(Prayer: Writ Appeal under clause 15 of the Letters Patent Appeal preferred against the order dt. 27.01.2016 passed in WP.No. 5810 of 2010)

IA NO: 1 OF 2016(WAMP 802 OF 2016

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased stay the operation of the judgment of the learned Single Judge passed in W.P.No.5810 of 2010 dated 27.1.2016 pending disposal of the Writ Appeal and pass

IA NO: 2 OF 2016(WAMP 1665 OF 2016

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased vacate the interim orders in WAMP No. 802 of 2016 in WA No. 254 of 2016 dt. 10.06.2016 and consequentially dismiss the writ appeal

IA NO: 3 OF 2016(WAMP 57104 OF 2016

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased)

A. Hari Haranadha Sarma, J.

Introductory:

1. This Writ Appeal is directed against the orders dated 27.01.2016 passed by a learned Single Judge of this Court in W.P.No.5810 of 2010.

2. Respondent No.1 is the writ petitioner. Respondent No.2 is the proforma party and respondent No.1 before the learned Single Judge. Appellants are respondent Nos.2 to 4 in the writ proceedings.

3. For the sake of convenience, the parties will be hereinafter referred to as the writ petitioner and the respondents, as and when necessary.

4. The charge against the writ petitioner is that he unauthorisedly allowed a known person to drive the Service Bus bearing No.AP 11 Z 3207 on 10.09.2006, which constitutes misconduct under Regulation 28(ii) of the A.P.S.R.T.C. Employees (Conduct) Regulations, 1963.

5. The charge sheet was served by the Depot Manager, Gokavaram / respondent No.2 on the writ petitioner and based on the enquiry report dated 18.12.2006, removal order dated 23.01.2007 was issued by respondent No.2.

6. The remedies of appeal and review were not helpful to the writ petitioner and he raised an Industrial Dispute vide I.D.No.89 of 2007 before the Industrial Tribunal-cum-Labour Court, Visakhapatnam, which suffered dismissal. Questioning the sustainability of the award passed by respondent No.1 Tribunal, the writ petition was filed and the learned Single Judge allowed the writ petition, declaring that the writ petitioner is entitled for all monetary benefits, including backwages and all other attendant benefits.

Appeal:

7. Aggrieved by the orders passed by the learned Single Judge, the present appeal is filed contending that the learned Single Judge ought not to have interfered with the concurrent findings of the disciplinary authority and the Industrial Tribunal.

Grounds urged in the Appeal:

8(i). The scope of a writ petition under Article 226 of the Constitution of India is very limited. Appreciation of evidence or substitution of punishment is not possible, particularly when the orders of the Industrial Tribunal are reasonable and when the domestic enquiry was found to be valid by the Industrial Tribunal.

                  (ii). There is admitted misconduct on the part of the writ petitioner in the writ petition and before the enquiry officer. As per the Regulation 28(ii) of the A.P.S.R.T.C. Employees (Conduct) Regulations, 1963 (for short “1963 Regulations”), driving vehicles of the Corporation without possessing a prior licence or without being authorised in writing to do so or allowing any other person to act in such manner, constitutes an act of „misconduct‟.

                  (iii). It is a matter of fact that the writ petitioner allowed an unauthorised person to drive and operate the bus. In such context, the findings of the learned Single Judge otherwise are not correct.

Hearing:

9. Heard both sides extensively. Perused the material available on record.

Points:

10. The points that arise for determination in this appeal are:

                  1) Whether the charge against the writ petitioner that there was misconduct as contemplated under service regulations was properly appreciated by the disciplinary authority and the Industrial Tribunal in accordance with law and evidence?

                  2) Whether the orders of the learned Single Judge in allowing the writ petition and setting aside the award of the Industrial Tribunal-cum- Labour Court, Visakhapatnam in I.D.No.89 of 2007 are proper and require any interference?

                  3) What is the result of the appeal?

Point Nos.1 and 2:

11. As per the charge sheet, the charge reads as follows:

                  “For having unauthorizedly allowed an known person to drive your service Bus AP 11 Z 3207 from Kunavaram to Bhadrachalam while you were performing duty as Driver of 14.45 hrs. Bhadrachalam N/o Service with vehicle No.AP 11 Z 3207 on 10.09.2006 which constitutes misconduct under Reg.28(ii) of A.P.S.R.T.C. Employees (conduct) Regulations, 1963.”

