THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.243 OF 2002 DATED APRIL, 2010 BETWEEN K.Shanthaiah … Petitioner And APSRTC, Reptd. by its Regional Manager, Nizamabad Region, Nizamabad. And Another. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.243 OF 2002 ORDER: Disciplinary proceedings against the petitioner, a Driver in the Andhra Pradesh State Road Transport Corporation (APSRTC), culminated in deferment of his annual increments for a period of two years with effect on his future increments, under order dated 07.08.1999. The period of his suspension was directed to be treated as ‘not on duty’. The said order came to be confirmed in appeal on 20.03.2001 and thereafter in review on 20.08.2001. Hence, this writ petition. Though Sri V.Narasimha Goud, learned counsel for the petitioner, addressed arguments on the factual aspects touching upon the charge levelled and held proved against the petitioner, there is no necessity for this Court to delve into the factual realm as the matter is amenable to disposal on other grounds. Regulation 8(1) of the APSRTC Employees (Classification, Control and Appeal) Regulations, 1967 (for brevity, ‘the Regulations of 1967’) enumerates the penalties that may be imposed on an employee. It reads as under: “8. Penalties: (1) The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon an employee namely:– (i) censure; (ii) withholding of the privilege of free passes or privilege ticket orders or both for travel on the railway or the bus services of the Corporation, as the case may be, in the case of employees to whom such privilege or privileges are admissible; (iii) fine, in the case of persons for whom such penalty is permissible under these Regulations, vide sub-clause (3); (iv) withholding of increments; (v) recovery from pay of the whole or part of any pecuniary loss caused to the Corporation by an employee’s negligence or breach of orders; (vi) suspension, where a personal has already been suspended under Regulation 18 pending enquiry into his conduct, to the extent considered necessary by the authority imposing the penalty; (vii) reduction to a lower rank in the seniority list or to a lower post or time-scale, whether in the same class of service or in another class or in another class, or to a lower stage in a time-scale; (viii) removal from the service of the Corporation which does not disqualify from future employment; (ix) dismissal from the service of the Corporation which ordinarily disqualifies from future employment.” Framed in exercise of the powers conferred by Section 45(1) of The Road Transport Corporations Act, 1950, the Regulations partake a statutory flavour. Regulation 12(13) is also of relevance. It reads: “12. Procedure for imposing penalties: (13) The authority competent to impose the penalty shall then determine what penalty, if any, should be imposed on the employee, and pass appropriate orders on the case. If the penalty proposed to be imposed is one of the penalties specified in items (vii), (viii) and (ix) of Regulation 8, he should be given a opportunity to show cause why the said penalty should not be imposed.” Thus, the Regulations envisage that before a penalty proposed in items (vii), (viii) and (ix) of Regulation 8(1) is imposed upon an employee, he should be given an opportunity to show cause as to why the said penalty should not be imposed. The Regulations further stipulate that such opportunity follows the determination of the guilt of the employee in a duly constituted enquiry [Regulation 12(2)]. In the present case, the impugned proceeding dated 07.08.1999 demonstrates that after the Enquiry Officer submitted his report dated 16.06.1999, the petitioner was given an opportunity to respond thereto and he submitted his explanation dated 05.07.1999. He was however not asked to show cause as to why the punishment of deferment of two annual increments with cumulative effect should not be imposed on him, as required under Regulation 12(13) of the Regulations of 1967. The specific case of the petitioner as culled out from Ground No.VI in the affidavit filed in support of this writ petition is that while imposing the punishment, no opportunity by way of issuing Show Cause Notice was given to him. The APSRTC failed to file its counter in the matter but the learned counsel representing the APSRTC confessed that he has no instructions to deny this allegation on facts. It must therefore be accepted that the petitioner was not put on notice prior to the imposition of the punishment as required by Regulation 12(13) of the Regulations of 1967. The impugned proceeding also speaks to the same effect. Sri V.Narasimha Goud, learned counsel, placed reliance on the unreported Judgment dated 30.10.2008 of a learned single Judge of this Court in Writ Petition No.17698 of 2000. Dealing with this very issue, the learned Judge opined that withholding of increments with cumulative effect would not be a minor punishment under Regulation 8(1)(iv) but would be a major penalty under Regulation 8(1)(vii) of the Regulations of 1967, as the same would have the effect of reducing the employee to a lower time-scale. The learned Judge also considered the effect of Regulation 12(13) of the Regulations of 1967 and came to the conclusion that the requirement of issuance of a second Show Cause Notice, being stipulated by the Regulations themselves, could not be overlooked. The Judgment in Writ Petition No.17698 of 2000 was confirmed in appeal by Judgment dated 30.06.2009 in Writ Appeal No.908 of 2009. Relevant to note, I was a member of the Division Bench which passed the said order. In the light of the aforestated settled legal position, the failure on the part of the APSRTC in issuing a second Show Cause Notice prior to imposition of punishment in accordance with Regulation 12(13) of the Regulations of 1967 vitiates the disciplinary action taken against the petitioner which was thereafter confirmed in appeal and in review. The facts of the case clearly manifest violation of the statutory procedure. No doubt, in W.P.No.17698 of 2000, the learned single Judge modified the punishment keeping in view the fact that the charge levelled against the petitioner therein was held proved. However, in the present case, it is to be noticed that the petitioner was honourably acquitted in the criminal case initiated on the same charge that was levelled against him in the disciplinary proceedings. That being so, I do not see any exceptional circumstances warranting exercise of the power of this Court to modify the punishment. The impugned proceedings are therefore illegal and are accordingly set aside. The APSRTC shall restore the deferred increments to the petitioner along with all consequential benefits and shall treat the suspension period undergone by him as ‘on duty’. This exercise shall be completed within a period of three months from the date of receipt of a copy of this order. The writ petition is accordingly allowed. There shall be no order as to costs. ____________________ SANJAY KUMAR, J. _________ APRIL, 2010. VGSR