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Judgment
Petitioner questions the proceedings of the respondent – Corporation dated 22.10.2009 which imposed deferment of annual increment for a period of two years with cumulative effect besides treating the suspension period as ‘not on duty’ as illegal. A consequent direction is sought to set aside the said proceedings.
Petitioner was appointed as a Security Guard in the corporation on 05.02.1999. While so, petitioner went to his native place on 06.04.2009 to see his grandmother, however, reported to duty on 07.04.2009 at 17.45 hours instead of 16.00 hours and he informed Mr. Shankerappa, Washing Contractor over phone of his late-coming. Petitioner explained the Security Head Guard reasons for his late, but the latter did not permit him to perform duties. Petitioner stayed in the office as his duties were in two spells i.e. 16-00 to 00.00 and odd hours to 08.00 hours. Moreover, the Security Head Guard complained assault against petitioner, based on which, a preliminary enquiry was conducted and a report dated 18.04.2009 was submitted to the 2nd respondent, who issued a charge sheet with the following charges:
for having absented to your duties on 07-04-2009 to the shift from 16.00 to 00.00 hours without any intimation or prior sanction of leave from your Supervisors which constitutes misconduct under Reg.28(xxvii) of APSRTC Employees Conduct Regulations, 1963.
for having signed in the duty allocation register on 08-04-2009 as having attended to your duty to the shift from 00.00 to 08.00 hours without prior permission and rounded off the signature of Sri.K.Mazaruddin, SHG who was performing the duty in the shift from 00.00 to 08.00 hours which constitutes misconduct under Reg.28(xviii), (xix)(xxi) & (xxxii) of APSRTC Employees Conduct Regulations, 1963.
for having assaulted Sri.K.Mazaruddin, SHG at about 00.15 hours who was on duty on 08-04-2009 in the shift from 00.00 to 08.00 hours and abused him in filthy language asMAKE LOUDE NA VENTA PADATAVENDIRA" which constitutes misconduct under Reg.28(xi), (xviii) & (xxi) of APSRTC Employees Conduct Regulations, 1963.
for having left the Security branch on 08-04-2009 at 01.30 hours without any intimation though you have signed in the Duty allocation register which constitutes misconduct under Reg. 28 (xviii), (xix), (xxi) & (xxxii) of APSRTC Employees Conduct Regulations, 1963.
Petitioner is stated to have submitted a detailed explanation. Dissatisfied with the same, enquiry was conducted which resulted in imposing the impugned punishment vide proceedings dated 22.10.2009. Appeal field thereagainst was rejected on 05.06.2010.
Learned counsel for petitioner Sri G. Ravi Mohan submits that the Corporation failed to see that there is no evidence on record to prove the charges alleged. As per the report of the preliminary enquiry officer, petitioner is having clean record and appreciation letters from his superiors but the same were not considered by the respondent. According to the learned counsel, the evidence of Mr.Attar Singh who performed his duties on the fateful day from 19.00 hours to 3.30 hours at the depot garage, is clear that petitioner was asking the Security Head Guard to permit him to perform his duties at 23.50 hours and he further stated that petitioner is ready to perform his duties at odd hours but he was not permitted to do so. The respondent failed to appreciate that the findings of the preliminary report were given by the Security Head Guard himself.
In the counter-affidavit filed on behalf of the Corporation, it is stated that there is no record of ill-health of petitioner’s grandmother and his visit to native place on 06.04.2009. The said fact was revealed at the time of domestic enquiry and not during preliminary enquiry and also in the explanation submitted to the charge sheet. Therefore it is only an after-thought. It is denied that petitioner informed his late reporting to SHG Sri. Mazaruddin through Mr. Shankarappa, Washing Contractor over phone. Petitioner reported at 17.45 hrs and immediately left the security branch without any intimation, hence his explaining reasons for late reporting to the SHG who was performing the duty in the shift from 16.00 hrs to 00.00 hrs is not correct. Petitioner also failed to inform whether he could report to duty to the next shift i.e. 00.00 hrs to 08.00 hrs to the on-duty SHG. It is stated that as he did not turn up to his next duty, Sri. Mazaruddin, SHG continued in the shift from 00.00 hrs to 08.00 hrs duly furnishing in the duty register as petitioner not reported. At about 00.03 hours, SHG went inside the garage and returned to the security branch at 00.15 hours, at that time, SHG observed that petitioner was available in the chair in the security branch and the signature of SHG was rounded off and petitioner signed in the duty register without prior permission of SHG as having reported to duty in the shift from 00.00 hrs to 08.00 hours. When the SHG asked petitioner about signing, petitioner abused the SHG in filthy language and assaulted him on his neck. Then the SHG telephoned to DM:NKD and lodged a complaint to V&SO: HZ who nominated the Security Inspector, RR Region as an Enquiry Officer to conduct preliminary enquiry and preliminary enquiry was conducted. After perusing the preliminary enquiry report and the petitioner was placed under suspension duly issuing charge sheet on 28.04.2009. It is stated that after conducting domestic enquiry, comments / objections / remarks of petitioner were called for through the office letter dated 19.08.2009 to which petitioner replied that he has no comments / objections / remarks to offer. Thus, the contention of the petitioner that the enquiry officer has conducted enquiry without following the principles of natural justice is not correct. In the domestic enquiry the charges leveled against the petitioner were held proved and petitioner himself admitted the charge by not offering comments/ objections/remarks on enquiry report, a show cause notice was issued to the petitioner and his explanation was called for. The explanation of petitioner was not convincing, therefore, the impugned punishment was imposed. Petitioner rounded-off the signature of his supervisor and signed himself in the duty register as having reported to the duty clearly speaks of arrogant / rude behavior of petitioner, thus the contention of petitioner that there is no evidence on record to show that petitioner assaulted SHG and abused in filthy language is not correct.
