Allowed

Shaik Hassan Ahmmad S/o Nagpal Meera v. The Depot Manager, Apsrtc

Telangana HC3 Dec 2012WP/6917/2006

Case brief

AI extract

What is this about?

This writ petition challenged a Labour Court award confirming removal for producing a non-genuine driving licence. The court set aside the removal order due to lack of evidence regarding the licence's genuineness and lack of jurisdiction, while directing reinstatement with an opportunity for a fresh inquiry.

What did the court decide?

Removal order set aside; Petitioner directed to be reinstated with all service benefits including back wages; Fresh domestic enquiry permitted.

Shaik Hassan Ahmmad S/o Nagpal Meera Vs The… — Labour and Industrial Disputes | Telangana HC (2012)

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THE HON'BLE SRI JUSTICE N. RAVI SHANKAR

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WRIT PETITION No.6917 of 2006

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ORDER:

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Heard Sri M.Pitchaiah, the learned counsel for petitioner and Sri Kallakuri Srinivasa Rao for respondent Nos.1 to 3 and the learned Government Pleader.

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2. In this writ petition under Article 226 of the Constitution, the petitioner is seeking a writ of Certiorari or any other appropriate order for setting aside the Award dated 04.01.2005 passed in I.D.No.269 of 1998 on the file of the Labour Court, Guntur, insofar as it went against him.

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3. The admitted circumstances under which I.D.No.269 of 1998 and the present writ petition came to be filed can be stated thus. The petitioner was appointed as Driver in the first respondent depot i.e. Nellore I Depot of Nellore District of the Andhra Pradesh State Road Transport Corporation (for short RTC) on 07.02.1989 and he worked in the first respondent depot upto 06.07.1994 and thereafter he was transferred to the second respondent depot i.e. Rapur depot of RTC. The allegation of the petitioner is that when he went to the second respondent to join duty he was neither permitted to join there, nor was he permitted to report to duty in the first respondent. The other details on this aspect are not necessary.

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4. A disciplinary enquiry was commenced against him on 25.05.1994 on the following two charges.

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“1. For having produced the non-genuine driving licence No.5837/DL/83 dt.2-12-83 with Badge No.18233 issued by the Addl. Licencing Authority, Udayapur as having authorized to

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drive heavy goods vehicle and renewed by the Addl. Licencing Authority, Guntur with endorsement to authorize to drive heavy passenger vehicles which constitute mis-conduct u/r.28(xxvii) of APSRTC Employees’ (conduct) Regulations, 1963.

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2. For having cheated the corporation and secured the post of driver by producing the non-genuine driving licence at the time of selection of drivers which constitutes mis-conduct u/r.28(xxxi) of APSRTC Employees’ (conduct) Regulations, 1963.”

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Thus it is clear that charge No.1 says that originally the petitioner had a driving licence for driving heavy goods vehicles issued by the Additional Licencing Authority, Udayapur and that was a nongenuine one, but the Road Transport Authority (RTA), Guntur subsequently made an endorsement, while renewing it to the effect that the petitioner can drive heavy passenger vehicles also thus adding another class of vehicles to that licence.

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5. Subsequently, the enquiry officer after having held a domestic enquiry submitted his report to the effect that both the above charges were proved. Basing on the said report, the first respondent by proceedings dated 22.10.1996 removed the petitioner from service. After availing the departmental remedies against his removal order, the petitioner raised the industrial dispute i.e. I.D.No.269 of 1998 before the Labour Court.

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6. Before the Labour Court, the petitioner, in substance, raised three grounds for challenging his removal order. The first is that the first respondent merely acted on a telegram and a letter of the Additional Licencing Authority, Udayapur that the original licence produced by the petitioner which purports to have been issued by the said authority is not a genuine one and the RTC did not adduce

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any oral evidence of any official from the Additional Licencing Authority, Udayapur to prove the same in the domestic enquiry. Under this ground, it is also stated that the enquiry officer merely acted on the above letters in giving his report, the first respondent also acted upon the same and the Labour Court without looking into this aspect, confirmed the said finding. The argument of petitioner’s counsel is that the above finding can thus be said to be based only on surmises without any evidence worth its name to prove the said charges. In that connection, the petitioner also challenged the validity of domestic enquiry but the Labour Court did not give any finding on that aspect and therefore the Award can be said to be illegal.

