IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE EIGHTEENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.3573 of 2000 Between: B. Mogalaiah, S/o. Mallaiah, aged about 35 years, Occ: Driver, E.No.291029, Dubbaka Depot, APSRTC, H.No.4-8-85/1/A, Manjeera Nagar, Sangareddy, Medak District. … Petitioner And 1. The APSRTC, rep. by its Managing Director, APSRTC, Musheerabad, RTC ‘X’ Roads, Hyderabad. 2. The APSRTC, rep. by its Regional Manager, APSRTC, Sangareddy Region, Medak District. 3. The APSRTC, rep. by its Dy. Chief Traffic Manager, APSRTC, Sangareddy, Medak District. 4. The APSRTC, rep. by its Depot Manager, APSRTC, Narayankhed Depot, Medak District. … Respondents Petition under Article 226 of the constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court may be pleased to issue a writ or direction more particularly one in the nature of writ of Mandamus declaring the action of the respondents in removing the petitioner from service by the order vide proceedings No.P2/1(23)/98-NKD dated 09-11-1998 of respondent No.4 and confirming the same in appeal by the order vide PA/23(13)/99-DY CTM:SRD dated 08-07-1999 of respondent No.3 and modifying the same in review vide Proc.No.PA/23(13)/99 DYCTM: SRD dt30-08- 1999 by respondent No.2 to the extent of not granting continuity of service, back wages and other attendant benefits as arbitrary and illegal and consequently direct the respondents to reinstate the petitioner with continuity of service with full back wages and other attendant benefits. Counsel for the petitioner: Mr. B.H.R. Chowdary Counsel for the respondents: Smt. B.G. Umadevi The court made the following Order: The petitioner seeks a Writ of Mandamus declaring the order dated 20-11-1998 passed by respondent No.4, as confirmed by respondent No.3, appellate authority, and respondent No.2, reviewing authority, as arbitrary and illegal. 2. The petitioner was appointed as driver in APSRTC and his services were regularized in the category of driver Grade II in the year 1997. On the ground that he left the headquarters and unauthorizedly absent for duties from 21-04-1998 to 09-06-1998, disciplinary proceedings were initiated against him and he was issued charge sheet dated 09-06-1998 with the following charges: “1. For having left the headquarters without permission from the competent authority, which constitutes misconduct under Reg.5 of APSRTC Employees’ (Conduct) Regulations, 1963. 2. For your unauthorizedly absence for duties from 21- 04-1998 to 09-06-1998 without intimation or prior permission from the competent authority resulting in cancellation of Sch.Kms., besides huge loss of revenue to the corporation and lot of inconvenience to the traveling public, which constitutes misconduct under Regulation 28 (xxvii) of ASPRTC Employees’ (Conduct) Regulations, 1963.” 3. The petitioner submitted his explanation to the charge sheet on 26-09-1998 stating that as he was suffering from back and joint pans, on the advice of the authorities, he has taken treatment in Govt. Hospital, Narayankhed and that he was referred to R.T.C. Hospital, Tarnaka, and, as such he joined in the said hospital on 20-08-1998. Further, the petitioner explained that as his ailment was not completely cured, he had to stay away from duties beyond 21-04-1998. As the explanation of the petitioner was not satisfactory, the respondents proceeded with the enquiry and appointed an enquiry officer. The enquiry officer who was appointed to enquire into the charges framed against the petitioner has submitted his report to the effect that the charges framed against the petitioner are proved. Based on the said findings, by issuing a second show cause notice indicating punishment and on receipt of explanation, the Depot Manager, Narayankhed, passed the impugned order dated 20-11-1998 removing the petitioner from service. Challenging the said order, the petitioner filed an appeal before the appellate authority, who by his order dated 18-07-1999, dismissed the appeal. Thereon, the petitioner filed a review petition before the Regional Manager. The reviewing authority, by order dated 30-08-1999, while confirming the order of removal, modified the punishment and ordered to appoint the petitioner as casual driver (wrongly shown as casual conductor) and posted him at Dubbaka Depot. 4. Heard the learned counsel for the petitioner, Sri B.H.R. Choudary, and the learned Standing Counsel, Smt. B.G. Umadevi, learned Standing Counsel appearing for the respondents. 