THE HON’BLE SRI JUSTICE G.CHANDRAIAH %17-07-2008 W.P.NO.4472/2002 K.Shyam Sunder. PETITIONER And THE A.P.S.R.T.C. rep. by its Vice-chairman, and Managing Director, APSRTC, Mjusheerabad, Hyderabad and another. RESPONDENTS Counsel for the petitioners: SRI P.Raghavender Reddy. Counsel for the respondents- Sri K.Madhava Reddy < Gist Head Note. ?Cases Referred: 1. 1997(1) ALD 451 2. 2007(5) ALD 416 3. 1995(1) ALT 553 (DB). THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.4472 OF 2002 O R D E R Heard both the counsel. 2. This writ petition is filed for a writ of Mandamus calling for the records relating to the office order No.PA/20(198)/2000-HCR dated 12.9.2001 issued by the 2nd respondent – The Regional Manager, APSRTC, Hyderabad City Region, JBS Picket, Secunderabad and set aside the same as illegal and arbitrary and further direct the respondents to implement the Proc.PA/20(198)/2000-HCR dated 18.1.2001 without imposing the condition of giving in writing about acceptance of the conditions imposed in the said proceedings dated 18.1.2001. 3. The case of the petitioner, as stated in the affidavit filed in support of the writ petition, is that, he was appointed as Conductor in the Andhra Pradesh State Road Transport Corporation (for short ‘the Corporation’) and by proceedings No.P3/1(3)/2000-MSRD dated 18.5.2000, he was removed from service and he preferred appeal and the same was rejected by proceedings No.APA/19(89)/2000-DVM-CR dated 11.92000 and aggrieved by the same, he preferred a review and the 2nd respondent – Regional Manager by proceedings No.PA/20(198)/2000-HCR dated 18.1.2001 ordered reinstatement afresh with certain conditions and the condition no.5 in the said proceedings is to the effect that he shall given in writing that the terms and conditions are acceptable to him. Pursuant to the proceedings dated 18.1.2001 issued by the 2nd respondent – Regional Manager, the Divisional Manager, Sanathnagar Division, by proceedings No.P2/255(7)/2001-SNG dated 17.4.2001, posted the petitioner to Medchal Depot with the conditions stipulated in the proceedings of the 2nd respondent dated 18.1.2001 and pursuant to the said proceedings, the petitioner submitted representations dated 1.5.2001 and 2.7.2001 expressing him willingness to join duty, reserving his right to claim for service benefits. The 2nd respondent without any notice to the petitioner, issued proceedings in Order No.PA/20(198)/2000 HCR dated 12.9.2001, canceling the earlier proceedings dated 18.1.2001. Thereafter, the Depot Manager, APSRTC, Musheerabad Depot vide Lr.No.P3/1(03)/2000-MSRD dated 23.11.2001, advised the petitioner to attend the office and submit claim forms, in connection with settlement of accounts within seven days of the receipt of the letter and in default necessary action will be taken, deeming that he is not interested in settlement of accounts and as the petitioner was interested in the job, he has not preferred to settle his accounts. Now aggrieved by the proceedings dated 12.9.2001 issued by the 2nd respondent, the present writ petition is filed. 4. The case of the petitioner is that the Regional Manager is not vested with power to order for fresh appointment, since fresh appointment in the Corporation to any of the posts, has to be done in accordance to the provisions of APSRTC Employees (Recruitment) Regulations 1966. It is stated that the power of the reviewing authority i.e., the Regional Manager in the present case, is will defined in Regulation 20 of the APSRTC Employees (CC &A) Regulations, 1967. With these averments, inter alia, the proceedings dated 12.9.2001 issued by the 2nd respondent – Regional Manager was sought to be set aside and for a direction to implement the proceedings dated 18.1.2001, without imposing the condition of giving in writing by the petitioner about the acceptance of the conditions imposed in the said proceedings. 5. The Law Officer of the Corporation filed counter affidavit on behalf of the respondents. It is stated that as the petitioner was unauthorizedly absented from duties from 2.2.2000 to 28.2.2000, he was removed from service after conducing enquiry and after giving opportunity to the petitioner. On appeal, the Divisional Manager confirmed the order of removal and the Regional Manager, considering the review petition, held that the charges are proved and that the removal from service is justified. However, considering his length of service, the petitioner was appointed afresh with the certain conditions and directed the petitioner to report to the Divisional Manager, Sanathnagar, Division at Kukatpaly within seven days of the receipt, failing which, the order