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7. The second ground is that the removal order was passed by the first respondent on 22.10.1996 by which date the petitioner already stood transferred to the second respondent and consequently the first respondent had no power to issue the removal order as he was no longer an employee in the first respondent Depot. The third is that Regulation 28(xxvii) and Regulation 28 (xxxi) of the Andhra Pradesh State Road Transport Corporation Employees’ (Conduct) Regulations, 1963 (for short Regulations) mentioned in the both the charges are referable to some other misconducts but not the production of alleged nongenuine driving licence and as such the charges themselves are unsustainable.

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8. The Labour Court in its award negatived the case of the petitioner and upheld the removal order. It did not give any finding on the validity of domestic enquiry or did not discuss grounds 1 and 3 and did not give any finding on them. It however relied upon

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a scheme framed by the RTC through a circular dated 11.08.2000 which was issued by the office of the Managing Director of the RTC, Hyderabad, wherein the RTC decided to consider the cases of the removed drivers who got appointment by producing nongenuine driving licences and appoint them again afresh as casuals against the approved vacancies if they secure valid driving licence to drive heavy passenger vehicles. Basing on this circular, the Labour Court directed reinstatement of the petitioner as a fresher on the production of a genuine driving licence by him. The learned counsel for the petitioner brought to my notice that subsequently RTC authorities i.e. the Personnel Officer of RTC of the first respondent issued proceedings No.E1/E5/ 372(35)/98-RM(N) dated 06.01.2006 appointing him as a fresher on production of the required driving licence. The plea of the petitioner is that the charges against him are baseless and the Labour Court also did not consider that aspect.

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9. The learned counsel for petitioner mainly relied upon the first ground raised before the Labour Court and contended that even the Labour Court did not appreciate his contention about the absence of evidence of any official from the Additional Licencing Authority, Udayapur and pointed out that since the Labour Court did not give any finding about the validity of domestic enquiry and the absence of evidence on the first charge, that is illegal. Regarding the third ground, he repeated the contentions which are already referred to supra. So far as second ground is concerned, the Labour Court just mentioned it saying that both sides have let in evidence but upheld it.

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10. The first ground of the petitioner is now taken up. The

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petitioner’s counsel filed copies of depositions of witnesses and documents examined and marked in the course of inquiry before t h e Labour Court and also in the domestic enquiry. M.W.1 T.Muralikrishna was the then depot manager of first respondent from April 1992 to June 1993. M.W.2 A.Venugopal is another official of the first respondent during the relevant period, while M.W.4 K.Adinarayana was the then manger of the first respondent’s office. M.W.3 Md.Jamal was the then Junior Assistant of the office of RTA, Guntur and his evidence is only relevant to show that even the earlier licence produced by the petitioner was one relating to a heavy goods vehicle and not meant for driving heavy passenger vehicles like buses and his office only made an endorsement subsequently while renewing it adding heavy passenger vehicles.

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11. It is not necessary to go into their evidence in detail. Their evidence would show that on the first charge, they only relied upon certain communications and telegrams received from the office of the Additional Licencing Authority, Udayapur which showed that the licence produced by the petitioner was a non-genuine one. To repeat, it may be noted that nobody was examined from the office of Additional Licencing Authority, Udayapur to speak about the genuineness or otherwise of the driving licence originally produced by the petitioner.

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12. The learned counsel for RTC could not bring to my notice any circumstance or anything from the record to show that the finding of the enquiry office that the petitioner produced a nongenuine driving licence is based on any oral evidence of any official from Additional Licencing Authority, Udayapur in support of

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the communications sent by the latter.

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13. In this connection, Sri M.Pitchaiah relied upon a decision of this Court given in N.Subramanyam v. Chairman, Visakhapatnam, Port Trust and Ors^[1] . This decision pertains to a case where an employee of a Vizag Port Trust was removed on a charge that he produced a false educational certificate. That removal order was set aside by this Court on the ground that since nobody including the Headmaster of the school which purported to have given the certificate was examined, the said charge that the certificate in question was a false certificate cannot be held to have been proved. This of course was a case where the proceedings leading to removal were challenged before this Court under Article 226.

