the rule ‘issue and start’, = APSRTC -conductor - The checking officials found that the 1st respondent failed to issue tickets to 28 passengers, which lead to initiation of disciplinary proceedings against him, wherein six charges were framed against him. not a misconduct as he was forced by passengers for sake of old patient in the bus , to start immediately =
wherein the Apex Court held that conduct, which is blameworthy for the Government servant in the context of Conduct Rules, would be misconduct. The learned Single Judge also referred to ‘Stroud’s Judicial Dictionary’ wherein misconduct is described as ‘Misconduct means, misconduct arising from ill-motive, acts of negligence, errors of judgment, or innocent mistake do not constitute such misconduct”. =
due to force from passengers that a male passenger is in serious condition, the 1st respondent had to move the bus without issuing tickets, as such, he has not committed any irregularity in moving the bus without issuing tickets to all the passengers. He submitted that in fact, tickets were issued to 43 passengers and the bus was carrying capacity of 88 passengers including 28 ticketless passengers and, out of humanitarian grounds, the 1st respondent had to start the bus.
In his report, the Enquiry Officer clearly accepted the stand of the 1st respondent that he had no ill-intention or bad motive in not issuing tickets. As such, there is no fault on the part of the 1st respondent as per that report.
The learned Single Judge having referred to the Enquiry Officer’s report clearly found that the 1st respondent is not guilty of misconduct and, therefore, he cannot be denied full back wages. We are in agreement with the view taken by the learned Single Judge and we do not find any error in the order of the learned Single Judge.
In view of the above, we feel that there is no infirmity in the order of the learned Single Judge and we confirm the same.
The Writ Appeals are, accordingly, dismissed. There shall be no order as to costs.
As a sequel, miscellaneous petitions filed in the writ appeals shall stand disposed of.
| WA 525 / 2013 | WASR 56355 / 2009 |
|
THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA
AND
THE HON’BLE SRI JUSTICE A. RAJASHEKER REDDY
W.A.Nos.1079 of 2011 & 525 of 2013
COMMON ORDER: (Per ARR,J)
Since these two Writ Appeals arise out of common order, they are heard and being disposed of together.
The 1st respondent is a Conductor and while he was conducting bus bearing No.AAZ 5518 on the route Arutla – Manchal, a check was made at Lingampally X Road
The checking officials found that the
1st respondent failed to issue tickets to 28 passengers, which lead to initiation of disciplinary proceedings against him, wherein six charges were framed against him.
1st respondent failed to issue tickets to 28 passengers, which lead to initiation of disciplinary proceedings against him, wherein six charges were framed against him.
The 1st respondent was removed from service by order dated 13.07.1988 which was questioned by him in W.P.No.17410 of 1989 and the same was allowed by this Court vide order dated 31.01.1990 on the ground that the order of removal was not preceded by holding of an enquiry.
Inspite of the same, the 1st respondent was not taken back into service for nearly 1 ½ years.
The Corporation commenced holding of enquiry by issuing notice dated 25.07.1991 and he was treated as under deemed suspension.
The 1st respondent questioned the same by filing W.P.No.10505 of 1991 and sought for his reinstatement into service, in which this Court issued interim direction to the Corporation to pay subsistence allowance and, by another order, to pay salary to the 1strespondent from 25.07.1991.
Despite the same, he was neither paid salary nor subsistence allowance. Finally, by order dated 16.03.1992, the 1st respondent was removed from service by the appellant.
The 1st respondent raised industrial dispute in I.D.No.40 of 1994, under Section 2-A(2) of the Industrial Disputes Act, 1947 (for short ‘the Act’) before the 2nd respondent, who, by award dated 24.06.1996, directed the appellant to reinstate the 1st respondent into service with continuity of service, 50% of back wages and all other attendant benefits.
Questioning the award of the 2nd respondent, the appellant filed W.P.No.3750 of 1997, while the 1st respondent filed W.P.No.11861 of 1998 to the extent he was denied 50% of back wages.
The learned Single Judge by common order dated 26.11.2008, dismissed the writ petition filed by the appellant and allowed the writ petition filed by the 1st respondent holding that the 1st respondent is entitled to full back wages. Feeling aggrieved thereby, the appellant filed the present writ appeals.
Learned counsel for the appellant contended that the 2nd respondent should not have granted reinstatement of the
1st respondent into service with continuity of service, 50% of back wages and all the attendant benefits, since the charges are grave. He further contended that the 2nd respondent, having held that all the charges against the 1st respondent are proved, ought to have held that the punishment imposed by the disciplinary authorities is just and proportionate. He further contended that the
2nd respondent has no jurisdiction to substitute its own judgment, although it could have arrived at a different conclusion on the same material. He also contended that the 2nd respondent should not have interfered with the findings of the Enquiry Officer and that the learned Single Judge erred in confirming the award of the 2nd respondent and granting full back wages which is erroneous and against the principles laid down.
1st respondent into service with continuity of service, 50% of back wages and all the attendant benefits, since the charges are grave. He further contended that the 2nd respondent, having held that all the charges against the 1st respondent are proved, ought to have held that the punishment imposed by the disciplinary authorities is just and proportionate. He further contended that the
2nd respondent has no jurisdiction to substitute its own judgment, although it could have arrived at a different conclusion on the same material. He also contended that the 2nd respondent should not have interfered with the findings of the Enquiry Officer and that the learned Single Judge erred in confirming the award of the 2nd respondent and granting full back wages which is erroneous and against the principles laid down.
