THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.637 OF 2004 DATED DECEMBER, 2009 BETWEEN N.Yadagiri … Petitioner and APSRTC, Reptd. by its Divisional Manager, Sangareddy, Medak District. And Others … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.637 OF 2004 ORDER: The petitioner, a Driver in the Andhra Pradesh State Road Transport Corporation (APSRTC), was visited with the punishment of reduction of his pay by two incremental stages for a period of two years with cumulative effect on future increments by the proceedings dated 05.05.2003, confirmed in appeal by the proceedings dated 24.10.2003. He assails the said proceedings in this writ petition and seeks a consequential direction to the APSRTC to restore the deferred increments along with consequential benefits, duly treating the suspension period as ‘on duty with wages’. The petitioner entered in the service of the APSRTC as a Driver on 02.01.1992 and his services as such were regularized with effect from 07.01.1993. He was subjected to disciplinary proceedings under charge sheet dated 02.08.2002 on the following charges: “Charge No.1 For having failed to show your Driving Licence and KMPL Book to the Checking Officials and used Vulgar language in telugu “RTO Vaalle Nannu Adugaru, Meerevaru Adugataaniki, Meereme Nannu Peekaleru” with (TTIs) your superiors, which amounts to misconduct under Regulation No.28(vi)(a) of APSRTC Employees (Conduct) Regulations 1963. Charge No.2 For having failed to receive the charge memo and also refused to acknowledge the same and to give explanation to the charge memo saying in telugu with passengers that “Vaallu (TTIs) Raasina Kaagitham Chinchivestene Bassu kaduledi”, which shows clearly your Insubordination towards with Superiors and amounts to misconduct in terms of Regulation 28(vi)(a) of APSRTC Employees (Conduct) Regulations 1963.” The petitioner submitted his explanation on 09.08.2002 stating that he had been working on overtime and informed the TTIs that his driving licence was kept in the depot and would be produced thereafter. However, the TTIs scolded him in filthy language. He also relied upon the complaint dated 14.07.2002 lodged by the passengers against the action of the TTIs in this regard and assailed the action of the APSRTC in charge-sheeting him instead of taking action against the TTIs. The petitioner attacks the enquiry proceedings conducted thereafter on the ground that the passengers who had lodged the complaint dated 14.07.2002 against the TTIs were not called for examination. The petitioner further complains that he was not given a copy of the enquiry report and straight away, the APSRTC issued charge sheet dated 14.12.2002 calling upon him to explain as to why his pay should not be reduced by two incremental stages with cumulative effect and as to why his suspension period should not be treated as ‘not on duty’. In his explanation dated 01.02.2003, the petitioner specifically raised the aspect of non-furnishing of the enquiry report in spite of his requests and stated that he was facing much hardship in submitting his explanation due to the same. He also pointed out that the Conductor had deposed that he had not misbehaved with the TTIs as alleged and that the passengers, who had submitted a written complaint, were not examined. He therefore requested the disciplinary authority to drop all further action in the matter. Thereupon, the disciplinary authority, being the Depot Manager of the APSRTC, Dubbak Depot, passed the proceedings dated 05.05.2003 ordering that the petitioner’s pay be reduced by two incremental stages for a period of two years with cumulative effect on his future increments and directing his suspension period to be treated as ‘not on duty’. The petitioner’s appeal against the same resulted in its rejection by order dated 24.10.2003. Hence, this writ petition. Sri V.Narasimha Goud, learned counsel for the petitioner, assailed the punishment imposed upon his client vide the aforestated proceedings on various grounds. He contended that there was a blatant violation of the principles of natural justice as the APSRTC had denied his client a proper and reasonable opportunity of defending himself in as much as the enquiry report was not furnished to him in spite of his repeated requests. He pointed out that the prejudice caused to his client in this regard is patent and manifest, given the facts of the case. The learned counsel submitted that as many as seven passengers had made a written complaint on 14.07.2002 against the TTIs, certifying that the petitioner had not misbehaved with the TTIs as alleged. Similarly, the Conductor, who was an eyewitness to the incident, also deposed during the enquiry proceedings that the petitioner had not misbehaved with the TTIs. In spite of the same, the Enquiry Officer appears to have held against the petitioner and therefore the enquiry report incriminating him, overlooking the above evidence, was crucial for the petitioner to submit a proper explanation to the Show Cause Notice dated 14.12.20002. The non-furnishing of the report therefore caused grave prejudice to his client’s interest. The learned counsel also urged that the punishment imposed was unsustainable in as much as the charges levelled against his client were under the wrong regulation, viz., Regulation 28(vi)(a) of the APSRTC Employees (Conduct) Regulations, 1963. The learned counsel pointed out that the said Regulation had no application to Drivers and only spoke of Conductors. As the charge sheet dated 02.08.2002 referred to this Regulation alone for alleging misconduct on the part of the petitioner, the learned counsel submitted that the punishment imposed on the basis of such defective charges could not be sustained. The third ground urged by the learned counsel is that the Show Cause Notice dated 14.12.2002 proposed the lesser punishment of reduction of pay by two incremental stages with cumulative effect whereas the punishment actually imposed by order dated 05.05.2003 went beyond the Show Cause Notice and imposed the higher punishment of reduction of pay by two incremental stages for a period of two years with cumulative effect on future increments. The learned counsel submitted that once the punishment was proposed in the Show Cause Notice, the disciplinary authority could, at best, have reduced such punishment but could not have enhanced it further. On these