IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIRST DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 2859 of 2006 Between: S. Chand Basha, S/o. Shali Naik, R/o. D.No.3/507, Anjuman Street, Nandyal, Kurnool District. ..... PETITIONER AND 1 The Depot Manager, APSRTC, Banganapalli Depot, Nandyal, Kurnool District. 2 The Regional Manager, APSRTC, Kurnool Region, Kurnool. 3 The Regional Manager, APSRTC, Kurnool Region, Kurnool. .....RESPONDENT(S) 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 a writ, order or direction more particularly one in the natureof writ of mandmaus or any other appropirate writ, declaring the Proceedings No.E1/1(25)/2004-BPL dt. 8.7.2004 of the 1st respondent, Proceedings No.St/19(198)/2004DVM-NDL dt. 6.12.2004 of the 2nd respondent and proceedings No.PA/19(7)/2005-RMQ dt. 19.1.2005 of the 3rd respondent as illegal, arbitrary inviolation of principles of natural justice and inviolation of Art. 14 of the Constitution of India and contrary to the leave regulations of the Corporation and Set-aside the same and consequently direct the respondents to reinstate the petitioner into service will continuity of service attendant benefits and back wages and pass. Counsel for the Petitioner:MR.A.RAMA RAO Counsel for the Respondent No.: MR.P.VINAYAKA SWAMY The Court made the following : THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 2859 of 2006 ORDER: The petitioner is appointed as a Driver in Banaganapalli Depot of A.P.S.R.T.C. He was issued a charge sheet, dated 14.06.2004, alleging that he remained unauthorisedly absent for six days and three days, in two diﬀerent spells. The petitioner submitted his explanation on 21.06.2004. Not being satisﬁed with the explanation oﬀered by the petitioner, the 1 st respondent appointed an enquiry oﬃcer. A report was submitted on 22.06.2004. The charges framed against the petitioner were held proved. On the basis of the same, the 1st respondent issued a show cause notice, proposing the punishment of removal, and the petitioner submitted his explanation. Through his order, dated 08.07.2004, the 1st respondent directed removal of the petitioner from service. The appeal preferred by the petitioner before the 2nd respondent was rejected. Hence, this writ petition. Sri S.D.Goud, learned counsel for the petitioner submits that the impugned order is absolutely without any basis and the punishment is totally disproportionate to the charges framed against the petitioner. He contends that though the period of absence mentioned in the charges was nine days, the 1st respondent was inﬂuenced by the fact that the petitioner remained absent from 03.07.2004 onwards, which, in fact, did not constitute the basis of the charges. He places reliance upon the Judgment rendered by a Division bench of this Court in Writ Appeal. No.769 of 2005. Learned Standing Counsel for the respondents, on the other hand, submits that the petitioner is a habitual absentee and the period subsequent to 03.07.2004 was treated only as an aggravating circumstance. She contends that the writ petition is not maintainable, in view of the fact that the petitioner had an alternative remedy of review as well as industrial dispute before the Labour Court. The allegation against the petitioner as mentioned in the charge sheet is that he remained absent for six days between 16.04.2004 and 22.04.2004 and for another spell of three days between 29.04.2004 and 02.05.2004. The enquiry oﬃcer held these charges proved. On the basis of the same, the 1st respondent proposed the punishment of removal. The petitioner reiterated his defence and narrated the circumstances, under which he was compelled to remain absent. The 1st respondent, however, took into account the fact that the petitioner remained absent for duties from 03.07.2004 till the date of order i.e., 08.07.2004. A Division Bench of this Court in Writ Appeal No.769 of 2005 took the view that the disciplinary authority cannot take into account any facts, which do not constitute the basis of charges, while passing an order of removal. In the instant case, the 1st respondent took into account, the fact that the petitioner remained absent form 03.07.2004 to 08.07.2004. An examination of the sequence of events would disclose the arbitrariness on the part of the 1st respondent. The charge sheet was issued on 14.06.2004 and the order of removal came to be passed within three weeks. The period of absence attributed against the petitioner is nine days. Even assuming that the employee does not have any valid explanation for the absence of nine days, it is just unimaginable that it would entail in termination of service. The issuance of two show cause notices, conducting of domestic enquiry and consideration of explanations on both the occasions was virtually reduced to an empty formality. The lapse on the part of the petitioner can be penalized by denying him the back wages. The objection raised by the respondents as to maintainability of the writ petition cannot be entertained. The reason is that the case before the Division Bench, referred to above, was also against an order of dismissal from service and the petitioner therein did not approach the Labour Court before ﬁling the writ petition; and the same was not treated as disqualiﬁcation. At any rate, when glaring irregularity is noticed, the writ petition cannot be dismissed, on the ground of alternative remedy. The writ petition is, accordingly, allowed and the order of removal, dated 08.07.2004, is set aside. The petitioner shall be reinstated into service with continuity of service and attendant benefits, but without back wages. There shall be no order as to costs. _________ 01.08.2008 JSU ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{CTMP} THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 2859 of 2006 Date: 01.08.2008 JSU