Allegations:

12(i). Petitioner was the driver on duty for the vehicle AP 11 Z 3207 on 10.09.2016, scheduled to travel from Kunavarm to Bhadrachalam. As per the charge memo, the conductor of the bus made a complaint and a preliminary enquiry was conducted by the Deputy Superintendent, Gokavaram, wherein the conductor stated that he observed the bus moving in a zig-zag manner and stopped the driver. After some time, though the conductor objected, the driver allowed an outsider, who was said to be the person taught driving to the driver (writ petitioner), to drive the bus from Kunavaram to Bhadrachalam.

                  (ii). Whereas, during the preliminary enquiry, the writ petitioner / driver is said to have stated that the person who taught driving was already sitting on the driver‟s seat and asked for allowing him to drive and accordingly he was allowed. But, in the domestic enquiry, he stated differently.

                  (iii). The writ petitioner, being the driver of the RTC vehicle, allowing an unauthorised person to drive the vehicle is a grave misconduct.

The contention of the writ petitioner:

13(i). He was suffering from ill health. He made a request to depot authorities to grant leave, but, the depot authorities refused to grant leave stating that there was no spare driver. Having no other option, he started to duty.

                  (ii). At Kunavaram stage, one of the passengers requested to stop the bus for tea and accordingly, the bus was stopped.

                  (iii). He consumed medicine for his ill health and started the bus, but after some time there was giddiness and he was not in a position to drive the vehicle and he stopped it. Passengers brought pressure, after halting for half an hour for rest. Children and ladies were travelling in the bus. It was almost midnight and the road was a ghat road.

                  (iv). The driving coach of the writ petitioner was there in the bus. There was pressure from the passengers. Therefore, the said coach drove the bus to the destination. Keeping in view the safety of the passengers etc., the writ petitioner allowed his coach to drive the vehicle.

Case of respondent Nos.2 to 4 / appellants / APSRTC:

14(i). The conductor noticed that the bus was moving in a zig-zag manner and asked the driver to stop the bus and the driver allowed an outsider to drive the vehicle.

                  (ii). During the preliminary enquiry, the writ petitioner stated that he had allowed his guru to drive the vehicle, but during the domestic enquiry he stated differently about sickness and pressure of passengers.

                  (iii). Allowing an unauthorised person to drive the bus is a serious misconduct.

Analysis, reasoning and findings:

15. As per the proceedings of the Depot Manager, Gokavaram, Respondent No.2 / appellant No.1, the subject is mentioned as allowing an unauthorised person to drive the vehicle in question by Service Driver D.R. Raju and conducted by B. Balayogi, conductor, while performing duty.

16. The introductory part of the proceedings provides that the service conductor has also concealed the facts to depot Authorities about allowing an unauthorized person to drive the vehicle, which is a serious offence on the part of the driver and the conductor and that the driver was placed under suspension.

17. Further it is stated that even though the seven days‟ time was stipulated to the driver / writ petitioner, he failed to submit his explanation and hence a detailed enquiry was ordered. The said report suggests that there was an oral complaint that the writ petitioner consumed liquor while on duty and drove the vehicle in a zig-zag manner and stopped the bus for relaxing / rest on 10.09.2006 at about 22:00 hours. After 15 minutes, he was asked to drive the bus, but he informed that he was not feeling well. Later, a person known to the driver / writ petitioner drove the vehicle from Kunavaram to Bhadrachalam. The said person is Suryanarayana of Bhadrachalam, who was the driving instructor of the driver. The report also shows that the conductor S. Balayogi, stated that the service driver and some passengers in the bus got down for tea. Later, when bus was started, nearly ten passengers were in the bus. The conductor noticed that the bus was moving in a zig-zag manner and asked the driver to stop the bus. The driver informed that due to ill health he was not in a position to drive the vehicle properly. Bus was stopped for 20 minutes. There were ladies and children in the bus. There was no possibility to send them to Bhadrachalam by other means. There was no possibility to inform the matter either to Gokavaram depot authorities or Bhadrachalam depot Authorities. The service driver made ready for driving the bus with a person in the bus who was known to him because he knew driving. The conductor objected, but the passengers in the bus pressed him. Therefore, the said person was allowed to drive the bus.

18. From the enquiry report, three possibilities are appearing:

                  (i) The driver of the bus / writ petitioner consumed liquor and was unable to drive. For this there is no evidence. So this can be ignored.

                  (ii). The person who taught driving to the writ petitioner had already sat in the driver‟s seat and was allowed to drive the vehicle by the writ petitioner / driver. Why he was allowed to drive the vehicle without there being any necessity is not explained. Therefore, this theory is doubtful.

