THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.1761 OF 2004 DATED FEBRUARY, 2010 BETWEEN T.S. Dayanand … Petitioner And Andhra Pradesh State Road Transport Corporation, Rep. by its Vice Chairman & Managing Director, Musheerabad, Hyderabad. And Others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.1761 OF 2004 ORDER: The order dated 09.12.2003 passed by the Andhra Pradesh State Road Transport Corporation (APSRTC) reverting the petitioner from the post of an Assistant Depot Clerk to that of a Conductor is under challenge. The petitioner joined the service of the APSRTC as a Conductor on 18.04.1975 and was promoted as an Assistant Depot Clerk on 12.06.1996. At the relevant point of time, he was working in the said capacity in the Earning Section. It is a matter of record that the Assistant Depot Clerks in the Earning Section complained about their long shifts stretching over 16 hours. Be that as it may, the petitioner was allotted the shift from 16.00 hours on 08.06.2003 to 08.00 hours on 09.06.2003. Owing to the alleged lapses committed by him during this shift, the APSRTC issued charge sheet dated 16.06.2003 calling upon the petitioner to submit his explanation to the following two charges: “Charge No.1 For your failure to feed the cash of Rs.5,159/- while performing duty on 16.00 Hrs. to 00.00 Hrs. on 8.6.03 at computer section of Hyd-1 Depot, for that you have received the cash of 06.00 Hrs. Raichur Day out service. Resulting of temporary misappropriation of bus cash, which constitutes misconduct under Reg.28(x) of APSRTC Employees (Conduct) Reg. 1963. Charge No.2 For your failure to post the time of receipt of conductor equipments and not signed in the column which shows gross negligence of duties in computer section which constitutes misconduct under Reg.28(xxxii) of APSRTC Employees (Conduct) Reg. 1963.” Dissatisfied with the petitioner’s response, an enquiry was instituted into the matter and by Report dated 16.09.2003, the Enquiry Officer held proved both the charges levelled against the petitioner. Basing thereupon, the disciplinary authority, being the Depot Manager, Hyderabad-1 Depot, issued the impugned proceeding dated 09.12.2003 directing the reversion of the petitioner from the post of an Assistant Depot Clerk to that of a Conductor for three years. The disciplinary authority further directed that the period of suspension undergone by the petitioner should be treated as “not on duty” for all purposes. Aggrieved thereby, the petitioner approached this Court in Writ Petition No.26621 of 2003, which was dismissed by order dated 23.12.2003, granting liberty to the petitioner to invoke the appellate remedy available to him. The petitioner filed an appeal before the Divisional Manager, APSRTC, Hyderabad, the third respondent, on 24.12.2003. But, no orders were passed thereupon. Hence, this writ petition. In its counter, the APSRTC sought to justify the disciplinary action taken against the petitioner on facts. The APSRTC admitted that the appeal filed by the petitioner was pending and assailed the maintainability of the writ petition on this count. Relevant to note, by interim order dated 30.01.2004, this Court stayed the order of reversion dated 19.12.2003 and directed the APSRTC to continue the petitioner in the post of Assistant Depot Clerk. However, there was no direction interdicting the APSRTC from passing orders on the appeal. Upon a query from this Court, Sri K.Madhava Reddy, learned standing counsel for the APSRTC, stated upon instructions that the appeal is still pending and no orders have been passed thereupon owing to the pendency of this writ petition. When there was no order staying further proceedings in the appeal, there is no justification for keeping the same pending for all these years. In such circumstances, I am not inclined to accept the plea of the APSRTC that this writ petition should not be adjudicated on merits and that the petitioner should be relegated to the pending appellate remedy at this stage. The misconduct alleged against the petitioner was under Regulation 28(x) and Regulation 28(xxxii) of the APSRTC Employees (Conduct) Regulations, 1963, which read as follows: “28. General Provisions: Without prejudice to the generality of the foregoing regulations, the following acts or omissions shall be treated as misconduct:- x) theft, fraud, dishonesty or misappropriation in connection with the business or the property of the Corporation; xxxii) violating any other specific rule or instructions of the Corporation in force.” So far as the charge under Regulation 28(x) is concerned, it is the contention of Smt.K.Udaya Sri, learned counsel for the petitioner, that the finding against the petitioner is vitiated by perversity. It is the case of the petitioner that he received the sum of Rs.5,159/- from the 06.00 Hrs. Raichur service Conductor at 17.30 Hrs. on 08.06.2003 but before he could make the necessary entry, he had to go to attend a call of nature. It is his claim that when he returned to his seat, the ‘Star’ (SR/Way Bill) pertaining to the said service was not found. He stated that he could not locate the same in spite of searching for it and as other service Conductors came to remit their collections, he could not make the subject entry up to the time of reorganization. It was only at 00.00 Hrs. (midnight) that he found the SR/Way Bill of the 06.00 Hrs. Raichur service under the Almirah behind his seat and made the entry at that time, after the completion of the reorganization for the date 08.06.2003. He further stated that he could not cancel such reorganization and accordingly, the entry was made on 09.06.2003. Relevant to note, he categorically stated that the cash amount of Rs.5,159/- was with him in his cash drawer all