WP/33440/2011 of R.Bhadraiah Vs The Managing Director, on 29 December 2011

ORDER:

This Writ Petition is filed seeking to quash the proceedings,dated 11.06.2010 whereby the petitioner was removed from service aswell as respondent No.2’s proceedings, dated 22.11.2011, in so far asimposing the punishment of deferring two years increments of thepetitioner which shall effect on future increments besides treating theout of service period as not on duty for all purpose and not granting theback wages, attendant benefits for the removal period, as arbitrary andillegal and consequently to direct the respondents to treat the out ofservice period of the petitioner as duty period with wages along with allconsequential benefits.

2. In the affidavit filed in support of the Writ Petition it is stated thatthe petitioner was appointed as Driver in respondent-Corporation on25.01.1992 under displaced employees’ quota. While so, on11.06.2010, respondent No.3 vide its order, dated 11.06.2010,removed the petitioner from service. Being aggrieved by it, he preferred an appeal before the appellate authority, Mahabubnagar,who in turn dismissed the appeal vide order, dated 30.06.2011. Aggrieved by the said orders, he filed W.P.No.21703 of 2011 beforethis Court. This Court by order, dated 11.10.2011 directed respondentNo.3 as well as the Deputy Chief Traffic Manager to appear before thisCourt on 18.10.2011 on the ground that the orders are based onuntenable grounds. Therefore, the two Officers and their StandingCounsel have represented and advised to prefer revision beforerespondent No.2, who will consider the case favourably. Hence, thisCourt directed the petitioner to prefer revision before respondent No.2within seven days from the date of order. Thereafter, the petitionerpreferred revision petition on 24.10.2011 before respondent No.2. Thereupon respondent No.2 passed the impugned order, dated22.11.2011, directing him to report for duty before respondent No.4 andaccordingly, he reported to duty at respondent No.4 depot. Thepetitioner submitted that respondent No.2 had failed to appreciate thatwhen this Court was about to grant the relief of reinstatement withcontinuity of service and other benefits without any punishment asgranted in similar set of facts by this Court in W.P.No.17026 of 2011,the respondent –Corporation advised him to prefer revision. Therefore, the action of respondent No.2 in treating the out of serviceperiod as not on duty, deferring increments for (2) years withcumulative effect and not granting the back wages is illegal. Hence,the Writ Petition.

3. Learned counsel for the petitioner contended that the orderpassed by respondent No.2 which is impugned in this Writ Petition isarbitrary and illegal and unjust; that in judgment of this Court inW.P.No.17026 of 2011, this Court had set aside the impugned orderpassed therein for absence of 9 days by reinstating the petitionertherein forthwith with continuity of service, with imposition ofpunishment of non-entitlement of any other monetary benefits.

4. On the other hand, learned Standing Counsel for therespondents contended that since the petitioner was absent from dutyfor the relevant period without any intimation to the authorities, thepunishment was imposed.

5. The impugned order, dated 22.11.2011 passed by respondentNo.2, which reads as under:

“In this case the action taken by the DepotManager, Shadnagar by removing petitionerfrom service and rejection of appeal by DeputyChief Traffic Manager, Mahabubnagar are alsoproper and justified.

The facts explained by the petitioner in hisreview appeal are not accepted, however alenient view is taken purely on humanitariangrounds as this is first time he was removedfrom service in absenteeism case, hence, I aminclined to give him a chance to serve theCorporation in better way. Also in view ofdirection of Hon’ble High Court of A.P. inW.P.No.21703 of 2011, as informed by the SLO Vide reference 4[th] cited, the removalorders passed by the Depot Manager,Shadnagar are set aside and reinstated thepetitioner into service.

As a measure of punishment his AnnualIncrement deferred for a period of (2) two yearswhich shall have its effect on his futureincrements. The period from the date ofremoval to till he reports for duty is treated asNot On Duty for at purposes. He shall be takenon duty and after performing on duty, he mustbe directed fresh medical examination for A-1category at APSRTC Tarnaka Hospital,Hyderabad. He has to pay fresh securitydeposit as per the circular instructions. Onreinstatement into service, the petitioner isposted to Narayanpet Depot”.

6. Learned counsel for the petitioner submits that the petitioner was absent only for 5 days for a just cause that he was attending her sister.That absenteeism is not actually an absenteeism. The petitionerintimated to the respondent authorities, but the same was not considered, which was stated by the petitioner in his explanation. However, in similar circumstances, this Court taken a view by order,dated 07.07.2011 in W.P.No.17026 of 2011, wherein the operativeportion is as under:

“In view of the fact that the period ofabsence is negligible i.e. misconductproved is only absence of a period of 9days, the impugned order can be set asideby reinstating the petitioner forthwith withcontinuity of service, with imposition ofpunishment of non-entitlement of any othermonetary benefits”.

7. Following the same, this Writ Petition is allowed setting aside theimpugned order, dated 22.11.2011 and consequently with impositionof punishment of deferring two years increment without cumulativeeffect and treating the period not on duty as on duty without anymonetary benefits. There shall be no order as to costs.

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JUSTICE G.CHANDRAIAH

DECEMBER 29, 2011

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WRIT PEITITON No.33440 of 2011

DATED:29.12.2011