THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.459 OF 2004 DATED FEBRUARY, 2010 BETWEEN S.Anantha Rao (E.No.38847) … Petitioner And A.P.S.R.T.C., Nizamabad Region, Nizamabad, Rep. by its Regional Manager. And Others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.459 OF 2004 ORDER: This is a peculiar case where the Andhra Pradesh State Road Transport Corporation (APSRTC) subjected its Enquiry Officer to disciplinary proceedings for submitting ‘an incorrect enquiry report’ on the ground that the said action constituted misconduct. The petitioner, an Assistant Manager in the service of the APSRTC, was appointed as the Enquiry Officer to conduct an enquiry into the alleged cash and ticket irregularities committed by a Conductor in the course of his duties on 20.11.2000. Two charges were framed against the said Conductor and by his Enquiry Report dated 29.01.2001, the petitioner found that out of the two charges, only one charge, viz. charge No.1, being the lesser charge, was duly proved. It is in connection with this report that the APSRTC subjected the petitioner to disciplinary proceedings under charge sheet dated 12.04.2001. The charge against the petitioner was as follows: “Charge: For having not gone into the complete details, though the sufficient material evidences available on record and given incorrect report duly not giving due importance to the witness passenger statement given on the spot and spot explanation of the delinquent, which constitutes misconduct in terms of Reg.28(xxxi) of APSRTC Employees (Conduct) Regulations, 1963.” The petitioner submitted his explanation dated 25.05.2001 denying the charge. However, by order dated 28.04.2003, the disciplinary authority, being the Divisional Manager, APSRTC, Karimnagar, held that the charge levelled against the petitioner was duly proved and imposed upon him the penalty of deferment of increment for a period of two years without effect on future increments. Aggrieved thereby, the petitioner submitted appeal-petition dated 25.06.2003 to the Appellate Authority, the Regional Manager, APSRTC, Karimnagar. However, as no action was taken thereupon, he filed the present writ petition. In its counter, the APSRTC stated that the petitioner, being the Enquiry Officer in the case, failed to record statements of witnesses in accordance with the procedure as passengers were examined in the absence of the TTIs. The APSRTC also strove to establish that the findings recorded by the petitioner in his Enquiry Report were factually incorrect, thereby trying to demonstrate that the petitioner had not gone into the complete details and had given an incorrect report, taking into account statements made by the passengers recorded in the absence of the TTIs. It is further stated in the counter that the petitioner had admitted in his explanation that such statements had been recorded in the absence of the TTIs due to pressure and that the same indicated the carelessness of the petitioner towards the job. The APSRTC therefore sought to justify the punishment imposed upon the petitioner. As regards the appeal, it is stated that the petitioner’s appeal was forwarded to the wrong authority, being the Regional Manager, APSRTC, Nizamabad Region, and that the writ petition was not maintainable, owing to the pendency of the said appeal. Sri K.Vasudeva Reddy, learned counsel for the petitioner, submitted that his client, having been appointed as a fact finding authority, was required to act independently and without bias and having done so, he could not be subjected to disciplinary proceedings merely because his findings were not to the liking of the APSRTC. The learned counsel stated that his client had been conducting enquiries for over two years and was well versed with the established procedure to be followed in such enquiries. The learned counsel further submitted that owing to the imposition of the penalty, his client was deprived of his rightful promotion to the post of Depot Manager. Refuting the above contentions, Sri C.Sunil Kumar Reddy, learned standing counsel for the APSRTC, pointed out that the charge sheet dated 12.04.2001 spoke of the lapses on the part of the petitioner in recording the evidence of the passengers and sought to justify the disciplinary action taken by the APSRTC against the petitioner. The learned counsel stated that no employee of the APSRTC was above the applicable Regulations and therefore, the petitioner, having committed misconduct in terms of such Regulations, was liable for appropriate disciplinary action. The learned counsel further submitted that as the appeal filed by the petitioner had not been disposed of, a suitable direction can be issued to the Appellate Authority to pass orders thereupon. As regards the pendency of the appeal, it is relevant to notice that the copy of the appeal-petition dated 25.06.2003 placed on record indicates that it was addressed