Allowed

Mulakaledu Anwar Basha, v. The Chairman-cum-Presiding Officer

Telangana HC13 Apr 2010WP/15569/2003

Case brief

AI extract

What is this about?

This case concerns the reinstatement of an APSRTC driver removed for producing a fake educational certificate. The Court held that while disciplinary action is permissible for false certificates, removal under strict regulations is inappropriate for drivers as no formal qualifications are prescribed for the post. The Court set aside the removal order and directed authorities to reinstate the petit

What did the court decide?

The award passed by the Labour Court was set aside, and liberty was given to the petitioner to make a representation for reinstatement or alternative punishment.

Mulakaledu Anwar Basha, Vs The… — Pension and Retirement Benefits | Telangana HC (2010)

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HONOURABLE SRI JUSTICE G.CHANDRAIAH

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WRIT PETITION NO: 15569 of 2003

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ORDER:

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This writ petition is filed seeking a writ of certiorari calling for the records relating to I.D.No.158 of 1999 on the file of the Industrial Tribunal-cum-Labour Court, Ananthapur, dated 12/02/2002 and to quash the same and consequently to direct the second respondent to re-instate the petitioner into service with continuity of service and back wages and all monitory benefits.

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The case of the petitioner is that he was appointed as a casual driver in APSRTC, Kalyandurg Depot, Ananthapur Depot, vide proceedings No.1P1/684(1)/95-KDG dated 02/05/1995. While submitting the application for appointment to the post of driver, he submitted Transfer Certificate issued by the Head Master M.P.P.Elementary School, Linganapalli, Rapthadu Mandal, Ananthapur District. It is alleged that after verification of the genuineness of the transfer certificate it was found to be nongenuine. He was issued a charge sheet dated 16/12/1995 with regard to the production of non-genuine Educational Transfer Certificate. In response to the same, he submitted an explanation denying the charge. However, without conducting any enquiry into the matter, he was terminated from the service by proceedings dated 12/06/1996. Questioning the said removal order, he filed W.P.No.7555 of 1996 on the file of this Court. The said writ petition was allowed setting aside the order of termination dated 12/06/1996 as illegal for not conducting any enquiry and liberty was given for conducting fresh enquiry in pursuance of the charge

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sheet dated 16/12/1995. Pursuant to the orders of this Court, the Chief Inspector (E), Ananthapur, was appointed as enquiry officer to conduct enquiry into the charges. The petitioner participated in enquiry and stated that he studied up to 5^th class at P.S.Elementary School, Linganapalli, Rapthadu Mandal, Ananthapur Ditrict. He also stated that his father brought the said transfer certificate bearing No.1020 from the said school. He also knows reading and writing Telugu. Without considering his explanation, the second respondent issued the order of removal relying on the letter issued by the Head Master vide No.1/684(6)/95-JDG dated 15/09/1998. He stated that he was selected for the post of driver and for which post, no educational certificates are to be filed and as per the circulars issued by the Corporation, reading and writing Telugu is enough. Without considering the same, the petitioner was removed from service. Aggrieved by which, he filed an appeal before the appellate authority and the said appellate authority by order dated 09/11/1998 dismissed the appeal. Aggrieved by the same, he also filed a review application and the same was also dismissed. When he raised an industrial dispute in I.D.No.158 of 1999, by award dated 12/02/2002 the said ID was dismissed. Aggrieved by which, the present writ petition is filed.

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Learned counsel for the petitioner submits that the allegation that was made against the petitioner that he produced a fake transfer certificate of studying 5^th class is denied. He submitted that the petitioner studied 5^th class in P.S.Elementary School, Linganapalli, Ananthapur District, and the relevant certificate was brought by his father which is not known to the petitioner and the

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petitioner is not aware of the fakeness of the certificate produced by him. He also submits that for the post of driver under the regulations the necessary requirement is that one should have a heavy driving licence and no educational qualifications are prescribed. As far as the educational qualification is concerned, to hold the post of driver reading and writing Telugu is sufficient. He submits that, without admitting the allegation that the petitioner produced false 5^th class certificate, he knows reading and writing Telugu which is pre-requisite to hold the post of driver in addition to having heavy driving licence. He also submits that the effect that in case where it is found that any of the candidate who holds the post of driver found to have produced a false educational certificate need not be removed from service as the educational qualifications are not prescribed in holding the post of the driver in view of regulation 8(i) of A.P.S.R.T.C.Employees (CC&A) Regulations 1967. He also submitted that in the similar case where a driver by name M.Govinda Naik, E.No.575720, Ex-casual driver, who was removed from service, the corporation by taking a lenient view on the ground that the educational qualifications have not been prescribed issued the proceedings No.P1/1P(13)/2001PO.IV dated 20/03/2002 whereunder the order of removal issued by the DM/RDG was set aside and he was directed to be reinstated into service as driver. He also relied upon a judgment of this Court dated 27/02/2008 in W.P.No.6275 of 2000 where this Court in the similar circumstances of the case on hand directed the petitioner to file a fresh representation ventilating his grievances along with the orders passed in the earlier writ petitions, before the Regional Manager, West Godavari, Eluru, within a period of four weeks from the date of receipt of a copy of

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the order and that the respondents shall entertain the same and pass appropriate orders and consider the case of the petitioner for fresh appointment as driver. Therefore, he submitted that the petitioner is entitled for reinstatement into service by setting aside the order passed by the first respondent in the ID.

