THE HON'BLE SRI JUSTICE C.V.RAMULU Writ Petition No.19725 of 2001 Order: This writ petition is directed against an award made in I.D.No.116 of 2000, dated 24.04.2001, on the file of the Industrial Tribunal-cum-Labour Court, Godavarikhani, wherein the application filed under Section 2-A(2) of the Industrial Disputes Act, 1947 (for short ‘the Act’) by the petitioner-workman was dismissed without granting any relief. It appears, the petitioner was appointed as a Driver in APSRTC in the year 1989 and subsequently, his services were regularized in that cadre. While that being so, according to the petitioner, his daughter met with untimely death, due to which, his wife became very sick and he was also mentally disturbed. Under those circumstances, he did not attend to his duties regularly. Therefore, he was issued with chargesheets for three spells of absenteeism, which read as under: “Chargesheet dated 31.03.1998: For having absented for duties unauthorizedly from 19.03.1998 to 29.03.1998 (11 days) without prior permission from the Superiors resulted in dislocation of services causing inconvenience to the traveling public besides loss of revenue to the Corporation which constitutes misconduct in terms of Reg.28 (xxvii) of APSRTC Employees (Conduct) Reg.1963. Chargesheet dated 16.04.1998: For having absented for duties unauthorizedly from 02.04.1998 to 16.04.1998 (15 days) without prior permission from the Superiors resulted in dislocation of service causing inconvenience to the traveling public besides loss of revenue to the Corporation which constitutes misconduct in terms of Reg. 28 (xxvii) of APSRTC Employees (Conduct) Reg.1963. Chargesheet dated 16.06.1998: For having absented for duties unauthorizedly from 17.04.1998 to 16.04.1998 (61) days without prior permission from the Superiors resulted in dislocation of services causing inconvenience to the traveling public which besides loss of revenue to the Corporation which constitutes misconduct in terms of Reg. 28 (xxvii) of APSRTC Employees (Conduct) Reg.1963.” It appears, though by Registered Post with Acknowledgement Due the chargesheets were dispatched, they were not served on the petitioner, resulting in his not attending the enquiry. Finally an order of removal was passed on 02.02.1999. Aggrieved by the same, petitioner filed an appeal before the appellate authority. It was also rejected on 10.05.1999. The further review also met with the same fate on 17.11.1999. Having no other option, he raised an industrial dispute under Section 2-A(2) of the Act before the Labour Court. Before the Labour Court, it was the case of the petitioner that in view of the mental agony he had undergone and the shock caused to his wife, due to the untimely death of his daughter, he could not attend to his duties regularly and absented from 19.03.1998 to 29.03.1998, 02.04.1998 to 16.04.1998 and 17.04.1998 to 16.06.1998. According to him, he never received any intimation from the disciplinary authority with regard to conducting of the enquiry and an ex parte enquiry was conducted and he was held guilty of the charges and was removed from service. Therefore, the removal order passed on 02.02.1999 as confirmed by the appellate and review authorities suffer from gross violation of principles of natural justice. Apart from that, even if the charges are proved, they are trivial in nature and the punishment of removal from service is not proportionate to the misconduct alleged. The respondents filed counter before the Labour Court stating that past service of the petitioner was not clean and he was a habitual absentee and several punishments were imposed earlier. The petitioner though served with notice, did not attend the enquiry. Hence, the disciplinary authority has rightly held the petitioner guilty of charges and imposed punishment of removal from service, since he did not mend his ways in spite of suffering punishments earlier. The enquiry was properly conducted and the charges were proved and there was no scope for the Labour Court to interfere with the order of the disciplinary authority as confirmed by the appellate and review authorities. Before the Labour Court, on behalf of the petitioner-workman, none was examined nor any documents were marked. However, on behalf of the second respondent-Management, though none was examined, Exs.M1 to M20 were marked. After a detailed consideration of the entire material placed on record, the Labour Court simply confirmed the order of removal passed by the disciplinary authority holding that the petitioner being fully aware of the enquiry initiated against him, remained ex parte, absented from his duties and he had no explanation for his absence. Aggrieved by the same, the present writ petition is filed. The learned counsel for the petitioner has strenuously contended that the enquiry was one sided and ex parte and no notice of any kind was served on the petitioner. Exs.M8 and M10 would indicate that the letters sent to the petitioner returned unserved. Therefore, the disciplinary authority ought not to have proceeded with the enquiry without properly serving the notice or making some substituted service of the same. In spite of non-service of notice, the disciplinary authority conducted enquiry ex parte and found the petitioner guilty of the charges. Therefore, there was gross violation of principles of natural justice and on this ground alone, the removal order passed by the disciplinary authority is liable to be set aside. Apart from that, the Labour Court has not discussed the validity or otherwise of the enquiry conducted by the disciplinary authority and no such findings were recorded. Insofar as the merits are concerned, the Labour Court did not go into any other aspect, except saying that the charges against the petitioner are proved and the punishment of removal from service is in proportionate to that of the charges alleged and accordingly, the application filed by the petitioner under Section 2- A(2) of the Act was rejected, which is erroneous and the Labour Court has not applied its mind. Per contra, Sri P.Sridhar Reddy, the learned Standing Counsel for the second respondent, supported the award passed by the Labour Court and submitted that the charge of absenteeism is a matter of record and there is no necessity to prove it again and again. Even assuming that the notices were not properly served and no opportunity was given to the petitioner, there is no explanation offered by the petitioner even in the appeal filed before the appellate authority or the review authority as to his absence. Since the petitioner remained ex parte in the enquiry, the Enquiry Officer found him guilty of the charges and there was nothing wrong in rejecting the case of the petitioner by the Labour Court. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the material made available on record. At the outset, it is to be noted that the petitioner had categorically asserted that due to the untimely death of his daughter, his wife became ill and he was also mentally disturbed, resulting in his absence for those three spells. Therefore, the question of submitting any medical certificate does not arise. The issue as to whether the enquiry was properly conducted, in view of Exs.M8 and M10, notices, which were returned unserved, was not considered by the Labour Court at all. Had this fact was taken into consideration, the Labour Court might have come to the conclusion that the enquiry was conducted without serving the notice on the petitioner properly. Therefore, the enquiry is vitiated. But no such attempt was made. Further, as submitted by the learned counsel for the petitioner, no reasons were recorded by the Labour Court in coming to the conclusion that the charges were proved and therefore, the punishment of removal from service is proportionate to the misconduct alleged. In a case of this nature, may be it requires to be remanded for re-consideration. But now it is more than 11 years since the petitioner was removed from service. Therefore, I deem it appropriate to give a quietus to the litigation at this stage, without going into other merits as to whether the enquiry conducted is vitiated under law or charges are proved. The only aspect that can be gone into is whether the punishment of removal from service in the peculiar circumstances of the case could not have been said to be proper and proportionate to that of the charges proved against the petitioner. I am of the considered opinion that because the daughter of the petitioner met with untimely death, due to which, his wife became mentally sick and he was also mentally disturbed, and by that time, he had put in 11 years of service and even though similar such punishment was imposed earlier, the petitioner could have been given an opportunity to serve the organization. Under those circumstances, the award passed by the Labour Court is modified to the following effect: The order of removal passed on 02.02.1999 as confirmed by the appellate and review authorities is set aside and the second respondent is directed to re-instate the petitioner into service with continuity of service, but without backwages and attendant benefits. It is further made clear that the petitioner is not entitled to reckon the period of service during which he is out of employment for the purposes of promotion, increments, etc. In the result, the writ petition is disposed of. No costs. ___________________ (C.V.RAMULU, J.) Date:31.08.2010 VGB