to the proper Appellate Authority as stipulated in the penalty order dated 28.04.2003. It is the stand of the APSRTC that the said appeal was forwarded to the Regional Manager, APSRTC, Nizamabad Region, instead. However, the fact remains that in spite of there being no interim orders of stay in this case, the said appeal has not been disposed of on merits till now. In such circumstances, I am not persuaded to dispose of the writ petition by directing the Appellate Authority to pass orders. The matter, having been kept pending on the file of this Court for six years, is amenable to disposal on its own merits and the adjudication need not be stalled on the ground of the alternative remedy. The misconduct charged against the petitioner is under Regulation 28(xxxi) of the APSRTC Employees (Conduct) Regulations, 1963 (for brevity, ‘the Regulations of 1963’), which reads as under: “28. General Provisions: Without prejudice to the generality of the foregoing regulations, the following acts or omissions shall be treated as misconduct:- xxxi) any other act not specifically mentioned above but which i s prima facie detrimental to the interests of the Corporation;” It is not the case of the APSRTC that the petitioner submitted an incorrect Enquiry Report for extraneous considerations or for a mala fide purpose. The charge framed against the petitioner reads to the effect that he did not go through the complete details of the case and did not consider the material evidence on record, including the statements of the witnesses recorded on the spot. This lapse on the part of the petitioner, according to the APSRTC, constitutes misconduct under the aforestated Regulation 28(xxxi). Though the charge sheet dated 12.04.2001 also mentioned the failure of the petitioner to record the passengers’ statements in the presence of the TTIs, the same did not form part of the actual charge. The petitioner in his explanation justified the same by stating that the TTIs were not attending the enquiry unless 3 to 5 call letters were issued to them. He further stated that the passengers’ statements recorded by him in the absence of the TTIs were not given any weightage or credibility in his Enquiry Report and therefore, such statements could not be held against him. Relevant to note, the petitioner did not state anywhere in his explanation that he had recorded the said statements owing to pressure, as put forth by the APSRTC in its counter affidavit. In any event, when this alleged procedural lapse of the petitioner was not the subject matter of the actual charge, I am not inclined to accept the plea of the learned counsel for the APSRTC that such a lapse justified the disciplinary action taken against the petitioner. The charge as framed reflects only upon the ‘ability’ of the petitioner to examine the material placed before him and consider the evidence of witnesses, in the process of submitting his findings upon the charges framed against the delinquent employee. The lack of ability on the part of the petitioner in coming to a correct finding on the basis of the material and evidence placed before him, even if established, cannot constitute misconduct under Regulation 28(xxxi). The APSRTC being the disciplinary authority is always at liberty to disagree with the findings of the Enquiry Officer and take suitable action against a delinquent employee. That being so, merely because the findings submitted by the Enquiry Officer are not to its liking, it is not open to the APSRTC to allege that lack of ability of the Enquiry Officer, which led to such findings, constitutes an act which i s prima facie detrimental to its interests so as to attract Regulation 28(xxxi). The petitioner, though an employee of the APSRTC, in the status of an Enquiry Officer is an impartial and independent fact finding authority and his bona fide acts and actions in such capacity would not fall within the ambit of the Conduct Regulations of 1963. The independence and impartiality of the office of an Enquiry Officer would be at risk if the APSRTC is given the liberty to indict Enquiry Officers whenever they submit adverse Enquiry Reports. An Enquiry Officer, who submits a report, without being guided by extraneous or mala fide considerations and on the basis of his understanding of the material placed before him, cannot be subjected to disciplinary proceedings on the ground that his ‘perceived’ lack of ability constitutes misconduct. The action of the APSRTC in doing so is per se illegal and opposed to the very fundamentals of jurisprudence. The penalty imposed upon the petitioner under the impugned order dated 28.04.2003 is therefore illegal and unsustainable and is accordingly set aside. The petitioner shall be entitled to all consequential benefits. The writ petition is allowed with costs of Rs.5,000/- (Rupees five thousand). ____________________ SANJAY KUMAR, J. ___________February, 2010. VGSR