Allowed

S.Venkataramana Rao v. The Apsrtc

Telangana HC14 Sept 2012WP/13953/2009

Case brief

AI extract

What is this about?

This court allowed the writ petition challenging the removal of a bus conductor. The judgment quashed the removal order and reinstited the petitioner because the disciplinary authority considered unauthorised absence, which was not part of the charge sheets, violating principles of natural justice. The court denied back wages but granted notional pay fixation.

What did the court decide?

The order dated 20.04.2001 and the award dated 15.4.2009 were set aside; the petitioner was ordered to be reinstated as a Conductor without back wages but with notional pay.

S.Venkataramana Rao Vs The Apsrtc — Pension and Retirement Benefits | Telangana HC (2012)

¶1

THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.13953 of 2009

¶2

ORDER:

¶3

This Writ Petition is instituted by a former Conductor of A.P.S.R.T.C challenging the correctness and validity of the award dated 15.4.2009 passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam in I.D.No.103 of 2006.

¶4

2. The petitioner was recruited as a Conductor in the service of the A.P.S.R.T.C on 24.04.1979. While he was working at Waltair Depot, disciplinary action was initiated against him on the count of his unauthorised absence from 23.10.2000 to 19.4.2001. Another set of charge sheet was issued for further unauthorised absence caused subsequently. The case of the petitioner is that he was sick and consequently got treated at King George Hospital, Waltair a reputed General Hospital run by the Government. Because of his sickness, he could not attend to his duties and in spite of his informing about his sickness and consequential inability to attend to duty it was treated as a case of unauthorised absence and on that basis, the Corporation has proceeded against him as a measure of discipline. A look at the order passed by the Depot Manager, Waltair on 20.4.2001 imposing on him punishment of removal from service would throw much light on the subject.

¶5

3. The charge laid in the charge sheet dated 19.7.2000 dealt with the unauthorised absence caused by the petitioner from 26.6.2000 upto 19.7.2000. The second charge sheet dated 24.7.2000 once again repeated the contents of the earlier charge sheet dated 19.7.2000, by alleging that the petitioner remained un-authorisedly absent from 26.6.2000 onwards till date, without prior permission or sanction of leave resulting in inconvenience to the travelling public and loss of revenue to the Corporation. It is therefore appropriate to assume that the first

¶6

charge sheet dated 19.7.2000 is updated on 24.7.2000 and that is the reason why the charge relating to unauthorised absence in both the charge sheets commenced from 26.6.2000 onwards. The second limb of the charge contained in the charge sheet dated 24.7.2000 dealt with misconduct arising out of the writ petitioner producing a O.P. ticket from the King George Hospital to cover his absence from duty from 26.6.2000 upto 22.7.2000 even though Medical Officers are available at the Head Quarters Hospital of A.P.S.R.T.C. In the second page of the order passed by the Depot Manager on 20.4.2001, it is noted as under:

¶7

“The above two charge sheets were sent to his house address through R.P.A.D but did not acknowledge the same and hence the same were returned back on 3.8.2000 and 9.8.2000 respectively. Inspite of that he did not attend to his duty. He was attended on 5.8.2000 and on his request he has been directed to the Medical Officer/Visakhapatnam for thorough medical check up. Afterwards he has been directed to Tarnaka Hospital, Hyderabad and advised him to attend on 23.8.2000. Again he was absented to his duties from 23.10.2000 onwards by submitting K.G.H O.P ticket duly covering the period of absence for his duties.”

¶8

4. While it could be understood that the two charge sheets dated 19.7.2000 and 24.7.2000 might have been sent to his residential address, they could not be delivered by the postal authorities. Hence, they were returned to the sender by the postal authorities. However, no other steps are taken to serve the charge sheets on the petitioner. When the petitioner attended to duty for the first time on 5.8.2000 and tried to reason out for his absence from duties on the ground of his alleged sickness, he was immediately referred to the Medical Officer of A.P.S.R.T.C hospital at Waltair. Thereafter the petitioner was admittedly referred to the Head Quarters Hospital, A.P.S.R.T.C, Tarnaka, Hyderabad. From this statement, it emerges that the Medical Officer at Visakhapatnam obviously was convinced that the petitioner was sick and he needs to receive treatment. Otherwise, there was no necessity for them to refer the petitioner to the hospital at Head Quarters of A.P.S.R.T.C, Tarnaka, Hyderabad where better medical facilities are

