IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SECOND DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 5093 of 2006 Between: 1 Smt.Kamieni Yesoda, W/o.late Venkata Rama Rao, Tiruvuru, Krishna District. 2 Kamineni Purnakara Rao, S/o.Late Venkata Rama Rao, Hindu (being the minor represented by his mother and natural guardian) Tiruvuru, Krishna District. ..... PETITIONERS AND 1 The Depot Manager, APSRTC, Tiruvuru Depot, Tiruvuru, Krishna District. 2 The Regional Manager, APSRTC, Vijayawada, Krishna District. 3 The Presiding Officer, Labour Court, Guntur. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue may writ or order or direction more particularly one the nature of writ of MANDAMUS by setting aside Award in I.D,No.57/99 on the file of 3rd respondent dated 24-02-2005 in so for as it relates to retiring the workmen from the date of removal of service etc. and rejection of relief of compensation by declaring the same as illegal and arbitrary under Article 14 and 21 of the constitution of India and the provisions of Industrial Disputes Act, 1947 and consequently direct the 1st to 2nd respondents to grant a compensation of Rs.4 lakhs with together with interest @24% per annum as rayed for and grant costs of the proceedings and pass such other further orders as the Hon'ble court may deem fit and proper in the circumstances of the case. Counsel for the Petitioners:MR.M.PITCHAIAH Counsel for the Respondent Nos.1 and 2: MR.C.PRAKASH REDDY Counsel for the Respondent No.3: GP FOR LABOUR The Court made the following : ORDER: The husband of the first petitioner, late Venkata Rama Rao (for short “the employee”), was employed as Conductor in the Tiruvuru Depot of APSRTC. He remained absent from 08.01.1994 onwards. Therefore, a charge sheet, dated 19.01.1994, was issued alleging that he remained unauthorisedly absent. He submitted explanation and on a consideration of the same, the first respondent directed departmental enquiry. The Enquiry Officer submitted a report, holding that the charge was proved. Through order, dated 26.05.1994, the first respondent removed the employee from service. The appeal and review preferred by him were rejected by the respective authorities. Thereupon, he filed I.D.No.57 of 1999 before the Labour Court, Guntur, under Section 2-A(2) of the Industrial Disputes Act, 1947. During the pendency of the I.D., the employee died on 09.09.2000 and his legal representatives came on record. Through its award, dated 24.02.2005, the Labour Court had set aside the order of removal of the employee and directed that he shall be deemed to have retired from service with effect from 31.05.1994. His legal representatives, i.e. wife and minor son, have filed this Writ Petition, not being satisfied with the award. The petitioners contend that there was absolutely no basis for the first respondent to remove the employee from service, since the alleged absence was hardly for ten days, that too, covered by a medical certificate. The respondents filed counter-affidavit opposing the case of the petitioners. It is stated that the employee was habitual absentee and he was removed from service in the year 1986, on the ground of unauthorized absence. It is also stated that even after the initiation of the present disciplinary proceedings, he was reinstated into service, but still remained absent unauthorisedly. Heard Sri M.Pitchaiah, learned counsel for the petitioners and Sri C.Prakash Reddy, learned Standing Counsel for the respondents. If one goes by the charge framed against the employee, it appears as though the period of unauthorized absence is just ten days. The record, however, discloses, that the continuous absence of the employee was up to 08.02.1994. The relevant regulation mandates that an employee must obtain leave before remaining absent and where it becomes inevitable, the intimation about the absence must be given within 48 hours. The employee did not comply with the same. The Labour Court took various aspects into account and had set aside the order of removal. However, directing that the employee be deemed to have retired from service on 31.05.1994 i.e. the date of removal, does not appear to be correct. If the order of removal was found to be improper, the natural consequence was to direct reinstatement of the employee. Since the employee was no more, he must be deemed to have died while in service, at least, for the purpose of calculating the retirement benefits, if not for back wages. For the foregoing reasons, the Writ Petition is partly allowed, modifying the award passed by the Labour Court to the extent that the deceased-employee shall be deemed to be in service till the date of his death and his legal representatives shall be entitled for the retirement benefits calculated up to that date. It is also made clear that the legal representatives shall not be entitled to any back wages from the period of removal till the date of death of the employee. There shall be no order as to costs. ____________________ Dt.02.04.2008 L.NARASIMHA REDDY, J GJ To 1 The Presiding Officer, Labour Court, Guntur. 2. 2CCs to GP FOR LABOUR, High Court Buildings, Hyderabad. (OUT) 3.2CD copies