Dismissed

Md. Chand Pasha, v. Apsrtc, Rep. by its Managing Director

Telangana HC2 Apr 2013WP/9662/2013

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging the termination of an A.P.S.R.T.C conductor. It held that a casual reference to subsequent unauthorized absence, not relied upon as a substantive charge, did not vitiate the order under natural justice or Regulations.

What did the court decide?

Writ petition dismissed; Miscellaneous Petitions stood dismissed; No costs awarded.

Md. Chand Pasha, Vs Apsrtc, Rep. by its… — Labour and Industrial Disputes | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.9662 OF 2013

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ORDER:

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Heard Sri V.Narasimha Goud, learned counsel for the petitioner, and Sri H.Venugopal, learned Standing Counsel for the respondents, who accepted the notice on their behalf.

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The writ petitioner was a conductor employed with the A.P.S.R.T.C (for short “the Corporation”), and he was currently attached to Kalwakurthy Depot. The Depot Manager, Kalwakurthy passed the impugned orders on 27.02.2013 imposing on him the punishment of removal from service of the Corporation with immediate effect. The writ petitioner was proceeded against as a matter of discipline for the unauthorized absence from duties from 10.11.2012 to 20.11.2012. A domestic enquiry followed and the Deputy Superintendent (Traffic) who has conducted enquiry submitted his report in the matter on 26.01.2013. A copy of the Enquiry Officer’s report was also dispatched to the petitioner, which he received on 28.01.2013. A show cause notice of removal was also issued to the petitioner on 28.01.2013. The petitioner has not chosen to show any cause as to why he should not be removed. But, however, in the meantime there was another report submitted by the Traffic Inspector of the Depot that the writ petitioner was absent for duties continuously and unauthorisedly from 04.02.2013 onwards. This fact was also mentioned in the impugned order.

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According to the learned counsel for the petitioner, the impugned order is passed in gross violation of the procedure prescribed under the A.P.S.R.T.C Employees (Classification, Control and Appeal) Regulations, as well as the principles of natural justice.

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The absence of the petitioner from duty from 04.02.2013 onwards continuously upto 26.02.2013 is never forming part of the Charge Sheet drawn against the petitioner on 20.11.2012. Therefore, a misconduct alleged against the petitioner subsequent to framing of charge on 20.11.2012, has been taken into consideration by the Depot Manager. Since, no enquiry was ordered or conducted with reference to the subsequent misconduct alleged against the petitioner, the impugned order amounts to violating the procedure prescribed under the A.P.S.R.T.C Employees (Classification, Control and Appeal) Regulations. Since, no opportunity whatsoever has been given to the petitioner with reference to the alleged misconduct of his absenteeism from 04.02.2013 onwards, the impugned order amounts to condemning the petitioner behind his back.

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Sri H.Venugopal would contend that the medical leave attributed to the petitioner for his unauthorized absence from 10.11.2012 to 20.11.2012 is already held established. The petitioner has not chosen to show any cause even after receiving the show cause notice. Therefore, the Depot Manager has penalized the petitioner only for the proven misconduct by imposing the punishment of termination from service of the Corporation. What has been mentioned in the impugned order with reference to the subsequent period of absence is only a casual reference to the continuous misconduct executed by the petitioner.

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The disciplinary proceedings which were initiated against the petitioner on 20.11.2012, have not come to an end. A detailed enquiry was conducted by appointing the Deputy Superintendent (Traffic) as an Enquiry Officer. He submitted his report on 26.01.2013, a copy of that report was made available to the petitioner. The petitioner has not raised any objections insofar as the said report is concerned. There was also a show cause notice issued by the Depot Manager on 28.01.2013 proposing to impose on him the punishment of removal from service. The petitioner has received the show cause notice, but

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has not bothered to show the cause. It is therefore reasonable to infer that the writ petitioner has no reasonable cause to show against the proposed action of the Depot Manager. Unfortunately, and in spite of repeatedly setting out in various judgments by this Court, the subsequent casual absence from duty is invariably referred to while passing orders of termination by the Depot Managers. Possibly the Depot Managers are only referring to the extreme inconvenience with these kind of employees who are making Corporation face and in support of such feelings, they make the passing or casual reference to the subsequent periods of unauthorized absence.