¶9

available. But most strangely the order of punishment dated 20.4.2001 refers to the absence of the writ petitioner from duties from 23.10.2000 onwards. The period of absence of the writ petitioner from duties from 23.10.2000 could not have been made part of the two charge sheets drawn by the Depot Manager on 19.7.2000 and 24.7.2000. If the petitioner has again abstained from duties from 23.10.2000 onwards, which amounts to mis-conduct on his part, the same should have been made part of a charge sheet and the comprehensive charge sheet dated 24.7.2000 should have been amended suitably or a fresh charge sheet should have been drawn against him. That has not been done. A misconduct which is not forming part of a charge sheet, has been taken into consideration by the disciplinary authority. It would also be appropriate to notice the findings recorded by the Depot Manager which reads as follows:

¶10

“The K.G.H O.P. ticket certificates are not at all taken into consideration, because there is our dispensary for our R.T.C employees and their families only. Hence, the R.T.C employees working in Visakhapatnam City limits have to get treatment from the Medical Officer/A.P.S.R.T.C/Visakhapatnam Dispensary only and to submit sick certificates issued by these Medical Officers/A.P.S.R.T.C/Dispensary/Visakhapatnam only. If not so he has to obtain counter-signature of our MO/A.P.S.R.T.C/VSP on the sick and fit certificates issued by the other hospital authorities within the stipulated time and submit the same to the concerned authorities, then only, the sick certificates should be taken into cognizance otherwise it will be treated as absence.”

¶11

5. The above finding has been followed by the following statement:

¶12

“As such it is felt that there is no intention to him to work in the Corporation and with that reason only, he has absented to his duties from 26.6.2000 and submitting sick certificates to cover his absence period. If he has any intention to serve the Corporation, he would have attend for his duty without causing any cancellation of services. This clearly speaks his unwillingness to work as Conductor in the Corporation and it is only reason for submitting sick certificates without submitting RTC Hospital Sick.

¶13

As such the charge levelled against him is held proved beyond all reasonable doubts and hence he is guilty of the same.”

¶14

6. I find it extremely difficult to accord approval for the aforementioned conclusions drawn by the disciplinary authority. From a spell of absence from duties by every employee, it does not invariably follow that he has no intention to work in a particular organisation. Absence from duty can be caused some times, for legitimate reasons as well, such as sickness of oneself or the sickness of any of the immediate family members or due to physical inability to report to duty in certain circumstances such as due to involvement in accident caused out of office hours etc. Therefore, a mere absence from service does not necessarily lead to an inference that the employee is not interested in serving the organisation. Infact the attempt should have been made to find out whether petitioner gave legitimate or justifiable reasons for his absence from duty. It is brought on record that on 5.8.2000 when the petitioner reported to duty he was referred to A.P.S.R.T.C Dispensary, Waltair. Thereafter he was further referred for treatment at A.P.S.R.T.C Head Quarters hospital, Tarnaka. Only when an employee is truly sick, he would be referred to the Head Quarters hospital at Tarnaka for receiving treatment. Some times when an employee claims a non existing sickness also he will be referred to the Head Quarters hospital at Tarnaka for purpose of ascertaining the genuineness of the claim. In both types of cases, the Medical opinion of the hospital authorities at Tarnaka would play the most crucial role. Imagine a situation, where the doctors at the Head Quarters hospital, Tarnaka found an employee to be truly sick and also suggest that he deserves to receive treatment. In such a case, there would be some justification or legitimatacy for his absence from duty. Similarly in some cases, if it is detected by the doctors after medical examination that the sickness claimed by the employee is purely imaginary one, then in such cases, the absence from duty lacks justifiability and consequently it can be treated as a misadventure amounting to misconduct. In the instant case having referred the petitioner to the head quarters hospital at Tarnaka, the

¶15

disciplinary authority has failed to apply its mind with regard to the report/diagnosis/comments passed after examining the writ petitioner by the said doctors. It is too grave an infirmity, to be ignored lightly. Further, the alleged absence of the writ petitioner from 23.10.2000 onwards, which was never made part of the two charge sheets drawn on 19.7.2000 and 24.7.2000 has been taken into consideration. Simply it could not have been part of those two charges because the charge sheets were drawn in much prior to the alleged absence from 23.10.2000. In such circumstances, it could be become fatal, is as much as the petitioner had no opportunity whatsoever to defend himself with regard to the said allegation. In other words, the petitioner has been condemned unheard with regard to allegation of his absence from duty from 23.10.2000 onwards. No person can be condemned unheard. Any such act of unilateral condemnation would amount to violation of principles of natural justice.