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On the other hand, the learned Standing Counsel for the respondent-Corporation submitted that the petitioner was removed from service on the charge “for having produced non-genuine educational qualification certificate issued by Head-Master, P.S.Elementary School, Linganapalli, Ananthapur District (T.C.No.1020) and shown education as 5^th at the time of recruitment of Drivers”. She also submitted that there was a condition in appointment order in clause (iii) that in the event of licence, Educational Certificate or other records are found to be non-genuine at a later date, even after appointment orders itself, is self-operation for appointment. Following the same, on verification of school records, it was found that the Transfer Certificate bearing No.1020 is false. Therefore, the petitioner was rightly removed by the revisional authority and the same was confirmed by the appellate authority who also dismissed the review. She also submits that considering the entire record, the ID filed by the petitioner was dismissed by the first respondent. Therefore, the impugned award does not require any interference by this Court under Article 227 of the Constitution of India.

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Admittedly, the petitioner was appointed as a casual driver on 02/05/1995. On the ground that he produced a false educational certificate he was removed from service on 15/09/1998. Aggrieved by the same he filed an appeal. The

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appellate authority rejected the appeal by order dated 09/11/1998. Aggrieved by which he filed a review petition and the same was also dismissed. Whereupon, he raised an industrial dispute in I.D.No.158 pf 1999 and the same was dismissed by the labour Court by award dated 12/02/2002. Aggrieved by which the petitioner filed the present writ petition.

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As submitted by the learned counsel for the petitioner, admittedly, to hold the post of driver, there is no requirement of educational qualifications except reading and writing Telugu. What is required under the regulation is that one must have a heavy driving licence which is held by the petitioner and reading and writing Telugu is also known to the petitioner. The petitioner was removed from service on the ground that he produced a false 5^th class certificate stating that it has been issued by the Head Master, M.P.P.Elementary School, Linganapalli, Rapthadu Mandal, Ananthapur District. On addressing a letter to the Head Master, the Head Master appears to have wrote a letter informing that the transfer certificate that was stated to have been issued by the said Head Master was not correct. The explanation of the petitioner was that though he studied 5^th class in the said school, he could not obtain any certificate, but in view of that he wanted to make an application seeking appointment to the post of driver. His father obtained the said certificate from the school but he is not aware of such a false certificate. Circular No.R3/684/(30)/99-HRQ dated 23/12/1999, which was issued by the office of the Managing Director, Musheerabad, Hyderabad, by way of clarification in response to a letter dated 10/05/1999 addressed by Regional Manager, Tirupathi, in his letter No.E1/684(b)/97-RM (T) reads as

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under:

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“The clarification was sought in regard to appointment of Drivers whose educational certificate are found to be non-genuine, but their driving licence have been found to be genuine, has been examined with reference to the earlier instruction on the subject.

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As per the existing Regulations, applicants for the post of Driver have to be literate but no formal minimum educational qualifications are prescribed. Even if the candidate are found to have failed in the literacy test, there is a provision to give them time and repeat the literacy test after the specified period, to enable them to acquire the ability to read and write. As such, possessing any educational qualifications is not a pre-requisite for the candidate for appointment to the post of Driver.

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In view of the above provision, educational certificates produced by the candidates for the post of driver, which are found to be non-genuine on verification may be ignored. However, all candidates irrespective of educational certificate have to pass the literacy test before selection and have to be directed for medical examination to assess their age. The candidate has to be appointed only if the age so assessed in falling within the prescribed age limit. In case the candidate’s educational qualification is found to be genuine, the date of birth as recorded in certificate only shall be taken into account. In case of non-genuine certificate, the date of birth as assessed by board shall be taken into account.

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In the circumstances, it is hereby clarified that the educational certificate produced by the candidate, although found non-genuine, may be

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kept in the P.Case duly making an entry in the S.R. so that candidate will not have the opportunity of producing another certificate at the time of promotion for the post of Asst.Depot Clerk.

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However, further I submitted a nongenuine educational certificate enquiry/action should be initiated against the employee by imposing a relatively lighter punishment other than the removal of dismissal under Regulation 8 (i) of the A.P.S.R.T.C. Employees (CC & A) Regulations 1967 duly following the procedure.”

