Sd.A.Rahiman, v. A.P.S.R.T.C Rep By Its Vc And Md Musheerabad,

Date : 13.4.2017 Between :

Sd A Rahiman Yahali Road, Janda Street Nellore district Petitioner And APSRTC Rep by its VC & MD Musheerabad, Hyderabad & others Respondents The Court made the following:

ORAL ORDER:

First Petitioner (deceased) was working as conductor in Sullurpet depot. It appears a check was conducted on the bus while he was on duty and based on the check conducted, disciplinary action was initiated against him. By proceedings dated 21.1.2012, he was communicated with charge memo containing four charges. Enquiry was conducted and enquiry officer submitted his report holding charges 1,2 and 3 as not proved and holding charge no.4 as proved. Based on the report of the enquiry officer, disciplinary authority issued show cause notice, proceeding as if all the charges are held proved and passed final orders dated 18.6.2012 imposing the punishment of removal from service. This punishment is under challenge in this writ petition. 2.

Heard learned counsel for petitioners and learned standing counsel for respondent corporation.

3.

It is primarily contended by the learned counsel for petitioners that the impugned order is liable to be set aside on the sole ground of total non application of mind by disciplinary authority and imposing such a harsh punishment even though enquiry officer has held charges 1, 2 and 3 as not proved by proceeding as if all the charges are proved and same is ex-facie illegal. 4.

Learned standing counsel submitted that in the concluding portion of the report, enquiry officer wrongly worded and a closer look to the enquiry officer report would show that he recorded findings against the deceased employee and therefore based on the concluding portion of the report of the enquiry officer, it cannot be said that the charges are not proved; that the disciplinary authority has considered the entire issue on merits and on application of mind, it has taken decision to impose grave punishment, having regard to the nature of allegations leveled against the deceased employee.

5.

Having regard to the submissions, the main issue for consideration is whether the order of the disciplinary authority is liable to be set aside on the ground that there was no application of mind by disciplinary authority and imposing the punishment of removal by proceeding as if the charges leveled against the deceased employee as proved.

6.

A bare perusal of the report of the enquiry officer would show that enquiry officer held charges 1,2 and 3 as not proved. Whether such findings of the enquiry officer are contrary to the own record, is a different matter. The same can be considered only when the disciplinary authority has recorded that he is not agreeing with the conclusions of the Enquiry officer and informed the deceased employee that the conclusions arrived at by the enquiry officer is contrary to the material on record and his own observations and therefore disciplinary authority decided to hold all the charges as proved and called for explanation. On the contrary, disciplinary authority proceeded as if all the charges are held proved by the enquiry officer.

There was no further opportunity afforded to the petitioner to know the reasons for deferment of the findings recorded by the enquiry officer and to offer his explanation. It grossly erred in imposing the punishment of removal on the assumption that all the charges are held proved by Enquiry Officer. The order is liable to be set aside on that ground alone and accordingly set aside.

7.

Having regard to the facts of this case, in the normal circumstances, the matter has to be remitted to the stage for consideration of report of the Enquiry Officer by the disciplinary authority. In the instant case, the employee died, therefore, no further action can be taken on the said employee on the issue of disciplinary action. Thus, at this stage, the question of remittance would not arise. At this stage, learned counsel for respondents submitted that atleast backwages should be denied to the petitioners.

8.

Once an order of removal is set aside, the employee is ordinarily entitled to all the consequential benefits. However, having regard to the peculiar facts of the case, I deem it appropriate to pass the following order: 1) The order of punishment imposed is set aside. The employee is held to be in service till he attained the age of superannuation or till he died, which ever is earlier.

2) The period out of service shall be treated as continuous service for the purpose of payment of retirement/ terminal benefits. However, since atleast on charge no.4 the findings are against the deceased employee, though allegation leveled against him was minor in nature, legal representatives are not entitled to attendant benefits. However, they are entitled to backwages.

Subject to above, the writ petition is disposed of. No costs. Having regard to the same, miscellaneous petitions, if any pending, are closed. ______________ P NAVEEN RAO,J DATE: 13.4.2017 TVK

Date : 13.4.2017