grounds, the learned counsel submitted that the impugned proceedings are liable to be set aside. No counter affidavit is filed by the APSRTC. The learned standing counsel for the APSRTC however contended that the scope of interference by this Court in exercise of jurisdiction under Article 226 of the Constitution is limited and that the petitioner had failed to demonstrate actual prejudice by the non-furnishing of the enquiry proceedings. He further submitted that though the wrong Regulation was quoted, it could not be doubted that the APSRTC had the power to impose suitable punishment upon the petitioner under other relevant Regulations. He therefore prayed for dismissal of the writ petition. Sri V.Narasimha Goud, learned counsel, placed reliance upon the Judgment of the Supreme Court in STATE OF UTTARANCHAL v. KHARAK SINGH[1]. Therein, the Supreme Court referred to its earlier Judgment in ECIL v. B.KARUNAKAR[2] wherein it was held that the delinquent employee has a right to receive a copy of the Enquiry Officer’s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee. This right was held to be a part of the employee’s right to defend himself against the charges levelled against him and the denial of the Enquiry Officer’s report was stated to be denial of reasonable opportunity to the employee to prove his innocence and constituted a breach of principles of natural justice. The Supreme Court also referred to its later Judgment in SYNDICATE BANK v. VENKATESH GURURAO KURATI[3], wherein it was held that the delinquent officer must establish that non- supply of documents relied upon by the Enquiry Officer prejudiced his case. The Court further held that the principles of natural justice are not embodied rules and could not be put in a straightjacket formula; and to sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him by the non- observance of such principles. It is therefore clear that it is incumbent upon the delinquent employee to assert and prove prejudice and that mere non-furnishing of the enquiry report, by itself, would not be sufficient to vitiate the disciplinary proceedings. In the present case given the fact that as many as seven passengers had submitted a written complaint supporting the petitioner and indicting the TTIs and also the fact that the Conductor had supported the petitioner by stating that he had not misbehaved with the TTIs, it was necessary for the petitioner to know as to how the Enquiry Officer had dealt with the said evidence and had yet come to the conclusion that the misconduct levelled against him was proved. Without this information, he could not have submitted a proper explanation to the Show Cause Notice proposing punishment. The prejudice caused to the petitioner by the non-furnishing of the enquiry report is therefore established. With regard to the second contention involving the quoting of the wrong provision, Sri V.Narasimha Goud, learned counsel, placed reliance on the Judgment of a learned Judge of this Court in M.L.L. KUMAR v. THE DIVISIONAL MANAGER, A.P.S.R.T.C. CUDDAPAH[4]. The observations of the learned Judge in this regard are apposite: “8. …………….. The principle that wrong provision being quoted does not vitiate any order or proceeding is applicable in exercise of powers and jurisdiction by a Court, Tribunal or administrative authority so long as the power otherwise exists, in other words, the mere mention of wrong provision does not vitiate the proceeding or order. The said principle is not, in my opinion, applicable to question of fact. It may be applicable to questions of exercise of power and jurisdiction but does not apply to allegations of fact. If a wrong misconduct is quoted while adverting to a particular set of facts, it is no answer to say that the matter comes within another type of enumerated misconduct. Therefore, it must be held that the charges are defective.” In the present case, it is manifest that the misconduct alleged against the petitioner under both the charges is relatable to Regulation 28(vi)(a) of the APSRTC Employees (Conduct) Regulations, 1963. Regulation 28(vi)(a) reads as under: “vi) a) “Failure on the part of the Conductor/Booking Clerk to issue valid passengers/luggage ticket, in accordance with the order passed by the Corporation or any other authority under the Corporation, from time to time, before starting or allowing a bus to be started from the point, where such passenger/luggage, boarded or loaded as the case may be in respect of mofussil services, and before passing a Ticket Issue Completion Point, fixed from time to time in respect of City/Town Services”;” The said Regulation has no relation to any acts or omissions on the part of Drivers and speaks only of Conductors/Booking Clerks. The said Regulation therefore does not have any application to the petitioner. The charges levelled against the petitioner being under the inapplicable Regulation were defective in their inception and the attack mounted by the learned counsel in this regard is well founded. Thirdly, it is pertinent to note that the Show Cause Notice dated 14.12.2002 proposed a particular punishment whereas the punishment order dated 05.05.2003 exceeded the said proposed punishment. It is submitted by the learned counsel, Sri V.Narasimha Goud, that the effect of such enhancement of punishment would mean that the petitioner would be deprived of his increments for two additional years. The learned standing counsel for the APSRTC does not refute this. Once the disciplinary authority proposed a particular punishment in the Show Cause Notice, it is open to such authority to impose the said punishment or reduce it. There is no justification for the said authority to impose a higher punishment, unless specifically permitted by the rules. On this ground also, the impugned punishment suffers. For all the aforestated reasons, the punishment imposed upon the petitioner by the proceedings dated 05.05.2003, confirmed in appeal without any active application of mind by the proceedings dated 24.10.2003, are liable to be set aside and are accordingly set aside. The Writ Petition is allowed directing the APSRTC to restore all consequential benefits to the petitioner. In the circumstances, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. __________ December, 2009. VGSR [1] (2008) 2 SCC (L&S) 698 [2] (1993) 4 SCC 727 [3] (2006) 3 SCC 150 [4] 1990 (II) L.L.J. 23