of appointment, stands cancelled and as per condition no.5, the petitioner should give in writing that the terms and conditions are acceptable to him. The petitioner after receipt of the said order on 30.1.2001, submitted his representation that he is not in a position to given in writing, accepting the terms and conditions mentioned in the said order dated 18.1.2001 and did not report for duty at Medical Depot. It is stated that the Regional Manager held that the order of removal was justified, but exercising his discretion, ordered reinstatement afresh exercising his jurisdiction under Regulation 29 of the A.P.S.R.T.C. Employees (CC &A) Regulations, 1967 and it was did so on compassionate grounds. As the petitioner did not join duty, by proceedings dated 12.9.2001, the earlier proceedings was cancelled and for which no notice is required. As per the Circular No.46/1996 dated 10.4.1996 the appellate/review authorities were conferred with the power to order fresh appointment after due consideration of the review petition and, therefore, the 2nd Regional Authority passed the order dated 18.1.2001 and as the petitioner failed to join duty, the said proceedings were cancelled. With these averments, inter alia, the writ petition was sought to be dismissed. 6 . The learned counsel appearing for the petitioner submitted that pursuant to the proceedings dated 18.1.2001 passed by the 2nd respondent – Regional Manager, the petitioner expressed his willingness to join duty and submitted his representations dated 1.5.2001 and 2.7.2001. He further submitted that the petitioner availed leave from 2.2.2000 to 28.2.2000 after due intimation and consent of the concerned. He submitted that the condition no.5 in the proceedings dated 18.1.2001 is like taking away the statutory right of the petitioner and, therefore, in the representations submitted by the petitioner showing his willingness to join duty, he sought to reserve his right to claim for service benefits, but the 2nd respondent cancelled the proceedings dated 18.1.2001 without giving any notice. He stated that the 2nd respondent – Regional Manager has power to impose punishments as per the Regulation 29 of the A.P.S.R.T.C. Employees (CC & A) Regulations, 1967 and he cannot impose punishment or conditions not contemplated under the statute and hence the condition no.5 is contrary to the Regulations 1967. In support of his contention, he relied on the judgments of the learned single Judges of this court reported in G.SAMBASIVA RAO v. A.P.S.R.T.C. and K.C.NARAYANA v. MANAGING DIRECTOR, APSRTC, HYD. He submitted that when the petitioner submitted his willingness to join duty pursuant to the proceedings dated 18.1.2001, the 2nd respondent is not justified in canceling the proceedings dated 18.1.2001. With these averments, he sought to set aside the proceedings dated 12.9.2001 and to restore order dated 18.1.2001 without the condition no.5 in the said proceedings. 7. On the other hand, the learned Standing Counsel reiterating the averments made in the counter affidavit, further submitted that the petitioner was reinstated afresh only on compassionate grounds by the 2nd respondent, exercising his discretion. He further submitted that the charges are proved in the enquiry, which was conducted after following the principles of natural justice and the removal was also held to be justified by the Regional Manager and he has only appointed afresh on compassionate grounds and such an order cannot be treated as an order passed in modification of punishment imposed and the petitioner is not entitled for any past service and, therefore, the Regional Manager is justified in imposing the condition no.5 in the proceedings dated 18.1.2001 that he shall give in writing that the conditions giving fresh appointment, are acceptable to him. In support of his contention, he relied on the judgment of the Division Bench of this court reported in P.HABEEB SAHEB vs. A.P.S.R.T.C. . He further submitted that as the petitioner did not join duty within the time stipulated, the 2nd respondent passed orders canceling the earlier proceedings reinstating the petitioner afresh, and hence the said proceedings are perfectly justified and does not warrant any interference. With these contentions, the writ petition was sought to be dismissed. 8. In order to appreciating the above contentions, it is necessary to note the admitted facts and the conditions incorporated by the 2nd respondent – Regional Manager in the proceedings dated 18.1.2001 and the subsequent proceedings dated 12.9.2001. 