Per contra, learned counsel for the 1st respondent contended that
due to force from passengers that a male passenger is in serious condition, the 1st respondent had to move the bus without issuing tickets, as such, he has not committed any irregularity in moving the bus without issuing tickets to all the passengers. He submitted that in fact, tickets were issued to 43 passengers and the bus was carrying capacity of 88 passengers including 28 ticketless passengers and, out of humanitarian grounds, the 1st respondent had to start the bus.
He submitted that the learned Single Judge, after relying on the findings of the Enquiry Officer, held that there is no mala fide intention on the part of the
1st respondent in violating the rule ‘issue and start’, therefore, the order of the learned Single Judge has to be upheld.
1st respondent in violating the rule ‘issue and start’, therefore, the order of the learned Single Judge has to be upheld.
In this case, it is apt to refer to the findings of the Enquiry Officer under Charge No.2 which reads as under:
“On perusal, the contention of the conductor that he moved the bus on the pretext as there was a serious old aged passenger in the bus due to force of the passengers to take him to Arutla immediately, is some have (sic – what) convincing because the TTI in his statement deposed that when he entered in the bus, the passengers informed him that they demanded the conductor to take the vehicle to Arutla due to a serious passenger in the bus. The TTI submitted that he too observed a serious male passenger in the bus at the time of check.
The further contention of the conductor that he had no mala fide intention taken the vehicle on the force of the passengers as there was a serious passenger. He contended that he issued 43 tickets to the passengers at I.B.Patnam and was in act of issuing tickets to the remaining, is also convincing, since the TTI deposed that the conductor had no mala fide intention on his opinion, as he issued 43 tickets to the passengers including lower and higher denominations and remaining 28 ticket less passengers were to be travelled to different destination of ticket value of Rs.1, 1.50 and Rs.2/-. He stated that the bus was carrying capacity of 88 passengers including these 28 ticket less. He submitted that though the conductor moved the bus on the existence of a serious passenger but his negligence for the violation of the rule is appeared.
By this, it is clear by the statement of the TTI and passengers statement that the conductor had taken the vehicle by the force of the passengers in order to transport a old aged male passenger, who was in serious condition to Arutla as early as possible. The conductor also submitted the same statement in his spot explanation. On observing the SR, the conductor had issued 43 tickets to the passengers who boarded at Ibrahimpatnam. They were all to bound to different destinations. The passengers of charge No.2 were boarded at Ibrahimpatnam and bound for Arutla. The conductor had issued tickets to other passengers who were travelling to Arutla numbering about 16. The TTI statement is clear that the conductor had no mala fide intention but his negligence is clearly existed for the violation of rule. By this, it is further clear that the conductor moved the bus duly violating the rule on the force of the passengers to take a serious passenger immediately to Arutla and was still issuing the tickets, who were not particularly one destination but were different destinations and also boarded different places such as Ibrahimpatnam and Nomula. Whatever may be the reason, it is the fundamental duty to follow the rule issue and start, then only allow the bus to move. Thus, though the conductor had no mala fide intention to defraud the revenues of Corporation but his negligence for violation of the rule is clearly existed. As such the conductor failed to collect the fare and issue tickets to 2 passengers, who were found travelling without tickets from Ibrahimpatnam to Arutla ex.stages 9 to 13.” (emphasis added)”
Which clearly shows that the 1st respondent had taken the vehicle by the force of the passengers in order to transport old aged male passenger who was in serious condition and thereby he violated the rule ‘issue and start’, though he had no mala fide intention to defraud the revenues of the Corporation, but his negligence for violation of the rule clearly existed.
The learned Single Judge considered the above aspect and relied on the judgment of the Supreme Court in Union of India V. J. Ahmed ((1979) 2 SCC 286)
wherein the Apex Court held that conduct, which is blameworthy for the Government servant in the context of Conduct Rules, would be misconduct. The learned Single Judge also referred to ‘Stroud’s Judicial Dictionary’ wherein misconduct is described as ‘Misconduct means, misconduct arising from ill-motive, acts of negligence, errors of judgment, or innocent mistake do not constitute such misconduct”.
The learned Single Judge also placed reliance on the judgment of the Apex Court in
State of Punjab V. Ram Singh, Ex-Constable ((1992) 4 SCC 54) wherein the Apex Court, while dealing with what constitutes misconduct, held as under:
“The word ‘misconduct’ though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve.”
As such, the learned Single Judge has elaborately dealt with the matter.
The admitted facts in this case also demonstrates that the circumstances had forced the 1st respondent to violate the rule of the Corporation ‘issue and start’. The charges have not imputed any ill-motive to the 1st respondent in such violation.
In his report, the Enquiry Officer clearly accepted the stand of the 1st respondent that he had no ill-intention or bad motive in not issuing tickets. As such, there is no fault on the part of the 1st respondent as per that report. The learned Single Judge also relied on the judgments of theApex Court
The learned Single Judge having referred to the Enquiry Officer’s report clearly found that the 1st respondent is not guilty of misconduct and, therefore, he cannot be denied full back wages. We are in agreement with the view taken by the learned Single Judge and we do not find any error in the order of the learned Single Judge.
In view of the above, we feel that there is no infirmity in the order of the learned Single Judge and we confirm the same.
The Writ Appeals are, accordingly, dismissed. There shall be no order as to costs.
As a sequel, miscellaneous petitions filed in the writ appeals shall stand disposed of.
_______________________
ASHUTOSH MOHUNTA, J.
_________________________
A. RAJASHEKER REDDY, J.
11th June, 2013
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THE HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA
AND
THE HON’BLE SRI JUSTICE A. RAJASHEKER REDDY
W.A.Nos.1079 of 2011 & 525 of 2013
11th June, 2013
cbs
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