Learned Standing Counsel for Corporation Sri A. Srinivas Reddy submits that petitioner is trying to take the advantage of statement of Sri Attar Singh. When the incident of using filthy language occurred between two people, the circumstances took place at the time of incident will only give evidence. In this case, petitioner was sitting in the chair situated in the security branch, unauthorizedly at about 00.15 hours duly rounding-off the signature of his supervisor and signing himself in the duty register without prior permission of his supervisor/superior though he absented to his duty in the earlier shift. Naturally, every supervisor will ask his subordinate staff and in such a situation, there was heated argument between them in view of arrogant manner of petitioner. Further, the SHG informed to DM:NKG about assault over phone who suggested Sri. Attar Singh leading hand to look after the security branch. Further, the contention of petitioner that he has many appreciation letters from his superiors and the same were not considered by the respondent before imposing punishment is not correct, according to the learned counsel.
In the impugned order, the Assistant Director (V&S), Hyderabad Zone after giving careful consideration to the Enquiry Officer’s findings together with the evidence available on record, came to the provisional conclusion that the charges framed against petitioner were proved for which punishment of withholding of annual increment for a period of two years which shall have the effect on his future increments besides treating the suspension period as ‘not on duty’ for all purposes is fit and proper to be imposed on him.
At this stage, learned counsel for petitioner filed the Memo dated 11.09.2023, enclosing thereto the letter dated 19.08.2009, Enquiry Officer’s findings dated 13.08.2009 and copies of statements recorded on 21.07.2009 in charge sheet dated 28.04.2009. In the Enquiry Report, the Enquiry Officer had given charge-wise findings. As regards charge No.1, it was found that petitioner failed to produce any evidence to support his claim and he also failed to submit explanation for his late reporting. Insofar as charge No.2 is concerned, copy of duty allocation register makes it evident that delinquent employee rounded-off the signature of SHG and signed besides it, which indicates that he himself had rounded-off the signature of SHG and signed himself in the register. Therefore, it was found that the charge is proved. So also Charge No.4.
Insofar as charge No.3 is concerned, it was found that ‘when going through the records available there was no evidence to the occurrence of assault and the abuse with filthy language. In the preliminary enquiry also there was no evidence has appeared because the incident has taken place in lonely situation and only the accused and the complainant were present that too in a room i.e. in the Security branch. As there was no chance of availability of witness for the situation, when observed the bio-data of SHG and his seniority, the chance of false allegation by him not possible. It seems that the incident might have occurred and it was only our assumption. But without adequate witness, it is not possible to ascertain that it has happened. Assumptions shall not prove any such indent. Still the situation shall not deny it either. Because of the reasons and the existed records, it is concluded that the charge number three levelled against the delinquent employee is partially proved.’
Learned counsel for petitioner submits that the statement of Attar Singh, who performed duties on the fateful day from 19.00 hours to 03.30 hours at the depot garage is clear that petitioner was asking the SGH to permit him to duty at 23.50 hours. The statement of Sri Attar Singh, L.H. shows that he did not know about the incident as he had not seen or heard anything of their quarrel. When he came there to security branch, petitioner asked him to see the time and he observed it was 23.50 hours; at that time, petitioner has been asking the SHG to allow him to perform duty from 00.00 hours but he has told him that he should not allow him to perform the duty as he should continue the duty. Whereas the statement of Sri O. Dharma Theja, Security Inspector shows that according to the circumstantial evidence and with the statements of the SHG, it was evident that petitioner abused the SHG and assaulted when he mentally unbalanced and situation forced him to commit assault against the SHG, but there is no concrete statements in the recorded evidence. In the light of the same, it can be presumed that there existed a heated argument between petitioner and SHG, but however, there is no concrete evidence to prove the same. Further, in the report given by the Security Inspector, it was noted that he had collected the bio-data particulars of SHG and SG. The former was awarded a punishment with deferment of six months increment and also appreciated by the Director, V& S by sanctioning Rs.420/-reward for caught holding a culprit and petitioner has clean record without punishment / appreciation in his service.
Keeping in view all the facts and circumstances, this Court is of the opinion that interests of justice would be met if punishment is modified.
The Writ Petition is therefore, allowed in part. The punishment imposed vide order dated 22.10.2009 shall be read as ‘deferment of annual increment for a period of two years without cumulative effect, besides treating the suspension period as ‘not on duty’. No costs.
Consequently, the miscellaneous Applications, if any shall stand closed.