5. In this writ petition, it is contended by the learned counsel for the petitioner that in spite of valid reasons given by the petitioner in the explanation submitted by him as to his absence, in spite of the same, the respondents have misconstrued the same and based on the erroneous findings recorded by the enquiry officer, ordered removal of the petitioner from service. It is submitted that though the reviewing authority has modified the punishment, however, there was no valid reason for issuing directions to appoint the petitioner as a casual driver as much as the petitioner was initially appointed as a casual driver in the year 1993 and his services were regularized with effect from 31-07- 1997. 6. On the other hand, it is contended by the learned Standing Counsel appearing on behalf of the respondents that with reference to the material on record and considering the explanation filed by the petitioner, the enquiry officer came to a conclusion that there was no proper explanation for the period of absence, and, as such, he has recorded a finding that the charges framed against the petitioner were proved. It is submitted that even the reviewing authority has concurred with the findings of the disciplinary and appellate authorities, but taking a lenient view, issued directions to appoint the petitioner as casual driver and there are no grounds to interfere with the same. 7. Having regard to the rival contentions of the learned counsel, in this case, it is to be noted that though the petitioner has taken treatment at Narayankhed Hospital, but thereafter, on the advice of the authorities, he was admitted in APSRTC Hospital, Tarnaka and was discharged on 21-04-1998. Though it was his case that though his ailment was not completely cured and therefore he had to stay away from duties beyond 21-04-1998, there is no material on record to justify the absence for the period from 21-04-1998. The reasons for his absence from 21-04-1998 were considered by the enquiry officer and on appreciation of the evidence on record, he came to a conclusion that the petitioner was unauthorizedly absent. In the absence of pointing out any procedural irregularity in the conduct of enquiry, it is not possible for this court to substitute its view, accepting the plea of the petitioner that he could not attend duties for the reason that his ailment was not completely cured even beyond 21-04-1998. It is to be noted that the appellate authority rejected the appeal filed by the petitioner and when the matter was carried in review, the Regional Manager issued orders to appoint the petitioner as a casual driver. At the same time, it is to be noticed that the petitioner was initially appointed as casual driver in 1993 pursuant to a regular notification and his services were regularized on 31-07-1997. On the date of removal of the petitioner, he was regular driver and hence there was no reason for the reviewing authority for issuing directions to appoint the petitioner as a casual driver instead of regular driver. Though it is contended by the learned Standing Counsel appearing for the respondents that the matter has to be remitted for fresh consideration by the disciplinary authority, however, it is to be seen that the order of removal of the petitioner from service is dated 20-11-1998 and after the appeal and review petitions were disposed of, this writ petition was filed in the year 2000 and the matter has been pending consideration since then before this court. Taking into account the fact that the matter has been pending for nine long years before this court and about twelve years have passed by since the date of removal of the petitioner from service, to put quietus to the litigation, this court is of the view that interests of justice would be met by modifying the order of the reviewing authority to the following effect. 8. The petitioner shall be appointed as a regular driver, but not as a casual driver as ordered by the reviewing authority. If the petitioner is appointed pursuant to the orders of the reviewing authority, he shall be treated to have been appointed as regular driver. At this stage, it is submitted by the learned counsel for the petitioner that subsequently also, for another misconduct, the petitioner was removed from service and he has questioned his removal before the Industrial Tribunal. Hence, the observations made hereinabove will be subject to the validity of the removal order passed subsequently. 9. The writ petition is partly allowed to the extent indicated above. No order as to costs. _____________________ R. SUBHASH REDDY, J. February 18, 2009 MRR