THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITION NO. 3100 OF 2015
03-03-2015
M.D.Saida..... PETITIONER
1.The Andhra Pradesh Road Transport Corporation, Hyderabad and
others....RESPONDENTS
Counsel for Petitioner: Sri G. Sudheer
Counsel for Respondent No.1 : SC to APRTC
<GIST:
>HEAD NOTE:
? Cases referred:
THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO
W.P.No.3100 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 action of the Depot Manager,
Tirupati Region, Chittoor District, the 3rd respondent herein, in
initiating the disciplinary proceedings against him on 19-01-2015.
The learned counsel for the petitioner Sri G. Sudheer would
submit that the petitioner reported to duty on 09-01-2015 and
accordingly, brought the bus bearing Registration No. AP-29-Z-0394 from
the garage up to the main gate of the Depot. Then, at about 5-34 am.,
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 petitioner was, in fact,
not maintaining good health and he has used Cortex cough syrup for
getting over the irritable cough with which he was suffering. The
petitioner therefore, attributes the findings of the breath analyzing test
towards the negligible quantity of the alcohol present in the blood, to
the consumption of the cough syrup. 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, 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 the 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 how the employees of the Corporation must bear
appropriate conduct. 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 pales completely into insignificance. The
Corporation apart from being obliged to preserve and protect its assets
and manage 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 much 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
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.
_________________________
NOOTY RAMAMOHANA RAO, J.
03.03.2015
WRIT PETITION NO. 3100 OF 2015
03-03-2015
M.D.Saida..... PETITIONER
1.The Andhra Pradesh Road Transport Corporation, Hyderabad and
others....RESPONDENTS
Counsel for Petitioner: Sri G. Sudheer
Counsel for Respondent No.1 : SC to APRTC
<GIST:
>HEAD NOTE:
? Cases referred:
THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO
W.P.No.3100 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 action of the Depot Manager,
Tirupati Region, Chittoor District, the 3rd respondent herein, in
initiating the disciplinary proceedings against him on 19-01-2015.
The learned counsel for the petitioner Sri G. Sudheer would
submit that the petitioner reported to duty on 09-01-2015 and
accordingly, brought the bus bearing Registration No. AP-29-Z-0394 from
the garage up to the main gate of the Depot. Then, at about 5-34 am.,
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 petitioner was, in fact,
not maintaining good health and he has used Cortex cough syrup for
getting over the irritable cough with which he was suffering. The
petitioner therefore, attributes the findings of the breath analyzing test
towards the negligible quantity of the alcohol present in the blood, to
the consumption of the cough syrup. 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, 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 the 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 how the employees of the Corporation must bear
appropriate conduct. 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 pales completely into insignificance. The
Corporation apart from being obliged to preserve and protect its assets
and manage 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 much 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
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.
_________________________
NOOTY RAMAMOHANA RAO, J.
03.03.2015
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.