Remanded

Md.Ghouse Pasha v. Andhra Pradesh State Road Transport Corporation

Telangana HC21 Aug 2012WP/21138/2012

Case brief

AI extract

What is this about?

The single-judge bench held that considering extraneous misconduct outside the charge sheet vitiates the punishment order. The court condoned the appeal delay and remanded the matter for reconsideration of punishment, rejecting removal in favor of a suitable penalty. The petitioner is not entitled to back wages due to the delay.

What did the court decide?

Appeal delay condoned. Appellate authority directed to reconsider the matter afresh and substitute a suitable punishment for removal from service; back wages denied.

Md.Ghouse Pasha Vs Andhra Pradesh State… — Pension and Retirement Benefits | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.21138 OF 2012

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ORDER:

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This Writ Petition is instituted challenging the validity of the order passed by respondent No.4, Depot Manager, Sangareddy Depot of APSRTC on 09.04.2009, imposing the punishment of removal from service on the petitioner, which was confirmed in appeal on 26.04.2012 by respondent No.3, Deputy Chief Traffic Manager.

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2. The writ petitioner appears to have joined the services of the APSRTC as a casual Driver in the year 1997 and subsequently, his services were regularised with effect from 01.01.1999 through an office order passed on 20.11.1999 by the Regional Manager. At the relevant point of time, the petitioner was working as a Driver attached to the Sangareddy Bus Depot. He seems to have applied for leave from 31.10.2007 up to 20.11.2007. Hoping that the said leave would be sanctioned, he availed the same. But, however, it was neither sanctioned nor rejected in time. For the unauthorised absence thus caused, he has been subjected to disciplinary proceedings, which ultimately culminated in the orders passed by the Depot Manager, Sangareddy on 09.04.2009, imposing the punishment of removal from service with immediate effect.

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3. It will be appropriate to notice that based upon a report submitted by the Traffic Inspector, Sangareddy, on 16.11.2007 about the absence from service by the petitioner, charge sheet was issued on 20.11.2007 and in spite of the explanation offered by the petitioner on 26.11.2007, a domestic enquiry was conducted and the Enquiry Officer has finalised his enquiry and submitted the report holding the petitioner guilty of the charge on 20.11.2007 and thereafter, a showcause notice was issued on 17.01.2008 by the Depot Manager proposing to impose the punishment of removal from service on the

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petitioner. The petitioner has submitted his detailed explanation on 08.04.2008 opposing imposition of such a major punishment. However, without finalizing the disciplinary proceedings, the Depot Manager seems to have entertained the petitioner to duty. While he was thus serving, the Traffic Inspector seems to have filed another report on 09.04.2009 before the Depot Manager informing him of the unauthorised absence of the petitioner on 18.03.2009, 23.03.2009, 01.04.2009 and 08.04.2009 without any intimation. Taking these aspects into account, the Depot Manager passed the impugned order on 09.04.2009 imposing the punishment of removal.

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4. It is now contended that the allegation of unauthorised absence from duty by the petitioner on 18.03.2009, 23.03.2009, 01.04.2009 and 08.04.2009 are not subject matter of consideration at all of the domestic enquiry and hence, the Depot Manager has taken into account and consideration extraneous material available while imposing the major punishment of removal from service and hence, the said order is vitiated. It is also submitted that an appeal was submitted to the Depot Manager by the petitioner on 30.06.2009. But, however, there is no response and hence, the petitioner has drawn another appeal on 15.02.2012 addressing the Deputy Chief Traffic Manager and the Deputy Chief Traffic Manager, the appellate authority, has rejected the said appeal only on the ground that the appeal is time barred.

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5. It will be appropriate to notice that the charge memo was drawn against the petitioner on 20.11.2007 for his alleged misconduct of abstaining from duty from 31.10.2007 up to 20.11.2007. Therefore, while finalising the disciplinary proceedings with regard to the said charge of unauthorised absence from duty, the Depot Manager could not have possibly referred to his subsequent conduct of abstaining from duty on 18.03.2009, 23.03.2009, 01.04.2009 and 08.04.2009. The subsequent days of absenteeism are never made part of disciplinary

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proceedings. Time and time again, this Court has been reiterating that taking into account and consideration some other misconduct, which is not part of the charge sheet drawn against an employee, is likely to leave a strong impression in the mind of the employee concerned that he has been penalised for the misconduct alleged against him in the charge sheet but, however, he was penalised for the subsequent misconduct alleged in the punishment order. It is fundamental that no man should be condemned unheard. Therefore, reference made to the subsequent misconduct of unauthorised absence can only be described as vitiated factor. It is high time, the Corporation instructed all their Depot Managers and other disciplinary authorities not to indulge in such activity.

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6. For the proven misconduct, the Corporation is entitled to impose upon employees any of the penalties specified in Regulation 8 of APSRTC Employees (CC & A) Regulations, 1967. But, however, such punishment must be commensurate. For every misconduct, removal from service is not only the punishment that can be imposed. There should have been a proper assessment with regard to the punishment that is liable to be imposed in the circumstances. It is important to note that the punishment must meet the misconduct and it must also meet the offences. Imposing of harsh or disproportionate punishment reflect a mechanical and pre set dispossession of mind on the part of the disciplinary authorities. Any such attribute of the disciplinary authority vitiates the entire exercise.

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7. In the instant case, the appeal preferred by the petitioner has been rejected by the appellate authority solely on the ground that it is time barred. If the period is reckoned from 15.02.2012, the order of the appellate authority appears to be a justified one. But, however, it must be remembered that the petitioner has submitted an appeal to the Depot Manager on 30.06.2009. The same was displayed at Page No.21 of the paper book filed in support of this Writ Petition. An appeal

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against the orders of the Depot Manager would not lie to him. Therefore, it is a case where the petitioner has erroneously approached the Depot Manager on 30.06.2009. The Depot Manager, in fact, should have passed on the appeal to the competent appellate authority on his own. Therefore, there appears to be some justification for condoning the delay in preferring the appeal. Therefore, in the interest of justice, I condone the delay in preferring the appeal by the petitioner to the Deputy Chief Traffic Manager on 15.02.2012.

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8. Since the petitioner himself is responsible for the delay, he will not be entitled to be paid back wages. Keeping this factor also in mind, the appellate authority shall reconsider the entire matter afresh and pass appropriate order substituting a suitable punishment to that of removal from service for the proven misconduct of the petitioner. Let this exercise be completed before the end of September, 2012 and the decision of the appellate authority be communicated to the petitioner.

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9. With this, the Writ Petition stands disposed of as indicated supra after hearing the learned Standing Counsel for APSRTC, Sri H. Venu Gopal. There shall be no order as to costs.

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10. Consequently, the Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.

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________________________________ NOOTY RAMAMOHANA RAO, J August 21, 2012 MD

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THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO

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WRIT PETITION No.21138 OF 2012

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August 21, 2012

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Md.Ghouse Pasha v. Andhra Pradesh State Road Transport Corporation

Case brief

What is this about?

What did the court decide?

Md.Ghouse Pasha v. Andhra Pradesh State Road Transport Corporation

Case brief

What is this about?

What did the court decide?

What the court decided

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