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Saturday, May 2, 2015

no driver should either at the time of reporting for duty or while performing actually the duties can be found ever to be under the influence of an alcoholic beverage. The reason is not far to seek. An alcoholic beverage is likely to impair, to a certain extent, the reflexes of an individual. A motor vehicle driver is likely to encounter many a situation where reflexes are needed to be employed with utmost speed and dexterity. Any impairment of reflex senses is likely to delay their deployment, which can make a huge difference either in causing or even avoiding an accident on roads. I am therefore, of the opinion that the Corporation is fully justified in treating the conduct of its employees on duty who are under the influence of alcohol, however small quantity of its presence in the blood is, as a serious misconduct.

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

WRIT PETITION No.4635 of 2015  

06-03-2015

Sri S.V.Hari Prasad.Petitioner

The Vice Chairman & Managing Director Andhra Pradesh State Road Transport  
Corporation  Musheerabad, Hyderabad and others..... Respondents

Counsel for the Petitioner: M/s.Mary Legal Consultancy

Counsel for Respondents: Sri A.Rama Rao, Standing Counsel  
                                     for A.P.S.R.T.C.
               
<Gist :


>Head Note:

? Cases referred:

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

WRIT PETITION No.4635 of 2015  

O R D E R:

      The petitioner herein, who was employed as a Driver with
the Andhra Pradesh State Road Transport Corporation
(henceforth referred to as the Corporation), challenges the
Suspension Order No.01/498 (9) 2014-MPL-1, dated 16.12.2014
of the 3rd respondent, Depot Manager, Madanapalli Depot-I,
Chittoor District.
      The learned counsel for the petitioner would submit on
06.12.2014, when the petitioner reported to duty at Madanapalle
Depot  I to perform duties, the security personnel on duty
checked the petitioner in the presence of the Duty Controller and
the breath alcohol analyzer has reported presence of 07
milligrams of alcohol in 100 milligrams of blood and hence, he
was not allowed to perform the duty as it was suspected that he
was under the influence of an alcoholic beverage.  The learned
counsel for the petitioner would submit that the breath analyzer
will react positively even if a person consumes Gutka and
Cigarette.  The petitioner therefore, attacks the findings of the
breath analyzing test for the negligible quantity of the alcohol
present in the blood.  This apart, the learned counsel for the
petitioner would also point out that the Corporation itself has
issued a Circular on 22-09-2012 bringing out that the level of
alcohol contained in the blood can be detected instantaneously
besides obtaining the report in the form of a print out on the spot
by subjecting the employees of the Corporation to the breath
analyzing test using the latest gadgets.  The Circular discloses
that if 30 milligrams of alcohol is found in 100 milligrams of
blood, then an inference can be drawn that such a person is
under the influence of an alcoholic beverage.  Since the finding in
the instant case is only 07 milligrams of alcoholic presence,
according to the learned counsel for the petitioner, the petitioner
cannot be suspected to be under the influence of an alcoholic
beverage and hence, he cannot be proceeded any further.  The
learned counsel for the petitioner would also submit that even
Section 185 of the Motor Vehicles Act, 1988 would only recognize
a person, who has presence of 30 milligrams of alcohol in 100
milligrams of blood, to be under the influence of alcohol.
Therefore, according to the learned counsel for the petitioner, the
petitioner cannot be suspected to be under the influence of an
alcoholic beverage and subjected to any disciplinary proceedings
on that score.
      Per contra, the learned Standing Counsel for the
Corporation Sri A. Rama Rao would place reliance upon the
Andhra Pradesh State Road Transport Corporation Employees
(Classification, Control and Appeal) Regulations, 1967. In
Regulation 9, it is clearly spelt out that being under the influence
of drink while on duty is a serious misconduct.  Though the
Regulation has not been happily framed, in that it has used a
vague expression of drink instead of using precise expression of
alcoholic beverage or intoxicant but nonetheless, all employees
have understood the scope, content and meaning of this
statement contained in the note appended to Regulation-9 of the
Regulations, as influence of alcoholic beverage only.  Sri Rama
Rao would contend that it is one thing to say that the petitioner
has not exceeded the tolerable limits of influence of an alcoholic
beverage and it is altogether different for him to say that he is not
under the influence of alcohol at all.  Sri Rama Rao would also
place heavy reliance upon an unreported Judgment rendered in
W.P.No.3627 of 2015 by my learned Brother Justice Vilas V.
Afzulpurkar on 19-02-2015.
      My learned Brother Justice Vilas V. Afzulpurkar has noted
in para 5 of his Judgment as under:
5. It is well settled that suspension pending
enquiry can be interfered with by this Court
only in the event of an order being passed by an
authority incompetent to pass such order or in
the event of the order being accentuated by
malafides. Both the said events are absent in
the present case. Moreover, suspension was
found warranted by the Depot Manager, since
the petitioner was about to take up service, as
aforesaid and the passengers in the bus could
not be exposed to the risk of driving by the
petitioner. Even if it is accepted that the alcohol
content, as per report, is within the permissible
limit, the order of suspension pending enquiry
does not deserve to be interfered with in the
interest of the passengers in the bus. If the
contention of the learned counsel for the
petitioner is tested, it would lead to a situation
where a driver, who shows a reading of
29.999mg/100ml would also justifiably claim
that it is not a misconduct and that he is
entitled to work as a driver and thereby, not
only the passengers in the bus are put to risk
but the general public using the road is also
exposed to the risk. The consumption of alcohol
and the affect of intoxication cannot be said to
be uniform and as such, merely because the
alcohol content in the blood of the petitioner
having found within the permissible limit,
cannot, in my view, entitle the petitioner to
contend that he is still entitled to drive the bus
and discharge his normal functions as a driver
without being subjected to any disciplinary
action including suspension. Keeping in view
this aspect, therefore, the discretion under
Article 226 of the Constitution of India does
deserved to be invoked in the present case.
Since the order of this Court relied upon by the
petitioner is only an interim order, the same is,
obviously, not binding on a coordinate bench
and as such, I am not inclined to entertain the
writ petition for the reasons mentioned above.
The respondents, however, shall consider the
explanation of the petitioner and taken
appropriate, further, steps for expeditious
completion of the enquiry. The observations, on
merits, if any, made hereinabove are only for
the purpose of decision in the present writ
petition and shall not affect the disciplinary
authority in considering the disciplinary case.