through. Surprisingly, the Enquiry Officer found fault with the petitioner for failing to produce evidence in support of his contention that the SR/Way Bill was missing. He also found fault with the petitioner for failing to produce evidence to prove his innocence and held the charge duly proved. The disciplinary authority also found fault with the petitioner for not reporting the loss of the SR/Way Bill to his superior and held that the charge was proved beyond reasonable doubt. The disciplinary authority stated as follows: “………. In this case it was proved without any doubt that you have failed to feed the cash into the computers even though the service arrived to depot by 17.15 Hrs. and you have received the conductor cash at 17.45 Hrs. but you failed to feed into computer which was clearly established that you have misappropriated the cash temporarily. ………” This Court is at a loss to understand as to how the failure on the part of the petitioner to make the entry within time substantiates the charge of misappropriation. Relevant to note, the charge against the petitioner was not with regard to the lapse, if any, on his part in making the computer entry. The charge specifically was under Regulation 28(x) which deals with theft, fraud, dishonesty or misappropriation of the property of the APSRTC. It is not in dispute that the petitioner was on the shift which stretched from 16.00 Hrs. on 08.06.2003 to 08.00 Hrs. on 09.06.2003. It is not the case of the APSRTC that the petitioner left the premises and utilized the amount of Rs.5,159/-, which according to him was in his custody throughout. The explanation of the petitioner with regard to the late entry in respect of this receipt was that the SR/Way Bill connected therewith was misplaced and that he made the entry at midnight as soon as he found the said document. When the charge levelled against the petitioner was a serious one reflecting upon his character and integrity, as he was alleged to have committed misappropriation, it was incumbent upon the APSRTC to establish the said charge with due and proper evidence. The material on record, as reflected by the Enquiry Report and the order of the disciplinary authority, at best, demonstrated a lapse on the part of the petitioner in failing to make the computer entry immediately after receipt of the cash. No evidence whatsoever was adduced to show that the petitioner utilized or appropriated the cash amount so received for his own purposes. Unless such appropriation is demonstrated, the charge of ‘misappropriation’ is not established. The finding of the Enquiry Officer, accepted thereafter by the disciplinary authority, on the charge of misappropriation is therefore utterly perverse being unsupported by evidence. Hence, the finding of guilt recorded against the petitioner in so far as charge No.1 is concerned, falls to the ground. As regards charge No.2, the misconduct alleged against the petitioner is with regard to violation of ‘any other specific rule or instruction of the Corporation in force’. Charge No.2 reads to the effect that the petitioner failed to post the time of receipt of the Conductor’s equipment and had not signed in the column, demonstrating negligence towards duties and constituted misconduct under Regulation 28(xxxii). The stand of the petitioner in response to this charge was that the equipment was given to the Conductors permanently and it was not the practice to give and receive the same on a daily basis. He therefore disclaimed any negligence in the performance of duty in this regard. In the light of the petitioner’s stand that there was no practice or procedure of receiving the Conductor’s equipment on a daily basis, it was incumbent upon the APSRTC to establish the same. However, neither the Enquiry Officer nor the disciplinary authority thought it fit to point out which specific Rule or instruction of the APSRTC required the petitioner to make an entry with regard to the receipt of the Conductor’s equipment, so as to establish the failure on his part, attracting Regulation 28(xxxii). In the absence of a specific violation of a particular Rule or instruction being established on facts, the finding of the disciplinary authority as regards charge No.2 is equally perverse. In such circumstances, when the findings of the Enquiry Officer, duly accepted and confirmed by the disciplinary authority, were vitiated by perversity and lack of evidence, the disciplinary action based thereon is legally unsustainable. Sri K.Madhava Reddy, learned standing counsel for the APSRTC, submitted that the petitioner had only been inflicted with the punishment of reversion for a limited period and therefore the same did not warrant any interference by this Court. However, Smt.K.Udaya Sri, learned counsel, submitted that her client had been denied further promotions to the posts of TI(Gr.II) and TI(Gr.III) owing to the disciplinary action visited upon him and due to the pendency of this writ petition; and hence, the injustice done to him required to be redressed by this Court. The entitlement of the petitioner to further promotions is not the issue before this Court and is of no concern to the present adjudication. However, the disciplinary action taken against the petitioner, being opposed to settled legal principles, cannot be permitted to stand. For the reasons aforementioned, the punishment of reversion imposed upon the petitioner under order dated 09.12.2003 is vitiated owing to the perversity of the findings on which it is based. The order dated 09.12.2003 is accordingly set aside. The petitioner shall be entitled to all consequential benefits. The writ petition is allowed but, in the circumstances of the case, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. ___________February, 2010. VGSR