IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY EIGHTH DAY OF JANUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.7943 of 1999 Between: Shaik Masthan, S/o Silar Saheb, R/o.Varigonda Village and Post, T.P.Gudur Mandal, Nellore District. ..... PETITIONER AND 1 The Depot Manager A.P. State Road Transport Corporation, Raipur Depot, Nellore District. 2 The Vice Chairman Managing Director, A.P.S.R.T.C., Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in removing the petitioner from service as driver in Andhra Pradesh State Road Transport Corporation in Raipur Depot and also the award of Labour Court, Guntur in Industrial Dispute No.289/90 in conforming the order of the management, as illegal, arbitrary and disproportionate to the incident and violative of Art. 14,20 and 21 of the consequently direct the respondents to reinstate the petitioner in service and grant him all his monetary benefits and service weightage and other benefits attached to his post and pass. Counsel for the Petitioner: MR.P.SRIDHAR REDDY Counsel for the Respondent Nos.1 and 2: MR.C.PRAKASH REDDY The Court made the following : ORDER: This writ petition is filed by the petitioner, who worked as a driver in the Andhra Pradesh State Road Transport Corporation challenging the award dated 02.03.1995 passed by the Labour Court, Guntur in I.D.No.289 of 1990. The petitioner was appointed as a driver in the respondent Corporation on 22.07.1987 at Rapur Depot of Nellore District. On 28.06.1988 he was on duty to drive the bus bearing No.AEZ 3479 on the route Gudur to Rapur, and at about 10.50 a.m when the said bus reached Chennur, he caused a fatal accident, which resulted in death of a cyclist, who was coming in the opposite direction. Immediately after the accident, a preliminary enquiry was conducted and a report was submitted, which revealed that the accident occurred due to rash and negligent driving of the petitioner. Based on the said report, a charge sheet was issued against the petitioner by framing two charges, which read as under: “1. For having driven the Bus No.ASZ/3479 with rash, negligent manner and with high speed and without road sense, resulting in fatal accident at 10.50 AM on 20.06.88 near Chennur on the route Gudur to Rapur, causing death of a cyclist coming in the opposite to direction to the bus which constitutes misconduct as per clauses (ix) (a) & (xx) of Reg.28 of APSRTC of Employees (Conduct) Regulations, 1963. 2. For having failed to follow the standing instructions issued on prevention of accidents while driving the buses, which constitutes misconduct as per clause (xxxii) of Reg.28 of APSRTC Employees (Conduct) Reg, 1963.” Though the petitioner submitted an explanation to the said charge sheet denying the allegations, the management being not satisfied with the same ordered for regular enquiry by appointing an Officer. The Enquiry Officer conducted the enquiry, recorded the statements of K.Lavan Kumar, Conductor of the said bus and other witnesses by name Sk.Babu and P.J.Basha, and submitted a report stating that the accident occurred due to negligent driving by the petitioner. Based on the report of the Enquiry Officer, the first respondent removed the petitioner from service by order dated 06.12.1998. Though the petitioner has challenged the order of removal by way of appeal, the appeal was also ended in dismissal by order dated 25.06.1990. Aggrieved by the same, the petitioner has raised an industrial dispute in I.D.No.289 of 1990 before the Labour Court, Guntur. The Labour Court, Guntur by the impugned award confirmed the order of punishment of removal and held that the management is justified in removing the petitioner from service. Hence, the present writ petition. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Corporation. In this writ petition, the only argument advanced by the learned counsel for the petitioner is that the petitioner was also charge sheeted for the offence punishable under Section 304-A I.P.C., tried in C.C.No.139 of 1988 before the Judicial Magistrate of First Class, Gudur and was acquitted from the said charge on 30.01.1990. The learned counsel for the petitioner contended that though the said judgment was placed before the Tribunal, without considering the same in proper perspective the Tribunal simply confirmed the order of removal, and that as much as the charge in both the departmental proceedings and criminal case is one and the same, in view of acquittal of the petitioner in criminal case, the order of removal is liable to be set aside. The learned counsel for the petitioner placed reliance on a Division Bench Judgment of this Court in S.K.Ramju v. Regional Manager, APSRTC, Nalgonda[1] with reference to the above said argument. On the other hand, it is argued by the learned Standing Counsel appearing for the respondents that the degree of proof required in departmental proceedings and criminal proceedings is at variance and merely because the petitioner was acquitted in criminal case by itself is not a ground to set aside the order of removal. It is also submitted that the evidence in both the departmental proceedings and criminal case is different and on the said ground also there is no infirmity in the order of removal passed by the respondent management as confirmed by the Tribunal. It is to be noted that having regard to the charges framed against the petitioner in the departmental proceedings the petitioner filed an explanation denying the charge sheet allegations stating that for avoiding a buffalo which was crossing the road, he swerved the bus to the road side and in that process the cyclist, who was coming in the opposite direction lost control and came in contact with the right corner of the front cowl of the bus and that he was not negligent in driving the bus, which resulted in fatal accident. But, however, in spite of such a defence, by relying on the statements of K.Lavan Kumar- Conductor of the said bus, and two other witnesses S.K.Babu and P.J.Basha, the Enquiry Officer categorically recorded a finding that the petitioner was driving the bus at the speed of 40 to 45 K.M per hour and there was no buffalo on the road as pleaded by the petitioner so as to take the bus on the extreme right side of the road. It is also to be noted that before the Labour Court the petitioner filed a memo without disputing the findings recorded in the domestic enquiry proceedings. A perusal of the judgment rendered by the Criminal Court in C.C.No.139 of 1988 would show that the Criminal Court has acquitted the accused/petitioner herein relying on the evidence of P.Ws.1 and 2, who are the eyewitnesses to the occurrence, on the ground that they did not depose that the petitioner was the driver of the bus at the time of offence. Even if the oral and documentary evidence filed before the Criminal Court is looked at in the appendix of evidence it is different from the evidence recorded in the departmental proceedings wherein findings were recorded against the petitioner. Though the learned counsel for the petitioner relied on the judgment of this Court in the case of S.K.Ramju v. Regional Manager, APSRTC, Nalgonda (supra), it is well settled that mere acquittal of the accused in the criminal case will not result in setting aside the order of removal passed against him in the departmental proceedings. Therefore, the area, which is required to be considered in this writ petition, is whether the charges and the evidence recorded in the departmental proceedings as well as the criminal case are same or not. When there is variance in oral and documentary evidence, it is always open for the respondent-management to record its findings based on the evidence recorded in the departmental proceedings. More over in the case on hand, the petitioner did not take any defence to the effect that he was not driving the bus on the date of accident. In that view of the matter, the submission of the learned counsel for the petitioner that the petitioner was acquitted in the criminal case and therefore the order of removal is liable to be set aside, cannot be accepted. Except the said argument, as no other argument is advanced by the learned counsel for the petitioner, I do not find any merit in this case to interfere with the impugned order. For the aforesaid reasons, the writ petition is dismissed. There shall be no order as to costs. ___________________ R.SUBHASH REDDY, J Date: 28.01.2009 va [1] 2001(4) ALD 535 (DB)