Andhra Pradesh State Road Transport Corporation (Apsrtc) Vs Chinta Subrahmanyam

ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION (APSRTC),, REP. BY VICE CHAIRMAN AND MANAGING DIRECTOR, BUS BHAVAN, MUSHEERABAD, HYDERABAD. NOW AT PNBS, VIJAYAWADA, KRISHNA DISTRICT.

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THE REGIONAL MANAGER,, APSRTC, ONGOLE, PRAKASAM DISTRICT.

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DEPUTY CHIEF MECHANICAL ENGINEER,, APSRTC, ONGOLE, PRAKASAM DISTRICT.

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THE DEPOT MANAGER,, APSRTC, MARKAPUR, PRAKASAM DISTRICT.

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...PETITIONER(S)

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AND

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POTHIREDDY SRINIVASA REDDY, S/O.VENKATESWAR REDDY, R/O.BOGOLU POST 86 VILLAGE, ARDHVEEDU MANDAL, PRAKASAM DISTRICT.

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THE LABOUR COURT, GUNTUR DISTRICT, REP.BY ITS PRESIDING OFFICER.

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...RESPONDENT(S):

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased topleased to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Certiorari, calling for records relating to Award in ID.No.128 of 2015 dated 05-09-2019 passed by the Presiding Officer, Labour Court, Guntur District which was published vide G.O.Rt.No.21

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Labour Employment Training and Factories (OP) Departfrient dated 06-012020 and quash the same as arbitrary, illegal and without jurisdiction and pass

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IA NO: 1 OF 2021

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to grant stay of all further proceedings pursuant to the Award in ID.No.128 of 2015 dated 05-09-2019 passed by the Presiding Officer, Labour Court, Guntur including execution proceedings, pending disposal of the Writ Petition and pass

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Counsel for the Petitioner(S):

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1.P DURGA PRASAD SC FOR APSRTC

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Counsel for the Respondent(S):

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1. M PITCHAIAH

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GP FOR SERVICES II

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APHC010033872021

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3458] (Special Original Jurisdiction)

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FRIDAY,THE TWENTY NINETH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA

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WRIT PETITION NO: 2368/2021

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Between:

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ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION (APSRTC), REP. BY VICE CHAIRMAN 86 MANAGING DIRECTOR, BUS BHAVAN, MUSHEERABAD, HYDERABAD. NOW AT PNBS, VIJAYAWADA, KRISHNA DISTRICT.

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THE REGIONAL MANAGER,, APSRTC, ONGOLE, PRAKASAM DISTRICT.

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DEPUTY CHIEF MECHANICAL ENGINEER,, APSRTC, ONGOLE, PRAKASAM DISTRICT.

...PETITIONER(S)

AND

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CHINTA SUBRAHMANYAM, S/O.CHINTA NAGAIAH, R/O.CHANDRAREDDY PALLI, KONGALAVEEDU (P), GIDDALURU MANDAL, PRAKASAM DISTRICT.

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THE DEPOT MANAGER, , APSRTC, MARKAPUR, PRAKASAM DISTRICT.

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THE LABOUR COURT, GUNTUR DISTRICT, REP.BY ITS PRESIDING OFFICER.

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...RESPONDENT(S):

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased toto issue an appropriate writ, order or direction more particularly one in the nature of Writ of Certiorari, calling for records relating to Award in ID.No.129 of 2015 dated 05-09-2019 passed by the Presiding Officer, Labour Court, Guntur District which was published vide G.O.Rt.No.22 Labour Employment Training and Factories (OP) Department dated 06-01-2020 and quash the same as arbitrary, illegal and without jurisdiction and pass

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IA NO: 1 OF 2021

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings pursuant to the Award in ID.No.129 of 2015 dated 05-09-2019 passed by the Presiding Officer, Labour Court, Guntur including execution proceedings, pending disposal of the Writ Petition and pass

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Counsel for the Petitioner(S):

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1.P DURGA PRASAD SC FOR APSRTC

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Counsel for the Respondent(S):

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1.M PITCHAIAH

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2.GP FOR SERVICES II

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The Court made the following:

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COMMON ORDER:

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Heard learned Government Pleader for Services II appearing for

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the petitioners, and Sri M.Pitchaiah, learned counsel for the 1^st respondent.

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Since the issue involved in both the cases is one and the same, I

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deem it appropriate to decide both these cases by way of common order, by taking W.P.No.2367 of 2021 as leading petition.

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The instant writ petition is filed by the petitioners APSRTC challenging the award of the learned Industrial Tribunal, Guntur, in ID.No.128 of 2015 dated 05.09.2019, setting aside the order of removal of the 1^st respondent from service and directing the petitioners to reinstate him into service with continuity of service, back wages and with all attendant benefits.

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The 1^st respondent was initially joined in APSRTC as „Shramik‟ in 2011. Thereafter, he was promoted as mechanic in 2013. He worked as such till 25.02.2015, on which date he was placed under suspension on account of misconduct. Subsequently, he was removed from service. Challenging the said removal, the 1^st respondent herein raised the Industrial Dispute. The said dispute was allowed by way of an award dated 05.09.2019. The said award was published on 16.06.2020, setting aside the order of removal, and the Tribunal directed the respondents to reinstate the petitioner therein with back wages, continuity of service and with all attendant benefits.