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If a conductor and a driver employed by the Public Sector Transport Undertaking failed to show up to duty promptly at the appointed hour, it becomes so difficult to organize a substitute for running the services of the undertaking. Spare drivers and conductors would not be available at the bus depots awaiting for a call to assume duty. Transport undertakings are manpower intensive industries. A conductor or a driver, if he suddenly stops reporting to a duty and does not even bother to intimate the Manager of the reason for his absence or the length of proposed absence by him, the job of the Manager of the Corporation becomes so difficult. He cannot organize all the services to be run by the Corporation for the day nor can he plan for the next round of duties either. A Manager when once books a driver or a conductor for a duty in anticipation that people like the writ petitioner would not show up, if they were to show up suddenly, he cannot deal with both of them. One of them will have to be assigned duties while one will have to be rested. A driver or a conductor who has responded to the call of the Manager and showed up cannot be asked to go home. If he were to be assigned the duties, the reckless employees like the petitioner will have to be taken to duty and rested at the cost of the Corporation. He will count the day as one duty day and stakes the claim for payment of money for the day without rendering any service. This kind of a situation would lead to un-productivity in

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the organization.

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Manpower charts are drawn by the Managers well in advance, so that the operations of the Corporation can run very smoothly and as planned. Therefore, absence from duty and the length of possible absenteeism has got to be intimated to the Manager in advance or at least in the minimum proximate closeness of the commencement of the tenure of absence from duty. If a bus service is to be cancelled abruptly for want of a driver or a conductor, it is the commuting public, for whose benefit the transport operations are undertaken, will be the worst hit. If a bus which has to ply on a particular route at a particular time is abruptly cancelled, the Corporation will suffer an adverse image and impact in the eyes of the general public. This apart, providing for relatively cheap public transportation facilities the A.P.S.R.T.C has been running its operations for school and college going children, employees, hospital goers and those who go to their work places, all depend upon such transport facilities. Sometimes the abrupt cancellation of a service would result in serious consequence flowing there from. All these adverse effects will be felt by the Corporation all due to the direct result of the unauthorized absenteeism resorted to by the drivers and the conductors.

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The learned counsel for the petitioner has placed reliance on the judgment rendered by the Division Bench in support of his contention that any reference to the subsequent misconduct while passing the order of termination from services vitiates the said order. I have carefully gone through the judgment of the Division Bench. That is a case where the Depot Manager has substantially relied upon the subsequent misconduct committed by the employee concerned therein for purposes of penalysing the employee therein, whereas in the impugned order, I have only found that the Depot Manager has made a very casual reference to the subsequent period of absence. Therefore, the ratio laid down by the Division Bench in the earlier case is not attracted to the fact situation prevailing in the instant case.

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I am therefore, of the view that the casual reference made to the subsequent absence from 04.02.2013 is only an indictor that the writ petitioner has not bothered himself to correct his attitude in the matter. A disciplinary proceeding which has not yet ended and for which he has received a show cause notice as lately as on 28.01.2013, has also not produced any desired result on the petitioner, as is evident from his unauthorized absence from 04.02.2013 onwards. Therefore, I am of the opinion that the reference made to the subsequent absence of the writ petitioner is only a casual reference but not a substantial one, which has clinched the issue. It is only in support of the conclusion drawn by the Depot Manager that having on the rolls of the Depot, a person, who is not serious about his job and to demonstrate the adverse effect it had on the organization the casual absence was referred to. The subsequent absence has been indicated for the purpose of evaluating the appropriate punishment that should be visited for the proven misconduct. Regulation 8 of the A.P.S.R.T.C Employees (Classification, Control and Appeal) Regulations, lists out various punishments that can be imposed upon an employee for good and sufficient reasons. They start with censure and end up with dismissal from services. Therefore, a Disciplinary Authority has to necessary apply his mind as to the appropriate punishment that should be imposed for the proven misconduct. In the process of making up ones mind with regard to the quantum of punishment that should visit the employee concerned, a casual reference to the subsequent conduct is made. Further, there was no objection raised by the petitioner against the Enquiry Report holding him guilty and the petitioner has not objected to the proposed punishment of removal from service, hence I do not find any infirmity in the order passed by the Depot Manager in imposing the punishment of termination from the services.

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Therefore, this Writ Petition is dismissed at the admission

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stage. No costs.

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The Miscellaneous Petitions, if any, pending in this Writ Petition

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shall stand dismissed.

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NOOTY RAMAMOHANA RAO, J

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02^nd April, 2013