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14. Be that as it may, the above decision squarely supports the contention of Sri Pitchaiah as in the present case also both the enquiry officer, the first respondent and even the Labour Court merely acted on the telegram and letter from Additional Licencing Authority, Udayapur. It should be noted that to prove a document, the person who issued or sent that document i.e. the letter and telegram in this case or the office concerned or somebody who has knowledge about that letter and its contents with reference to the records about the driving licence in question should be examined and unless evidence of such person is let in and he is subjected to cross-examination on behalf of the delinquent it cannot be said that such a charge relating to production of a nongenuine driving licence in this case can be said to have been proved.

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15. It may be noted that a Labour Court of course when the

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domestic enquiry is challenged, is supposed to give a finding on its validity and even where the evidence is found to be insufficient to hold that the said charge is proved, the management can also be given an additional opportunity to lead additional evidence. In the present case, it should be noted that though the Labour Court Award does not show that it gave any such opportunity, yet the management examined four witnesses before the Labour Court who were shown as M.Ws.1 to 4 and a perusal of their evidence would also show that they gave it only on the basis of the telegram and the letter of the Additional Licencing Authority, Udayapur and they did not take any steps to examine the concerned person or official from the office of that authority. In these circumstances and having regard to the fact that the management has let in evidence before the Labour Court, it follows that the matter need not be remanded to Labour Court for giving a fresh opportunity to the management to lead additional evidence on the above aspect.

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16. Thus, in view of the decision in N.Subramanyam’s case ( 1 supra) and for the aforesaid reasons, it follows that the first ground has to be upheld and the removal order has to be set aside. Since grounds 2 and 3 have also been argued by Sri Pitchaiah, they are also now taken up for answer. So far as the second ground is concerned, it may be noted that by the date of removal order which is 22.10.2006, the petitioner already stood transferred from the first respondent Depot to the second respondent and despite the same, it was the first respondent who issued the removal order. No rule or provision is brought to my notice by the learned counsel for RTC that notwithstanding petitioner’s transfer to the second respondent Depot, the first respondent still retains the jurisdiction over him to pass removal orders in conclusion of

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disciplinary enquiries. In view of the same, the second ground has also to be upheld concluding that the first respondent has no jurisdiction to pass such removal order in question.

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17. Then coming to the third ground, it is true that clause (xxvii) of Regulation 28 relates to habitual late attendance and unauthorized absence, while clause (xxxi) deals with any act not specifically mentioned in the other clauses of that Regulation 28 which is detrimental to the interests of the RTC. It is true that both these clauses in Regulation 28 do not relate to production of nongenuine driving licence. It may however, as pointed out by Sri Srinivasa Rao, be noted that Clause (ii) of Regulation 28 deals with the misconduct of driving RTC vehicles without a proper licence.

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18. The accusation in charge No.1 is clear and specific and says that the petitioner produced an alleged non-genuine driving licence for driving heavy goods vehicles renewed to drive heavy passenger vehicles also and it can be said that it is not a proper driving licence as the original one was not genuine. Thus instead of mentioning Clause (ii) of Regulation 28 in the first charge, the concerned authority which framed the charges, it appears, by mistake mentioned Clause (xxvii) of Regulation 28 and thus it cannot be said to be a fatal defect as the substance of the accusation is brought to home to the petitioner. It may be noted that what is required in a charge is the details of the accusation, so that the petitioner can understand it and a mere non-mention of an incorrect provision in the relevant Regulation cannot be held to be a fatal defect. This requirement is set met regarding charge No.1.