      I am in complete agreement with the reasoning assigned by
my learned Brother. It is one thing to say that a motor vehicle
driver had exceeded the tolerance limits of alcohol while driving a
motor vehicle and it is altogether a different thing to say that one
has not breached the prescribed code of conduct.
      The Corporation is a public-sector undertaking catering to
the demand of the public for providing transportation facilities at
an affordable cost.  Therefore, the Corporation is entitled to
ensure that all its employees bear appropriate and decent
conduct.  It is also expected to prescribe as to what type or kind of
conduct the employees of the Corporation must bear. Hence, the
Corporation has classified certain types of conduct as
misconduct.  When once the Corporation has recognized the
influence of alcohol while on duty as a serious misconduct, in my
opinion, the quantum of presence of alcohol in the blood of the
employee of the Corporation is not so much relevant and it pales
completely into insignificance.  The Corporation apart from being
obliged to preserve and protect its assets and manage prudently
its resources, including its precious financial resources, it also
owes a larger social responsibility to the other road users.  The
primary duty and obligation of the Corporation is to ensure safety
of the passengers/commuters, who prefer to travel by the buses
deployed by it.  Simultaneously, the Corporation also has to
ensure that the other road users are not exposed to any perilous
consequences.  Any error of judgment on the part of a driver of
the Corporation while performing his duties as such, would not
only cause a dent to the precious financial recourses of the
Corporation by way of payment of compensation to the victims,
but would also cause a dent to its reputation.  Therefore, looked
at it from this perceptive, the Corporation viewing its employees in
particular to be under the influence of an alcoholic beverage as a
serious misconduct, cannot be taken exception to, however little
the percentage of the alcohol is available in the blood of the
employee concerned.
        I am therefore, of the opinion that no driver should either
at the time of reporting for duty or while performing actually the
duties can be found ever to be under the influence of an alcoholic
beverage.  The reason is not far to seek.  An alcoholic beverage is
likely to impair, to a certain extent, the reflexes of an individual.
A motor vehicle driver is likely to encounter many a situation
where reflexes are needed to be employed with utmost speed and 
dexterity.  Any impairment of reflex senses is likely to delay their
deployment, which can make a huge difference either in causing
or even avoiding an accident on roads.  I am therefore, of the
opinion that the Corporation is fully justified in treating the
conduct of its employees on duty who are under the influence of
alcohol, however small quantity of its presence in the blood is, as
a serious misconduct.
      The learned counsel for the petitioner has placed reliance
upon the Circular issued by the Vice-Chairman & Managing
Director of the Corporation on 22-09-2012, which was issued
subsequent to framing of the Regulations.  It is for the Vice-
Chairman & Managing Director of the Corporation to reconcile at
the earliest this discrepancy.  For this purpose, I direct the
Registry to communicate a copy of this order to the Vice-
Chairman & Managing Director, Andhra Pradesh State Road  
Transport Corporation, so as to provide an opportunity for
reconciling the contradictions noticed supra.
      I hope and trust that the inquiry initiated against the
petitioner shall be completed as expeditiously as possible
preferably within a maximum period of one month from the date
of receipt of a copy of this order provided the petitioner extends
the necessary cooperation through out.
      With this, the writ petition stands disposed of at the
admission stage, but however, without costs.
      Consequently, the miscellaneous petitions, if any, stand
disposed of.

_______________________________________      
JUSTICE NOOTY RAMAMOHANA RAO          
06.03.2015

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