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As could be seen from the above, the relevant portion of the aforesaid letter is that there is no bar for initiating the disciplinary action against the persons for holding the post of driver who are alleged to have produced the false educational certificates but the imposition of punishment is relatively lighter punishment than that of a removal from service under 8 (i) of the A.P.S.R.T.C. Employees (CC & A) Regulations 1967. This circular was issued by the Corporation on the ground that the person who makes an application to the post of driver and possessing any educational qualifications is by then is not a pre-requisite for the candidates seeking for appointment to the post of driver. The petitioner also filed a meeting paper vide proceedings No.P1/1P(13)/2001-PO.IV dated 20/03/2002 issued by the managing director in respect of one Govinda Naik who was a driver removed from service on the ground of production of a false educational certificate. In the said proceedings, the Managing Director while setting aside the order of removal was directed the authority concerned to reinstate the petitioner as a casual driver. The circular dated 23/12/1999 issued by the Managing Director by way of clarification to the Regional

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Manager, APSRTC, Tirupathi Region, was not brought to the notice of the Labour Court who dealt with the matter. The petitioner also relied upon by the judgment rendered by this Court in the similar circumstances in W.P.No.6275 of 2000 dated 27/02/2008 the petitioner whereunder sought for issuance of a writ of mandamus declaring the action of the 3^rd respondent/Depot Manager in disengaging the petitioner from service vide Proc.No.P1/145(7)/92-MD, dated 30/06/1993 which was confirmed by R-1 and R-2 vide Proc.No.PA/19/(69)/95-VSP(u), dated 16/08/1997 and Proc.No.Steno/19(51)/97-RM Visakhapatnam dated 16/08/1997 and Proc.No.Steno/19(51)/97-RM Visakhapatnam dated 20/05/1999 respectively, while aditting that the qualification required or the post of Driver is read and write simple sentences and disengaging the petitioner from services on the allegation that he submitted non-genuine educational certificate for the purpose of recruitment to the post of driver after completion of nearly two years of service as illegal, unjust, unwarranted, contrary to Regulation 19 (2,b) of APSRTC Service Regulations, against to the principles of natural justice and as such set aside the same with a consequential direction to the respondents herein to reinstate the petitioner forthwith with all consequential benefits in the interest of justice. Following the earlier judgment rendered by this Court in the similar circumstances in W.P.Nos.19892 of 1999 and 4921 of 2000 which were disposed of by this Court directing the petitioner to approach the appellate authority, this Court disposed of the above writ petition as under:

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“In view of the above, without expressing any opinion on merits, the petitioner is directed to file a fresh application ventilating his grievances

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along with the orders passed in the above writ petitions before the Regional Manager, West Godavari, Eluru within a period of four weeks from the date of receipt of a copy of this order and the respondents shall entertain the same and pass appropriate orders and consider the case of the petitioner for fresh appointment as Driver.”

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Admittedly, the first respondent/Labour Court had no opportunity of considering the circular dated 23/12/1999 issued by the respondent corporation and the same was not brought to the notice of the first respondent. But the petitioner placed reliance on the said circular for the first time which was not placed before the Labour Court. Having regard to this fact the existence of a circular which is in favour of the petitioner was not considered by the Labour Court. As the same was not available before it, the first respondent cannot be found fault with it, but had it been placed before the first respondent the decision could have been different than that of the decision rendered by it. But for that purpose remitting the matter back to the first respondent will not serve the purpose as admittedly there is a circular issued by the respondent-Corporation in favour of the petitioner for imposing the lighter punishment than that of removal from service for producing the fake educational qualifications as the educational qualifications to hold the post of driver is not imposed but what is required is read and write which is known to the petitioner in this case. The petitioner is also denied the allegation made against him that he did not obtain any certificate from school but he studied in the school. But his father had obtained the certificate and he was not given any opportunity for the same. But the fact remains that even disregarding the fact whether he does possess the educational

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qualifications or not as it is not required under the law he cannot be found fault. Having regard to the said situation, the Corporation issued the said circular for imposition of lighter punishment. In the very similar case the petitioner was removed from service that was confirmed by the appellate authority and review was dismissed and the same was confirmed by the Labour Court. But there was something to understand that the Labour Court cannot be found fault with for non-consideration of the case of the petitioner on the ground that the relevant circular was not placed before the Labour Court, but certainly the authorities who passed the order of removal on the alleged allegation against the petitioner ought to have considered the same because the said circular was issued by the Head of the Department of the Corporation which is supposed to be in the knowledge of the authorities under the Corporation. But the said aspect was not considered by the authorities under the regulations.

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For the above reasons, the award passed by the Labour Court is set aside and consequently, liberty is given to the petitioner to make a representation to consider his case for reinstatement afresh to the post of driver in view of the circular No.R3/684/(30)/99-HRQ dated 23/12/1999 addressed by the office of the Managing Director, Musheerabad, Hyderabad-20, to the Regional Manager, APSRTC, Tirupathi Region and also the proceedings No.P1/1P(13)/2001-PO.IV of the office of the Managing Director, Musheerabad, Hyderabad, dated 20/03/2002 in case of E.No.575720, Ex-casual driver, Rayadurg Depot, and also keeping in view the orders of this Court in the similar circumstances, within a period of two months from the date of receipt of a copy of this order.

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The Writ Petition is accordingly disposed of. No order as to

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costs.

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________________ G.CHANDRAIAH, J

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13^th April, 2010

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SKM

Mulakaledu Anwar Basha, v. The Chairman-cum-Presiding Officer

Case brief

What is this about?

What did the court decide?

Mulakaledu Anwar Basha, v. The Chairman-cum-Presiding Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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