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Judgment
This writ petition has been filed under Article 226 of the Constitution of India seeking a writ of certiorari and to quash the impugned proceedings dated 09.08.2006 in deferring two annual increments permanently besides treating the suspension period as not on duty for the purpose of wages, increments and leaves, as confirmed by the 2nd respondent in his proceedings dated 27.10.2009 as illegal, unjust, arbitrary and in violation of Articles 14, 16 and 21 of the Constitution of India and consequently to direct the respondents to treat the suspension period for all purposes duly restoring deferred increments along with its consequential benefits.
Brief facts leading to the filing of this writ petition are that the petitioner joined the services of the respondent Corporation as a driver in the month of September, 1990 after due process of selection. His services were regularised with effect from 01.01.1992. While the petitioner was working under the control of the 3rd respondent depot, he was suspended from service on 13.03.2006 and was issued charge-sheet dated 13.03.2006 alleging that while driving the vehicle bearing AP 10Z 4647 on 16.01.2006 from Kalwakurthy to Hyderabad, it met with an accident with bus bearing No.A.P. 11Z 5604 of Achampet depot came in opposite direction due to which the other driver i.e. K.R. Reddy, driver of Kalwakurthy, depot, received multiple injuries and later succumbed to injuries, which constitutes misconduct under Regulations 28(ix-b) of APSRTC Employees (Conduct) Regulations, 1963 and further that heavy damages were caused to the bus bearing No.AP 10Z 4647 due to the said accident, due to which the vehicle had to be sent for complete overhaul, which constitutes misconduct under Regulation 28(xiii) of APSRTC Employees (Conduct) Regulations, 1963.
The petitioner submitted his explanation dated 20.03.2006 explaining that while he was driving the vehicle bearing No.AP10Z 4647 on 16.01.2006 from Kalwakurthy to Hyderabad, the bus bearing No.AP 11Z 5604 of Achampet Depot came in opposite direction and in order to avoid hitting the scooter in front of the other bus the driver of the other bus tilted and hit the petitioner’s bus resulting in the driver of the other bus Mr. K.R.Reddy sustaining the grievous injuries while the petitioner fell unconscious. It was explained that the petitioner was not at fault and that other side vehicle driver has contributed to the accident. However, the 3rd respondent was not satisfied with the said explanation and he ordered an enquiry into the said charges.
During the course of enquiry, Sri Basheer Ahmad (Preliminary Enquiry Officer), Rajanna (Service Conductor), Thanush Reddy, (Passenger) and another passenger were examined.
The Preliminary Enquiry Officer had deposed that by the time he went to the accident spot for inspection, vehicles were not there, and therefore he went to the Police Station and collected the material from the Police station and found that the vehicle got damaged and stated that both the drivers were responsible. The eye witnesses Mr. K.Thanush Reddy and Sudharshan Reddy have deposed that the bus coming in the opposite direction which belonged to the Achampet depot, while over taking the scooter, it was coming in down gradation in high speed and dashed the petitioner’s bus at the front right side corner, due to which, the petitioner as well as co-driver sustained grievous injuries. The service Conductor Mr. Rajanna also stated that the bus belonging to Achampet depot dashed their bus and after dashing their bus, the said bus went about 50 feet with some speed and thereafter it was stopped.
In view of the above deposition, according to the petitioner the accident was not due to any fault attributable to him but it had occurred due to the fault of the driver of the other bus belonging to Achampet depot and therefore, the charges against him are not proved and have to be dropped accordingly. However, the Enquiry Officer came to the conclusion that the petitioner was at fault and held that the charges are proved. Against the said enquiry report, the petitioner has submitted his objections but the 3rd respondent was not satisfied with the explanation of the petitioner and issued a show-cause notice dated 08.08.2006 proposing to defer two annual increments with cumulative effect besides treating the suspension period as not on duty for all purposes like wages, increments and leaves. The petitioner submitted his explanation on 09.08.2006 requesting that the punishment proposed is against the principles of natural justice because the charges levelled against him are not proved. However, the 3rd respondent passed the punishment order as proposed in the show-cause notice against which the petitioner preferred an appeal before the 2nd respondent, which was also rejected on 27.10.2009.
Against the order of rejecting the appeal and confirming the punishment order, the petitioner has filed this writ petition stating that for no fault of his, he has suffered the suspension for a period of more than five months with half pay and because of the punishment order treating the suspension period as not on duty for all purposes, he was loosing wages for that period and also loosing that period for seniority, increments, leaves etc., and therefore, deferment of two annual increments with cumulative effect is double punishment resulting in huge loss of emoluments as well as future service promotional avenues.
The learned counsel for the petitioner reiterated the submissions of this petition and prayed for setting aside of the punishment order and or to reduce the punishment. According to him, the punishment is disproportionate to the charges levelled against him. He placed reliance upon the decision of this Court in case of K. Prasad Vs. Managing Director, APSRTC, Musheerabad, Hyderabad and others 1999 (3) ALD 645 and also the decision of the Hon’ble Supreme Court in the case of Kulwant Singh Gill Vs. State of Punjab 1991 Supp (1) Supreme Court Cases 504.
On the other hand, the learned Standing Counsel appearing for the respondents Corporation supported the orders of the authorities and submitted that the petitioner was negligent while driving the vehicle due to which the accident has occurred and therefore, the punishment awarded to the petitioner was proportionate and needs no interference.
Having regard to the rival contentions and the material on record, it is seen that the fatal accident had occurred while the petitioner was driving the APSRTC bus. The Preliminary Enquiry Officer had reported that there was negligence on the part of both the drivers. The petitioner though relies upon the statements given by the passengers as well as the Conductor of the bus, it cannot be ruled out that there was an accident due to which the co-driver had received grievous injuries and had ultimately passed away and the respondents Corporation has also incurred huge expenditure in getting the buses repaired. Therefore, the charge of contributory negligence is proved against the petitioner.
In the case of Kulwant Singh Gill (2nd supra) the Hon’ble Supreme Court held that the withholding of the increments with cumulative effect is a major punishment.
In the case of K. Prasad (one supra) was dealing with an issue whether there was inordinate delay on the part of the petitioner in approaching the appellate authority and in such circumstances the Court held that the petitioner is not entitled to relief where the appellate authority has not dismissed the appeal on the ground of delay in preferring the appeal but on merit then the delay question cannot be reopened once the appellate authority chooses to decide the lis before it on merit. Both the decisions are not applicable to the facts of the case before this Court.
Having decided that there was contributory negligence on the part of the petitioner as well, the next question to be decided is about the quantum of punishment awarded, whether it was proportionate to the charges levelled against the petitioner. As pointed out by the learned counsel for the petitioner, the petitioner was suspended from service for a period of five months, which was treated as not on duty for all purposes and this punishment has huge financial implications. The further punishment of deferment of two annual increments with cumulative effect is also a major penalty.
In view thereof, this Court is of the opinion that the punishment awarded to the petitioner is excessive. In such circumstances, the usual practice would be to remand the issue to the file of the disciplinary authority to reconsider the proportionality of the punishment to be awarded but this writ petition was filed in 2011 and more than ten years have lapsed. Therefore, remitting the matter back to the file of the disciplinary authority for reconsideration of the punishment would not be advisable. Therefore, this Court deems it fit and proper to restrict the punishment to stoppage of two annual increments with cumulative effect. The respondents are directed to treat the suspension period as on duty for the purpose of retirement
benefits only.
In the result, this writ petition is partly allowed. No order as to costs.
Miscellaneous applications, if any pending, shall stand closed.