                  (iii). The writ petitioner was not in a position to drive the vehicle for the reason of ill health, which is his version and stopped the vehicle to take rest and the passengers brought pressure that they may be taken to the destination and that it was a night and some ladies and children were also there on the ghat road. There was no possibility to inform the nearby depots for making alternative arrangements either for arrival of a driver or shifting in another vehicle. The only option available was that a person knowing driving, said Suryanarayana said to be the guru / tutor of the writ petitioner, was allowed to drive the vehicle.

19. Possibility No.3 was accepted by the learned Single Judge after referring to the rules and authorities cited.

20. Possibility No.2 was accepted by enquiry authority, appellants and revisional authorities as well as the Labour and Industrial Tribunal.

21. The aspects should have been appreciated:

                  (i). Who has reported the matter.

                  (ii). Who can speak about what has happened.

                  (iii). Whether the material available is indicating the wilful misconduct of allowing an unauthorised persons to drive the vehicle or whether it was a case of necessity.

22. It is pertinent to note that initially proceedings were started against both the driver and the conductor. What happened to the proceedings against the conductor, G. Balayogi is not known. When misconduct is alleged against both the conductor and the driver, using the statement of the conductor, said to have been made under domestic enquiry, for finding the writ petitioner / driver at fault throws any amount of clouds against the case of appellants.

23. The other proper persons to speak about what has happened are the passengers. There is no report from the passengers, nor was any passenger examined. Atleast the said Suryanarayana, who was allowed to drive, was not examined. Neither the enquiry authorities nor the Tribunal has referred to the statements of any independent person. When the initial proceedings are against both the driver and the conductor, the conductor exculpating his role and making a statement implicating the driver, whether worthy of any credit, is a serious question. Interestingly, they said inculpatory part of the statement of the conductor against the driver is used to find fault against the driver / writ petitioner.

24. It is also came on record that up to the house of Suryanarayana, the vehicle was driven by him and thereafter again the writ petitioner drove the vehicle to the destination. The allegation is that an unauthorised person drove the vehicle for some part of the journey. The version of the writ petitioner is that he was sick, he asked for leave, the same was not given and he had taken medicines. He suffered illness, he was unable to drive and passengers brought pressure when he was asked for some rest. In that context said Suryanarayana, who taught driving to the writ petitioner was allowed to drive the vehicle for some time.

25. It is not the case that any harm had happened to anybody. Admittedly, it was a night time. For reasons unclear from the end of the management, the entrustment of driving was made to Suryanarayana. The reasons stated by the writ petitioner are that he was sick and there was pressure of passengers due to night time. The other proper person to speak about this is the conductor. He is also in charge of the bus. If the driver is guilty, conductor should also be guilty; may be his defence is that the driver had the final say. But, what methods were adopted by the conductor are also important. The conductor states that the writ petitioner was unable to drive, the vehicle was stopped for some time, passengers brought pressure. He (conductor) did not accept the entrustment. This is doubtful. However, Suryanarayana, the known person was allowed to drive to vehicle is said to be the tutor of the writ petitioner. It is not as if the Suryanarayana is unqualified or he does not know driving. No doubt, he is not an authorised person to drive in terms of employment. A person authorised to drive the vehicle in terms of a driving licence is different from a person authorised to drive by virtue of employment. Allowing an unauthorised person to drive the vehicle would primarily trigger against a person who does not possess a driving licence.

26. In the peculiar facts and circumstances of the case, in view of the absence of clear evidence as to what exactly had happened and whether it was due to pressure of the passengers or the necessity driven the said Suryanarayana to drive the vehicle, total blame cannot be thrown on the writ petitioner.

27. It is also a fact that either due to ill health or other reasons, the writ petitioner was not in a position to drive the vehicle. If it is to be considered that he was not in a proper state of mind. Then allowing an unauthorised person to drive the vehicle can‟t be considered as wilful. It is not as if two views are possible; the view taken by the disciplinary authority or by the Tribunal is not based on any rationality or possibility and much of the gap is filled with conjectures. Removal from service is a capital punishment as far as the employment is concerned.

28. The findings of the learned Single Judge, with reference to the rule position and precedents in the factual context of the case, are found well reasoned. Whereas, the appreciation as to proving of the charge by the disciplinary authority and the Industrial Tribunal is not found as in accordance with the law and evidence.

29. Therefore, we find that the orders of the learned Single Judge do not require any interference. Point Nos.1 and 2 are answered accordingly against the appellants.

Point No.3:

30. In the result, the Writ Appeal is dismissed. There shall be no order as to costs. As a sequel, miscellaneous petitions pending, if any, shall stand closed.