(Prayer: Writ Petition is filed under Article 226 of the Constitution of India, to issue a writ of declaration, to declare the action of the respondents in placing the petitioner under suspension from 08.10.2018 to 02.11.2018 and making recovery of a sum of Rs.24,363/- toward the fare value of the tickets which were lost due to theft on 06.10.2018 and consequently direct the respondents to treat the period from 08.10.2018 to 02.11.2018 as duty with pay for all purposes and to refund the amount of Rs.6,091/- which was deducted from his December 2018 month salary and not to make any further recovery towards fare value of the tickets lost due to the theft on 06.10.2018, award costs and thus render justice.)

 1. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents and perused the record.

2. The case of the petitioner, in brief, is that while working as a Conductor, the 2nd respondent placed him under suspension by order dated 15.10.2018 for having lost the ticket issuing machine and ticket books on 06.10.2018; and that on submitting representation on 30.10.2018, the 1st respondent revoked his suspension on 02.11.2018.

                  2.1. It is the further case of the petitioner that while discharging his duties on 06.10.2018, he had kept the ticket issuing machine and the ticket books / bundle on the dashboard of the bus in which he was assigned to perform his duties as Conductor; that at about 10.50 a.m., he went to the time office to record the departure from the Tiruvanmiyur bus stand; that after returning to the bus, he noticed that somebody had stolen the ticket issuing machine and the ticket books / bundle; and that he immediately reported the aforesaid incident to the Branch Manager and also made a complaint with the Tiruvanmiyur Police Station on 06.10.2018, for which the concerned authorities issued a CSR receipt on 07.10.2018.

                  2.2. It is the further case of the petitioner that the ticket issuing machine, which was stolen from the bus when the petitioner had disembarked to report the departure time at the time office, was recovered subsequently on 21.11.2018; and that despite having recovered the lost property, the respondents have deducted a sum of Rs.6,091/- from his salary payable for the month of December 2018 as the first instalment and the balance amount to be recovered is shown as Rs.18,272/-, in three equal instalments.

                  2.3. The petitioner contends that as per the settlement arrived at under Section 12(3) of the Industrial Dispute Act in the year 1995 no recovery shall be made from Conductors when the ticket books are lost due to accident, theft or robbery, provided a complaint is given to the police in this regard; that since, he had lodged a complaint with the police immediately regarding the aforesaid items i.e., the ticket issuing machine and the ticket books, being stolen, the respondents could not and ought not to have recovered the amount of Rs.6,091/- from his salary for the month of December 2018 and also could not have propose to recover the balance amount of Rs.18,263/- in three equal instalments, in all totalling Rs.24,363/-.

                  2.4. The petitioner further contended that the action of the respondents in seeking to recover the aforesaid amount without issuing any notice to the petitioner and without conducting any enquiry is in violation of the principles of natural justice. Contending as above, the petitioner seeks for a declaration that the period of suspension be treated as duty with pay for all purposes and that amounts deducted from his salary be refunded.

3. Counter affidavit on behalf of the respondents is filed.

4. The respondents, in their counter affidavit, contended that upon the petitioner reporting the loss of ticket issuing machine and the ticket bundle to the Branch Manager on 06.10.2018, after completing four single trips and while preparing to undertake fifth single trip from the Tiruvanmiyur bus stand at 10.50 a.m., they initiated action and placed him under suspension on 15.10.2018; and that by considering the representation submitted by the petitioner on 30.10.2018, his suspension was revoked on 02.11.2018 and permitted him to rejoin duty on 03.11.2018.

                  4.1. The respondents further contended in the counter affidavit that the act of petitioner placing the ticket issuing machine and the ticket bundle on the dashboard of the bus bearing No.TN 01 N 5483 on Route No.91/K and leaving them unattended demonstrates negligence on his part; that the petitioner did not adhere to the prescribed procedure for safeguarding the machine during duty hours, thereby clearly demonstrating a breach of discipline and disregard for his duty.

                  4.2. The respondents, in their counter affidavit, further contended that the aforesaid act of the petitioner, as per the standing orders, constitutes misconduct and is a direct consequence of the employee’s negligence. The respondents thus contended that the petitioner cannot escape liability for such negligence, merely on the ground that he had filed a complaint and that an FIR had been registered by the police authorities.

                  4.3. The respondents further contended in the counter affidavit that the recovery of the ticket issuing machine does not lessen the seriousness of the petitioner’s misconduct, as the incident had occurred due to his negligence, carelessness and failure to exercise due diligence and caution in the discharge of his duties. Contending as above, the respondents seek for dismissal of the writ petition.

5. I have taken note of the respective contentions.

6. Though the respondents placed the petitioner under suspension initially on 15.10.2018 in respect of the incident that took place on 06.10.2018, i.e., the petitioner having lost the ticket issuing machine and the ticket book / bundle, the respondents revoked the said suspension on 02.11.2018 and allowed the petitioner to join duty from 03.11.2018. The respondents having allowed the petitioner to rejoin duty by revoking the suspension order, if intended to take any further action on the alleged misconduct or negligence, ought to have initiated necessary disciplinary proceedings by issuing a notice to the petitioner.

7. Admittedly, the respondents did not initiate any such action. However, the respondents on their own, decided to recover an amount of Rs.24,363/- being the loss allegedly suffered by them on account of negligence and misconduct on the part of the petitioner in safeguarding the property of the respondents entrusted to him. The respondents while concluding that they had incurred a loss of Rs.24,363/- and that the same was to be recovered from the petitioner, did not provide any basis or material for the petitioner to know whether the said amount sought to be recovered pertained to the cost of the ticket book issued to him or includes the cost of the ticket issuing machine. Further, as the ticket issuing machine, which was lost on 06.10.2018, was recovered on 21.11.2018, the cost of such lost and found goods cannot be recovered from the petitioner.

8. Since, the respondents have unilaterally decided the quantum of the amount to be recovered from the petitioner in respect of the incident of losing the ticket issuing machine and the ticket bundle / book entrusted to him, the least that was expected of the respondents, is to issue a notice to the petitioner seeking an explanation as to why the said amount should not be recovered from him and also to provide the basis for arriving at such amount. Inasmuch as no notice has been issued to the petitioner before undertaking the deduction of the amount as determined by the respondents, claiming the same as alleged loss suffered by them and having resorted to deduction of the said amount from the petitioner’s salary, taking advantage of their position as employer, this Court is of the view that the said action cannot be countenanced.

9. Accordingly, the action of the respondents in seeking to recover the alleged loss suffered by them from the salary of the petitioner without issuing notice cannot be sustained and therefore, the action of the respondents is declared arbitrary and illegal and the petitioner is entitled to refund of amount deducted from his salary.

10. However, it is made clear that in the event, the respondents intend to initiate any action against the petitioner, they shall do so only after putting the petitioner on notice and taking further action in terms of the certified standing orders of the respondents.

11. Subject to above observations and directions, this Writ Petition is disposed of. Consequently, connected miscellaneous petition is closed. No costs.