8. The admitted facts are the petitioner was removed from service and the appeal filed by him to the Divisional Manager, Charminar, was also rejected and in the review petition, the Regional Manager, though found that the charges are proved and that the removal was justified, considering his long service and on compassionate grounds, set aside the order of removal from service and ordered reinstatement of the petitioner as Conductor Grade-II afresh with certain conditions. Therefore, from this it can clearly be inferred that the Regional Manager, found that the punishment of removal from service, was disproportionate to the charges proved against the petitioner and, therefore, ordered reinstatement afresh, as per the circular No.46/1996 dated 10.4.1996 issued by the Corporation. However, he imposed certain conditions. 9. Now the next question is whether the condition no.5, in the proceedings dated 18.1.2001 is justified or not. For better appreciation, the conditions incorporated in the proceedings dated 18.1.2001 of the 2nd respondent – Regional Manager are extracted as under: i. He shall be appointed as Conductor Grade.II fixing his pay at Rs.2320/- P.M. in the scale of Rs.2320-77-3398-90-4298-95-5058/- ii. He should pay fresh security deposit and produce valid conductor’s licence. iii. His seniority shall be reckoned from the date of his reporting at the unit posted, treating him as if appointed afresh. iv. He should pay back all dues viz., festival advance short remittance of bus cash and other amounts, if any, pending prior to the date of his removal from service and submit ‘No Due Certificate’ from DM/MSRD. v. He should give in writing that the above terms and conditions are acceptable to him. 10. The petitioner is aggrieved by the condition no.( v ) of the above proceedings. The petitioner submitted his willingness to joint duty and sought to reserve his right to claim for service benefits. Hence, it is necessary to examine the validity of condition no. ( v ). 11. As stated above, the Regional Manager, who is the reviewing authority, considered the review petition and ordered appointment afresh. Here it is necessary to consider the Regulations 8 and 29, which deal with penalties and the power of the reviewing authority to revise the punishments imposed by the disciplinary authority. The relevant portions of the said regulations are extracted as under for better appreciation. 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 tickets 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 person 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 or service 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 service of the Corporation which ordinarily disqualifies from future employment. . . . . . . . 29. Revision of orders in disciplinary cases: The authority higher than the authority to which an appeal against an order imposing any of the penalties specified in Regulation 8 of APSRTC Employees’ (CC&A) Regulations, 1967, lies, as specified by the Corporation by a resolution, may of its own motion or other-wise call for the records of the case in a disciplinary proceedings, revise any order in such a case and pass such orders as it deems fit, as if the employee had preferred an appeal against such order Provided that – i. . . . ii. . . . iii. . . . 12. From a reading of Regulation 29, the revisional authority i.e., the Regional Manager is empowered to revise the orders passed by the disciplinary authority imposing penalties specified in Regulation 8, and to pass such orders, as he deems fit. The petitioner in the present case aggrieved by the order dated 11.9.2000 passed by the Divisional Manager, Charminar, in rejecting his appeal, which is filed challenging his removal from service, he preferred a revision and the Regional Manager passed the order dated 18.1.2001 and as per the condition no.5, which is extracted above, the petitioner shall give an undertaking that the terms and conditions are acceptable to him. From a perusal of the penalties under Regulation 8 and also from a perusal of Regulation 29, there is no clause under which the revisional authority can ask the employee to furnish an undertaking that the terms and conditions of the order passed by him, giving appointment afresh, are acceptable to him. The revisional authority or the disciplinary authority can imposed punishments specified under the statute and while exercising their discretionary jurisdiction, cannot impose any condition which are not contemplated under the statute. A learned single Judge of this court in the decision reported in G.SAMBASIVA RAO v. A.P.S.R.T.C. (1 supra) held that the appellate authority is empowered to impose even a non-specified penalty in substitution of the specified penalty