THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.12060 of 2007 ORAL ORDER: This writ petition is filed challenging the Award made in I.D.No.22 of 2003 dated 2.3.2006 on the file of the learned Presiding Officer, Industrial Tribunal-cum-Labour Court, Visakhapatnam, whereunder the application filed under Section 2-A(2) of the Industrial Disputes Act, 1947 by the petitioner-workman was dismissed. It appears, petitioner joined the service of Respondent-Corporation as Security Guard. Thereafter, he was promoted as Security Head Guard and further promoted as Security Sub-Inspector. While he was working as Security Sub-Inspector, on 11.8.1999 he met with an accident and received some injuries to his leg. Petitioner applied sick leave from 13.8.1999 to 22.8.1999 and thereafter he extended the leave upto 15.11.1999. When the petitioner reported to duty on 16.11.1999, he was directed to appear before the RTC Hospital, Tarnaka, where he was examined and found that he was not genuinely sick. Therefore, a charge sheet was issued to the petitioner on 26.11.1999, framing the following charge: “For having left the headquarters on 12.8.1999 without prior permission from your superiors and continuously absented to your duties unauthorisedly from 13.8.1999 to 15.11.1999, failed to follow the procedure while reporting sick; put up your signatures on the original sick certificates on 16.11.1999; instead of reported directly in this office on 23.11.1999 when you were re-directed from Tarnaka Hospital, stayed at your native place Pithapuram unauthorisedly and finally reported in this office on 25.11.1999, which constitutes misconduct under Reg. 28(xix), (xxvii), (xxxi) and (xxxii) of APSRTC Employees (Conduct) Regulations, 1963”. The petitioner submitted his explanation to the said charge. Having not satisfied with the said explanation, the respondent-Corporation conducted a domestic enquiry. Petitioner did not attend the enquiry and the enquiry officer submitted a report holding the petitioner guilty of the charge stating that he absented from duty unauthorisedly. On the basis of the said report, the disciplinary authority held the petitioner guilty of charge and ultimately passed orders dated 3.7.2001 removing the petitioner from service. Being aggrieved thereby, petitioner also filed appeal before the appellate authority, however the same was rejected. Therefore, he raised a dispute under Section 2-A(2) of the I.D. Act before the Labour Court. Before the Labour Court, it was the case of the petitioner that the respondent-Corporation did not conduct the enquiry properly and the medical certificates produced by him were not properly looked into and the enquiry officer as well as the disciplinary authority held him guilty of charge without there being any evidence and assuming that the charge is proved, punishment of removal from service is disproportionate to that of the misconduct. The respondent-management resisted the claim petition denying the allegations made by the petitioner and stated that the petitioner was a regular absentee and he suffered several punishments, therefore the order of removal was passed. On a detailed consideration of the entire material placed before the Labour Court, the Labour Court dismissed the claim petition with the following observations: “In the first instance, there is absolutely no evidence as to when and for what ailment his leg was removed. The perusal of the record would show that even during the enquiry period and even after issue of removal notice, he absented himself unauthorisedly. Apart from that the past record would also show that he was indulging in the acts of absconding from duty, unauthorized absence, misbehaviour, frequent reporting of sickness and even he was punished with stoppage of increments with cumulative effect. For unauthorized absence itself, he was punished three times. Considering this past record of the petitioner which would establish that he was habitual unauthorized absentee and in the absence of any evidence as to how and when he sustained injury on his leg leading to the amputation, I do not find it a fit case for taking lenient view facilitating him drawal of retiremenet benefits. Thus I do not find any reasons to interfere with the punishment imposed also.” Being aggrieved by the said award, the present writ petition is filed. The learned counsel appearing for petitioner strenuously contended that though the charge sheet was issued for absenteeism from 13.8.1999 to 15.11.1999, the removal order shows that the petitioner absented from duty from 13.8.1999 till 3.7.2001 and on the basis of the same, order of removal was passed, whereas there was no charge of absenteeism from 16.11.1999 till the date of passing of removal order. In this regard, the learned counsel for petitioner relied on the Division Bench Judgment of this Court in W.A.No.769 of 2005 dated 5.4.2005, wherein it was held that “we have no hesitation to observe that in the absence of a specific charge for the alleged unauthorized absence for the period from 16.10.2004 to 19.10.2004, passing of the proceedings impugned by taking into consideration the unauthorized absence for the said period without any charge or enquiry, amounts to depriving the opportunity of the delinquent to defend his case and it also amounts to arbitrariness” and submitted that in this case from 16.11.1999 till 3.7.2001 there was no charge showing the said period as absenteeism. Insofar as past conduct is concerned, the learned counsel contended that all those charges were neither part of the charge sheet nor at any point of time they were discussed. Therefore, imposing of major punishment without following these principles is nothing but arbitrariness on the part of the respondent-Corporation. Whereas the learned counsel appearing for respondent-Corporation Mr.K.Satyanarayana Murthy strenuously contended that the petitioner suffered as many as 21 punishments during his service and most of them relate to absenteeism. He further stated that absenteeism is a matter of record and the Labour Court has considered all the aspects in detail and came to the conclusion as noticed above, which needs no interference by this Court under Article 226 of the Constitution of India. I have given my earnest consideration to the respective submission made by the learned counsel on either side and perused the impugned award and other material made available on record. It is an admitted fact that though the charge of unauthorized absenteeism was from 13.8.1999 to 15.11.1999, in the final order dated 3.7.2001 it was shown that the petitioner absented from duty from 13.8.1999 to 3.7.2001 and therefore, punishment of removal from service was imposed. In view of the Division Bench judgment in W.A.No.769 of 2005 dated 5.4.2005, I am of the opinion that the period considering unauthorized absence beyond the charge amounts to violation of principles of natural justice. Apart from this, the fact that the petitioner was a diabetic patient and his leg was amputated is not in dispute. Under those circumstances, I am of the view that the respondents have not conducted the enquiry properly and the charge was not properly framed, therefore the award passed by the Labour Court is liable to be set aside. It appears, in the meanwhile the petitioner had attained age of superannuation and no purpose would serve if the matter is remanded for fresh enquiry etc. Absenteeism is a matter of record and the petitioner cannot escape some punishment. If the petitioner is allowed to retire voluntarily from service that would meet the ends of justice. In the result, the writ petition is allowed and the impugned award is set aside. Further, the Respondent-Corporation is directed to treat that the petitioner had retired from service voluntarily with effect from 3.7.2001 and he shall be paid all the benefits accrued therefrom, within a period of three months from the date of receipt of this order. There shall be no order as to costs. ______________ C.V.RAMULU, J Date: 22.4.2010 DA THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.12060 of 2007 22.4.2010 IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.12060 of 2007 Date: 22nd April, 2010 Between: P.M.P. Kumar .. Petitioner And The Zonal Security Officer, APSRTC, Vizianagaram. .. Respondent