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The allegation made against the 1^st respondent was that he had submitted a fake Provisional National Apprenticeship Certificate (PNA) at the time of his selection as the Sharamik. The petitioners‟ Corporation, feeling that the same would tarnish their image and would constitute misconduct in terms of Regulation No.28 of the APSRTC Employees (Conduct) Regulations, 1963,

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had suspended the 1^st respondent and issued a Charge Memo by framing the

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following charges:

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“Charge No.1:

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For having produced fake PNA Certificate bearing No. 76223538 to the Selection Committee at the time of selection to the post of Shramik and secured the job duly cheating the Corporation, which constitutes misconduct under Reg. 28(XV) of APSRTC Employees (Conduct) Reg. 1963.

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Charge No.2:

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For having tarnished the image of the Corporation by producing fake PNA Certificate for securing the job of Shramik, which constitutes misconduct vide Reg. 28(xxxii) of APSRTC Employees (Conduct) Reg. 1963.”

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To which, the 1^st respondent submitted an explanation denying the charges, and thereafter, a domestic enquiry was conducted. In the said enquiry, the 1^st respondent was found guilty by the Enquiry Officer. Thereafter, a show cause notice dated 29.01.2015 was issued by the 4^th petitioner stating as to why the 1^st respondent should not be removed from the service for producing a fake PNA certificate. To the said show cause notice, the 1^st respondent had submitted an explanation dated 13.02.2015 to the 4^th petitioner, who, after considering the same, had passed final orders dated 25.02.2015 removing the 1^st respondent from the service.

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The Tribunal observed that the disciplinary authority was not correct in arriving at conclusions without adducing evidence on its behalf and imposing punishment on the delinquent based on the letters addressed by the authorities without examining the said authority. The learned Tribunal further

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observed that the letter of the authority, Ex.M9, was not exhibited in the enquiry. The Enquiry Officer only referred to the same. He solely based his decision on the statement of the 1^st respondent and passed the order of removal.

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The learned Assistant Government Pleader for Services II relies on the decision of the Division Bench of the erstwhile composite High Court of Andhra Pradesh at Hyderabad in the case of M.A.Waheed Vs. The Labour Court, rep. by its Presiding Officer, Godavari Khani, Karimnagar District and Another. And submits that the petitioner did not disprove the allegations made against him.

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The learned counsel for the 1^st respondent argues that no witnesses were examined. No documents were marked. Merely basing on the letter of the authority, the 1^st respondent was removed from service, which is not sustainable.

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Considered the rival submissions. Basing on the letter addressed by the Commissioner of Employment and Training that the certificate produced by the 1^st respondent was fake, the order of removal was passed. In the enquiry, the 1^st respondent has stated that he did not secure employment on the basis of the alleged certificate Ex.M10. The Commissioner, on whose letter, the 1^st respondent was suspended from service and enquiry was conducted, was not examined, thereby, the 1^st respondent was not able to cross-examine him. The Hon‟ble Apex Court in the case of Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra &

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Ors¹ , observed that the right of cross-examination is an integral part of the principles of natural justice. The Hon‟ble Court referring to its earlier decisions in the case of Transmission Corporation of A.P. Ltd. Vs. M/s Sri Rama

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Krishna Rice Mill² , observed that,

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“28. The meaning of providing a reasonable opportunity to show cause against an action proposed to be taken by the government, is that the government servant is afforded a reasonable opportunity to defend himself against the charges, on the basis of which an inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so only when he is told what the charges against him are. He can therefore, do so by cross-examining the witnesses produced against him. The object of supplying statements is that, the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against him. Unless the said statements are provided to the government servant, he will not be able to conduct an effective and useful cross-examination”.

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The Hon‟ble Apex Court in the case of Ayaaubkhan Noorkhan Pathan, further refers to the decision of the Hon‟ble Apex Court in the case of Rajiv Arora Vs. Union of India & Ors.,³ wherein it was held that,

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“ Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Indian Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar situation. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been

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1 (2013) 4 SCC 465

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2 AIR 2006 SC 1445

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3 AIR 2009 SC 1100

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caused to the appellant by such non-examination. If the basic principles of law have not been complied with or there has been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdiction of judicial review .”

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11. Further held that,

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“30.The aforesaid discussion makes it evident that, not only should the opportunity of cross-examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice”.

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In the present case, the 1^st respondent submitted an explanation denying the alleged misconduct. The 1^st respondent's contention before the Tribunal was that the order of removal was passed without considering the explanation, and without supplying copies of the letter dated 25.05.2013 from the Commissioner of Employment and Training, the letter dated 01.08.2014 from the Personnel Officer of the APSTRC, Ongole. Admittedly, the Commissioner of Employment and Training, Hyderabad, whose letter formed the basis for removing the petitioner from service, was not examined. As held by the Hon'ble Apex Court in the cases referred supra, the right of crossexamination forms an integral part of the principles of natural justice. Non-compliance with the same can be said to be fatal to the case of the 1^st respondent herein. Without examining the person who issued the letter stating that the certificate produced by the 1^st respondent herein was fake and bogus, the petitioners have concluded that the 1^st respondent herein is guilty of the charges. The learned Tribunal further gives a finding that the Ex.M9 was

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not exhibited in evidence. In light of the said finding of the Tribunal, the conclusions arrived at by the petitioners herein against the 1^st respondent are perverse. Therefore, the same are unsustainable. The orders impugned in the writ petitions are accordingly set aside and the matters are remanded to the disciplinary authority for conducting enquiry afresh and pass orders afresh after giving due opportunity to the 1^st respondent herein to cross-examine the witnesses. In the meanwhile, the 1^st respondent shall be reinstated into service and shall be paid back wages at 50%.

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