imposed by the disciplinary authority, provided the said penalty is one, which falls between the maximum and the minimum penalties enumerated in Regulation 8(1) of the Regulations. In the said case, the disciplinary authority, removed the petitioner therein who was a Conductor, from service, holding him guilty. In the appeal, the appellate authority while approving the finding of guilt as well as the punishment inflicted, ordered the reinstatement of the delinquent as a Conductor in the minimum scale of pay on compassionate grounds. This court held that it is not a modified punishment, but only a fresh appointment made on compassionate grounds. This court further held that the authority can pass composite order consisting of two parts, one part affirming the decision of the disciplinary authority and the other directing fresh appointment of the delinquent on compassionate grounds. However it held that the appellate authority can impose even a non-specified authority which shall be between the maximum and the minimum penalties enumerated in regulation 8(1). 13. In the present case, as already noted above, on compassionate grounds, the appellate authority ordered reinstatement and imposed certain conditions and among them conditions 1 to 4, which in my considered view, following the above judgment of the learned single Judge, though non-specified penalties, can be imposed because, as they fall between the maximum and the minimum penalties enumerated in Regulation 8(1). But condition no.5 does not fall within the ambit of maximum and the minimum penalties specified under the Regulation 8(1) and the condition is in the nature of taking away the statutory right of the employee from availing the remedy provided under the Industrial Disputes Act and it is also against the spirit of Section 23 of the Indian Contract Act. Therefore, in my considered view, imposing such a condition is arbitrary and in violation of the principles of natural justice and hence such a condition cannot be sustained. 14. Pursuant to the order passed by the 2nd respondent – Regional Manager dated 18.1.2001, the petitioner expressed his willingness through his representations dated 1.5.2001 and 2.7.2001 to join duty, but reserved his right to claim for service benefits, which is contrary to condition no.5 of the said order dated 18.1.2001. As noted above, since such a condition is found arbitrary, the willingness given by the petitioner reserving his right to claim for service benefits, is quite justified and cannot be found fault with. Therefore, the subsequent order dated 12.9.2001 canceling the proceedings issued by the 2nd respondent dated 18.1.2001, is illegal and is liable to be set aside and is accordingly set aside. 15. In the usual course, this court would have set aside the order of the 2nd respondent – Regional Manager dated 18.1.2001 and also would have remitted the matter. But in the present case, the proceedings of the 2nd respondent – Regional Manager are dated 18.1.2001 and the petitioner gave his willingness to joint duty through his representations dated 1.5.2001 and 2.7.2001 and subsequently, the proceedings of the Regional Manager dated 18.1.2001 were cancelled by another proceedings dated 12.9.2001, and the petitioner moved this court in the year 2002 and the matter came up for disposal in the year 2008 and the petitioner is now aged about 50 years i.e., nearing the age of superannuation. Further, as already noted above, the reviewing authority, on compassionate grounds, ordered fresh appointment and from the circumstances, this court inferred from the order of reinstatement passed by the 2nd respondent, that the punishment of removal is disproportionate to the charge proved. 16. Therefore, considering the above facts and circumstances, the respondent – Corporation is directed to reinstate the petitioner as per the conditions 1 to 4 as specified in the proceedings issued by the 2nd respondent – Regional Manager in Proc.No.PA/20(198)/2000-HCR dated 18.1.2001. Since this court found the condition no.5 in the proceedings dated 18.1.2001, as arbitrary and further this court has set aside the subsequent proceedings dated 12.9.2001 and as the petitioner has expressed his willingness to join duty by his representations dated 1.5.2001 and 2.7.2001, the petitioner is entitled to the continuity of service from the date of the proceedings issued by the 2nd respondent dated 18.1.2001 and for notional benefits and he is entitled to the actual pay, from the date of his joining. 17. The writ petition is accordingly allowed. No costs. AVS ----------------------------- 17—07—2008 Note: L.R. copy to be marked. B/O