by the 3rd respondent and
confirmed by the 1st respondent was not in order, ought to have imposed a lesser punishment prescribed in Regulation 8 of APSRTC Regulations, but instead imposed a strange punishment of appointing the petitioner as Conductor Grade-II afresh without back wages and continuity of service. He would vehemently argue that modified punishment besides being equally harsh, as it deprived continuity of service and back wages, it was not enumerated in any one of the punishments under Regulation 8 of APSRTC Regulations. The authority has no power to pass punishment which is not prescribed in the Statute or Regulations applicable to the concerned delinquent. He submitted that in a similar case when the RTC authorities have ordered appointing the petitioner therein as Conductor afresh this Court set aside the said order and directed the authorities to pass appropriate punishment on the petitioner in accordance with APSRTC Regulations. He thus prayed to allow the writ petition and pass appropriate order.
5) Per contra, learned Standing Counsel for APSRTC while defending the impugned order argued that the order passed in the review do not suffer any legal infirmity inasmuch as the order would connote that the reviewing authority while agreeing with the finding of the authorities below holding the petitioner was guilty of misconduct and also holding that he deserves severe punishment but only disagreed with the nature of the punishment imposed by them by observing that the same was not in order for the offence committed by him
and using its discretion, ordered for reinstatement as Conductor Grade-II afresh without continuity of service and back wages. The reviewing authority being the Regional Manager has such power of discretion and the petitioner cannot challenge his power.
6) In the light of above rival arguments, the point for determination is:
"Whether the order of the 1st respondent vide proceedings No.Peshi/19(24)/99-RM/SKLM dated 13.07.1999 is legally sustainable?"
7 ) POINT: The admitted facts are that petitioner worked as Conductor and on charges of misconduct the 2nd respondent passed an order through proceedings No.01/95(16)98-SKLMII dated 08.02.1999 removing him from the service. Aggrieved, the petitioner preferred an appeal before the 3rd respondent but the same was also rejected vide proceedings No.St.19(23)/99-RM:SKLM dated 21.04.1999. Thereupon, the petitioner preferred review before the 1st respondent and the 1st respondent in his proceedings No.Peshi/19(24)/99RM/SKLM dated 13.07.1999 observed that having considered the past service of the petitioner and to give one more chance to him to discharge his duties loyally and faithfully passed the following order:
1. Sri P.Prabhudas E-453216, Ex.-Conductor of SrikakulamII Depot may be appointed afresh as Conductor-Gr.II on pay of Rs.2320/- in the scale of Rs.2320-77-3398-90-429095-5058 with usual allowances admissible from time to time without back wages, without reckoning previous
service and posted to Palasa Depot.
2. The Depot Manager Palasa shall appoint the petitioner Sri P.Prabhudas, E-453216, Ex.-Conductor of Srikakulam II Depot, duly observing all formalities as per rules in force i.e. sending for medical examination, collection of security deposit etc.
3. The petitioner is directed to report to the Depot Manager, Palasa within seven (7) days from the date of receipt of the proceedings failing which the proceedings shall remain cancelled.
a) As can be seen, the petitioner is not challenging the finding of the authorities holding him guilty of misconduct. However, his argument is that the reviewing authority having found that the punishment or removal from service imposed by the authorities below was not in order, ought to have imposed a lesser punishment enumerated in Regulation 8 of APSRTC Regulations, but contrary to it imposed the punishment of reinstatement into service as Conductor Grade-II afresh without continuity of service and back wages which is not enumerated in Regulation 8 and hence such modified punishment is illegal.
b) Per contra, the argument of learned Standing Counsel for respondents/APSRTC is that the modified punishment in reality is a discretion exercised by the reviewing authority in favour of the petitioner and therefore, though it is not enumerated in Regulation 8 the same cannot be challenged.
