HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No. 6447 OF 2005 Dated 23rd October, 2009-10-28 Between K. Ramanjaneyulu ….petitioner And The Depot Manager,APSRTC, Kadiri Depot, and ors. …Respondents HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No. 6447 OF 2005 ORDER: The petitioner, a driver in the service of the Andhra Pradesh State Road Transport Corporation (for brevity, ‘APSRTC’) challenges the proceedings dated 17.05.2003 passed by the Depot Manager, Kadiri Depot of the APSRTC removing him from service, which was confirmed in appeal by the order dated 30.06.2003 of the Divisional Manager, APSRTC, Hindupur Division and further confirmed in review by the order dated 12.12.2003 passed by the Regional Manager, APSRTC, Ananthapur Region. The petitioner was appointed as a driver in the service of the APSRTC in the year 1988. He was subjected to disciplinary proceedings under charge sheet dated 17.10.2002 for irregular attendance during October 2001 and August 2002. The enquiry officer submitted his report holding that the charge levelled against the petitioner was proved beyond reasonable doubt. Thereupon, the disciplinary authority, viz., the Depot Manager, Kadiri Depot of the APSRTC passed the impugned order dated 17.05.2003 removing the petitioner from service with immediate effect. It is relevant to note that in the body of the said order, the disciplinary authority did not confine himself to the substance of the charge levelled against the petitioner but also spoke of the subsequent absence of the petitioner between 08.03.2003 and 14.03.2003, 29.03.2003 and 31.03.2003 and also between 13.05.2003 and 16.05.2003. The disciplinary authority stated that keeping such an unprofitable employee on the muster rolls of the Corporation does not serve any purpose and accordingly imposed the punishment of removal of service. The said order was confirmed in appeal and thereafter in review. Aggrieved thereby, the petitioner approached this Court by way of the present writ petition. In the counter affidavit filed on behalf of the APSRTC, its authorized Law Officer stated that the writ petition is not maintainable as the petitioner, being a workman within the meaning of the Industrial Disputes Act, 1947 (for brevity ‘the Act of 1947’), ought to have approached the concerned Labour Court and could not seek adjudication of the matter, involving questions of fact, by this Court in exercise of its jurisdiction under Article 226 of the Constitution. The learned Counsel for the petitioner assailed the disciplinary action taken by the APSRTC against the petitioner on a short ground. It is his contention that the disciplinary authority ought not to have exceeded the subject matter of the charge levelled against the petitioner and therefore, the order dated 17.05.2003 passed by the disciplinary authority taking into account the alleged subsequent absence of the petitioner without subjecting him to an enquiry in that regard, was unsustainable in law. He placed reliance on an un- reported judgment dated 05.04.2005 of a Division Bench of this Court in M.Murali Krishna Vs. APSRTC, Musheerabad, Hyderabad (Writ Appeal No. 769 of 2005). That case was similar to the case on hand on facts. The Division Bench disagreed with the opinion expressed by the learned single Judge that the mere mentioning of the subsequent absence of an employee in the order of punishment, which was not the subject matter of the charge sheet, would not amount to violation of the principles of natural justice. The Bench was of the opinion that once the charge is confined to a particular period, the disciplinary proceedings based on a subsequent absence which was not the subject matter of the enquiry, would be beyond the scope of the charge sheet and could not be sustained in law. The Bench specifically stated that the proceedings imposing punishment, taking into consideration the unauthorized absence for the subsequent period for which no charge or enquiry is initiated, results in depriving the employee of an opportunity to defend himself and amounts to arbitrariness. Smt. W.V.S. Rajeswari, learned Counsel for the APSRTC, attacked the maintainability of the Writ Petition on the ground that the petitioner had an alternative and efficacious remedy before the Labour Court by way of filing an application under Section 2-A(2) of the Act of 1947. The availability of an alternative remedy is not a straitjacketed embargo which would bar the exercise of jurisdiction under Article 226 of the Constitution even in deserving cases. In the present case, the record manifests that the disciplinary action taken against the petitioner was in violation of the principles of natural justice, as it was based not merely on the subject matter of the enquiry and the charge sheet, but also on the subsequent unauthorized absence of the petitioner. The petitioner was not put on notice of the same by way of a charge sheet and was not subjected to an enquiry to prove the same. In the light of this transgression of the legal procedure, the petitioner is justified in approaching this Court by invoking its extraordinary jurisdiction under Article 226 of the Constitution and it is not necessary that he should be driven to the alternative remedy of approaching the Labour Court. The contention of the learned Counsel for the APSRTC is therefore liable to be rejected. Insofar as the merits of the case are concerned, the principle laid down by the Division Bench aforestated clearly applies and the action of the disciplinary authority in the present case, which stands on the same factual footing as in the case before the Division Bench, cannot be sustained. In view of the disciplinary authority having taken into consideration misconduct other than that which was the subject matter of the charge sheet and enquiry, the order of removal passed against the petitioner cannot stand. The Writ Petition is therefore allowed setting aside the order dated 17.05.2003 removing the petitioner from service and also the subsequent orders dated 30.06.2003 and 12.12.2003 confirming the same in appeal and thereafter in review respectively. The learned Counsel for the petitioner fairly conceded that he is not pressing the claim for back-wages for the period that the petitioner remained out of service and rightly so. In view of the same, the APSRTC is directed to reinstate the petitioner in service with continuity of service, but without backwages and arrears of monetary benefits. The period that the petitioner remained out of service shall however be taken into account for pensionary and other attendant benefits. In the circumstances of the case, there shall be no order as to costs. -------------------------- JUSTICE SANJAY KUMAR DATE: 23-10-2009. Msnr.