¶16

7. Time and time again, this Court has been frowning upon the orders passed by the Depot Managers who take into account and consideration subsequent periods of absence from duty while dealing with specific charges of unauthorised absence against the employees. Inspite of the same, A.P.S.R.T.C has not taken the remedial action of drawing up ‘dos and don’ts’ by the disciplinary authorities.

¶17

8. The learned counsel for the writ petitioner, in my opinion, very rightly has drawn my attention to the order dated 12.06.2009 rendered by this Court in W.P.No.11518 of 2009, to which A.P.S.R.T.C is a party incidentally. Wherein it was held as under:

¶18

“It is so obvious that the alleged misconduct said to have been committed by the writ petitioner by his unauthorized absence in the month of December, 2006 and during the month May, 2009 could not have been formed part of charge sheet issued in October, 2006. The disciplinary proceedings initiated through the charge memo will have to be finalized uninfluenced by any other factors or considerations. If extraneous material forms part of consideration while imposing a major

¶19

punishment, such as removal from service, the entire exercise gets vitiated, for, the employee concerned would not have had an opportunity to defend himself against this extraneous material. No person should ever be condemned unheard. The basic right to have an opportunity before being condemned, is considered to be too primordial to be dispensed with. Long years ago, it has been recognized that an adverse order passed against any person without providing any opportunity whatsoever is liable to be declared as to have been vitiated for failure to comply with the principles of natural justice, apart from failing to comply with the procedural safeguards evolved through the Disciplinary Control Rules/Regulations framed by the Corporation. In fact, this very question has been considered by a Division Bench of this Court in its judgment rendered on 05.04.2005 in W.A.No.769 of 2005, to which the APSRTC is a party.

¶20

It is rather sad that the orders which are likely to visit the parties with serious consequences, such as removal from service or dismissal from service, are passed casually without any serious application of mind by the disciplinary authorities and the APSRTC itself does not appear to be updating and advising correctly and properly all its disciplinary authorities not to commit the same mistakes all over again.”

¶21

9. The judgment rendered in the above referred case squarely applies to the present fact situation in this case. But, however, the writ petitioner shall not be entitled to derive any benefit from out his absence. Therefore, I set aside the order dated 20.04.2001 passed by the Depot Manager, Waltair Depot as well as the award dated 15.4.2009 passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam in I.D.No.103 of 2006 and order the respondent-A.P.S.R.T.C to reinstate the writ petitioner back to duty as a Conductor. The petitioner is not entitled for payment of back wages. But, however, he would be entitled to count the service rendered by him upto 20.4.2001 minus the period of unauthorised absence for the purpose of terminal benefits. However, the petitioner would also be entitled for fixation of his pay on notional basis on

¶22

reinstatement and it will not entitle him to claim any arrears or any monetary benefit there from.

¶23

10. Accordingly, the writ petition is allowed to the extent indicated supra. No order as to costs.

¶24

_______________________________ NOOTY RAMAMOHANA RAO,J

¶25

Date:14.09.2012. Gk.

¶26

THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO

¶27

WRIT PETITION No.13953 of 2009

¶28

Date:14.09.2012

¶29

Gk.

S.Venkataramana Rao v. The Apsrtc

Case brief

What is this about?

What did the court decide?

S.Venkataramana Rao v. The Apsrtc

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

The Secretary, Siddhartha Academy of General and Vs The Appellate Authority under the

P.Ramanujayya Vs The Government of A.P.

Y.Md. Kaleem, Vs Mr. Dinakar Babu, IAS

Md.Gulam Mohammed, Vs The Regional Manager

T.v.Gangadhara Rao Vs Adusumilli Gopalakrishnaiah

C.Venkatarathnam Vs The Deputy General Manager