8) A perusal of operative portion of the order of reviewing authority extracted supra, would give an understanding that the reviewing authority agreed with the finding of the authorities below that the petitioner was guilty of misconduct
and hence he deserves severe punishment. Then, with regard to punishment of removal of service imposed by the authorities below that the petitioner was guilty of misconduct and hence deserves severe punishment, Then, with regard to punishment of removal of service imposed by the authorities below the reviewing authority found it as "not in order" for the reason that the petitioner reissued 21⁄2 tickets of Rs.9/- denomination and one ticket of Rs.6/- denomination to three passengers and further he was removed from service on the first occasion. Thus, the reviewing authority has given its own reasoning as to why in its opinion the punishment imposed by the authorities below was "not in order".
Hence, the reviewing authority embarked upon in setting aside the order of removal from service and instead ordered that the petitioner shall be appointed as Conductor Grade II afresh with certain terms. So, at the outset, the order of reviewing authority in appointing the petitioner as Conductor Grade-II afresh with certain terms and conditions shall be treated as modified punishment, in my considered view. It is pertinent to note here that the reviewing authority has not made it clear that its ordering reinstatement of the petitioner afresh as a measure of discretion or compassion. Therefore, such an order shall be understood only as a modified punishment. Admittedly, the modified punishment imposed by the reviewing authority is not enumerated in Regulation 8 of APSRTC Regulations.
"8. Penalties:
(1) The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon an employee namely: (i) censure;
(ii) withholding of the privilege of free passes or privilege ticket orders or both for travel on the railway or the bus services of the Corporation, as the case may be, in the case of employees to whom such privilege or privileges are admissible;
(iii) fine, in the case of persons for whom such penalty is permissible under these Regulations, vide Sub-clause (3); (iv) withholding of increments;
(v) recovery from pay of the whole or part of any pecuniary loss caused to the Corporation by an employee's negligence or breach of orders;
(vi) suspension, where a person has already been suspended under Regulation 18 pending enquiry into his conduct, to the extent considered necessary by the authority imposing the penalty;
(vii) reduction to a lower rank in the seniority list or to a lower post or time-scale, whether in the same class of service or in another class, or to a lower stage in a timescale; (viii) removal from the service of the Corporation which does not disqualify from future employment.
(ix) Dismissal from the service of the Corporation which ordinarily disqualifies from future employment."
9) In that view of the matter, the question is whether the reviewing authority is legally competent to impose a punishment which is not statutorily prescribed. The law on this aspect is no more res integra as it has been dealt with in extensive in K.C.Narayana v. Managing Director, APSRTC, Hyderabad[1].
10) In that case the facts are more or less similar to the case on hand. In that case also a Conductor in APSRTC was removed from service on the ground of misconduct. The reviewing authority taking compassionate view directed him to be appointed afresh. A learned Judge of this Court following the judgment of the Honourable Apex Court in State Bank of India v. T.J.Paul[2] having observed that the punishment of appointment 'afresh' is not the one among the enumerated penalties, set aside the order and directed the authorities to examine the records and determine the appropriate punishment to be imposed on the petitioner strictly in accordance with the APSRTC Regulations. However, the learned judge opined that in view of Supreme Court's judgment in T.J.Paul's case (2 supra) the earlier judgment of this Court taking contrary view was no longer good law. The learned Judge observed thus:
"18. In view of the judgment of the Supreme Court in T.J. Paul's case (supra), the earlier judgments of this Court taking a contrary view must be held no longer as good law and as a result the impugned order of the reviewing authority, appointing the petitioner as a conductor afresh, must necessarily be set aside and the matter remanded to the 2nd respondent for his consideration on the question of penalty."
11) It is need less to emphasise that the judgment in K.C.Narayan's case (1 supra) applies with all its force in the case on hand. In the instant case also the 1st respondent passed an order imposing the penalty of appointing the
petitioner as Conductor Grade-II 'afresh' without back wages and continuity of service which punishment is not enumerated in Regulation 8 of APSRTC Regulations and as such, it is liable to be set aside.
12) In the result, this writ petition is allowed and the impugned order of the 1st respondent is set aside and he is directed to examine the records and pass appropriate punishment to be imposed on the petitioner strictly in accordance with APSRTC Regulations within a period of three
(3) months from the date of receipt of a copy of this order. No costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
_________________________ U.DURGA PRASAD RAO, J Date: 06.06.2016 Murthy [1] 2007 (5) ALD 416 [2] AIR 1999 SC 1994