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19. Similarly, with regard to Clause (xxxi) of Regulation 28, it deals with any other acts not specifically mentioned in the other clauses of Regulation 28, but is detrimental to the interest of RTC. It should be noted that if a person secures employment in RTC by producing a non-genuine driving licence that may create problems for the RTC having regard to the provisions of the Motor Vehicles Act, 1988, and therefore it can be said that such an act on the part of a person can be said to be undoubtedly detrimental to the interests of RTC. Securing a job on a non-genuine driving licence would also amount to cheating the RTC. The wording in Regulation 28(xxxi) is wide enough to cover such a misconduct also as the list of misconducts in Regulation 28 cannot be said to be exhaustive and the clause (xxxi) of Regulation 28 is wide enough to cover any misconduct not specifically mentioned in the other clauses. Therefore, the framing of charge under Regulation 28(xxxi) cannot also be said to be defective and fatal. Accordingly, the third ground raised by Sri Pitchaiah has to be rejected.

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20. The decision of the Hon’ble Supreme Court given in M/s.Glaxo Laboratories (I) Ltd. v. Presiding Officer^[2] relates to a case where the relevant provision in the standing order pertaining to the employer company made certain misconducts punishable when committed within the premises of the company’s factory, but the charges related to a misconduct or misconducts committed outside such premises. Therefore, it was held in that case that the charges were defective and fatal. That is not the case here. In this case, to repeat, the details and substance of the accusation given in the charges were clearly relatable to specified clauses

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relating to misconduct in Regulation 28, but the concerned authority by mistake mentioned a wrong clause for charge No.1. Hence, for the aforesaid reasons, the above decision cannot help the petitioner.

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21. It may however be noted that the order of removal cannot be sustained and it has to be set aside on grounds 1 and 2 raised on behalf of the petitioner. The question now remains as to what is the relief that is to be granted in this writ petition and whether the RTC can be permitted to hold a fresh enquiry, while ordering reinstatement of the petitioner giving him all the benefits as they should follow if the removal order is held to be illegal.

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22. On the above aspect, it would be pertinent to note that RTC is a transport organization established under the Road Transport Corporations Act, 1953, and it is funded and maintained by the State of Andhra Pradesh and it is a public utility having a large fleet of buses. A large number of middle class and poor people who cannot afford car travel use the fleet of buses of RTC.

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23. Thus, having regard to the above importance of RTC, it can be said that people with non-genuine driving licences should not be allowed to secure employment in it in the interests of RTC and the public at large who use its fleet of buses, and even if they secure it, they are liable to be terminated from service. In the present case, as already seen under ground No.1, the removal order suffers from a defect because the RTC failed to secure any witness from the Additional Licencing Authority, Udayapur, who can speak about the non-genuine licence earlier produced by the petitioner and renewed by the RTA, Guntur, adding heavy

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passenger vehicles, which cannot be valid, if the earlier one is a fake one and this occurred due to lapses on the part of the concerned officials who were in-charge of holding disciplinary enquiries and in a way it can be said that the RTC officials concerned were totally negligent or suffered from ignorance in conducting the enquiry against the petitioner. In view of the same, it can also be said that the disciplinary enquiry failed because of lack of evidence. However, even if such evidence is secured from proper source that may weigh in favour of the petitioner also and nothing can be said of it now.

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24. Hence, while setting aside the removal order and directing reinstatement of the petitioner into service as if there is no removal order and giving him all service benefits including salary, allowances, etc., towards back wages, it is made clear that it shall be open for the RTC authorities to hold a fresh domestic enquiry against the petitioner on both the charges and take appropriate action in that behalf. It is true that the matter is of 1996 and yet in the special circumstances of this case which are already referred to supra, the RTC authorities are again given an opportunity to hold a fresh enquiry.

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25. The writ petition is accordingly allowed in the above terms. No costs. As the petitioner is already continuing in service under a scheme of the RTC referred to supra, the RTC can give the same benefit, if it so wishes, even if the fresh domestic enquiry goes against him.

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N. RAVI SHANKAR, J

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3^rd December, 2012

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CVRK/TJMR

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[1] 1998 (2) ALD 509

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[2] (1984) 1 SCC 1

Shaik Hassan Ahmmad S/o Nagpal Meera v. The Depot Manager, Apsrtc

Case brief

What is this about?

What did the court decide?

Shaik Hassan Ahmmad S/o Nagpal Meera v. The Depot Manager, Apsrtc

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