HONOURABLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.4915 of 2005 ORDER: This writ petition is directed against an award made in I.D.No.284 of 1994 dated 29/04/2003 on the file of the Labour Court, Guntur, whereunder the application filed by the respondent under Section 2-A (2) of the Industrial Disputes Act, 1947 (for brevity ‘the Act’) was answered in his favour and the petitioner management was directed to reinstate the respondent-workman into service without continuity of service, without any back wages and without any attendant benefits. The petitioner is the management. Respondent is the workman. According to the workman, he was working as public health worker with effect from 31/12/1980 in the Municipal Corporation of Vijayawada. He fell sick on 11/06/1989 and was treated in Government hospital, Vijayawada, till 08/11/1989. He was served with a memo dated 31/07/1989 calling for explanation for his unauthorized absence. On account of sickness, he was unable to give reply to the memo immediately. After recovery, he appeared before Municipal Corporation Authorities and presented an application for permitting him to join in duty along with a medical certificate. The Municipal authorities did not permit him to join duty and his services were terminated. No charge sheet and notice were issued and no compensation in lieu of notice or retrenchment compensation were paid to the petitioner and no enquiry was conducted against him. Despite repeated appeals and personal representations to the municipal authorities, he was not permitted to join duty. Therefore, he presented application under Section 2-A (2) of the Act. A counter has been filed by the petitioner-management admitting the appointment of the workman on 31/12/1980 in the municipal corporation, Vijayawada, as a public health worker. However, it is stated that the termination of the workman was on 29/01/1991, after following due process of law. The allegation of the workman that he worked without any blemish regularly and continuously is false and it is also false to allege that his services were terminated on 09/11/1989. The petitioner/workman without leave absconded himself from duties for long periods earlier also. In addition to that he was granted leave on loss of pay and other leaves. He made an admission in letter dated 14/03/1988 about his absence from duty many times for the last 13 months prior to that letter. The workman absconded from duty from 11/06/1989. A memo was issued on 31/07/1989 instructing the petitioner to report for duty within three days from the date of receipt of memo, but he failed to do so. Therefore, it cannot be said that there was anything wrong in terminating the services of the workman-respondent. On behalf of the workman, he examined himself as W.W.1 and got marked documents Exs.W-1 to W- 3. Likewise, on behalf of the petitioner-management M.W.1 was examined and documents Exs.M-1 to M-62 were marked. After a detailed consideration of the entire evidence available before it, the Labour Court came to a conclusion on the basis of the evidence of M.W.1 that no charge sheet was issued and no enquiry was conducted as required under law. Under those circumstances, the Labour Court held that the termination of the workman on 09/11/1989 was arbitrary, illegal and in gross violation of the mandatory provisions under Section 25 (F) of the Act and therefore, directed reinstatement of the workman into service. However, in view of his past conduct, the Labour Court felt that the workman is not entitled for continuity of service, back wages and other attendant benefits. Hence, the workman/respondent was granted the relief of reinstatement alone. Aggrieved by the same, the present writ petition is filed. There is no necessity of going into all the details. It is suffice to notice the findings recorded by the Labour Court, which read as under: “Now I would like to deal with the evidence of M.W.1. M.W.1 categorically states that no proceedings were conducted before issuance of show cause notice of removal order and Ex.M53. No proceedings were issued to pay compensation to the petitioner. They got records to show that memos were issued to the petitioner regarding his unauthorized absence and the punishments awarded to him by deferment of increment. Apparently, no regular domestic enquiry was conducted by respondent even though charge memo was prepared and could not be served on the petitioner. The only reason which was given by the respondent for non-conducting of enquiry is that petitioner’s address was not available for service of any charge-memo or show cause notice or to sent notice for conduct of enquiry. No doubt, petitioner admitted in his evidence that he shifted his family to Guntur as he could not eke-out his livelihood in Vijayawada without any employment and he did not receive any memos, notices or orders of removal. He did not also see the paper publication. However, it is the bounden duty of respondent to make a paper publication even with regard to notice of enquiry and also show cause notice and orders of termination passed against the petitioner. But no such step or effort was taken by respondent. Mere paper publication calling the petitioner to join in duty before expiry of 30 days would not rectify he irregularities committed by respondent in removing the petitioner from service. Ex.M-54 is the paper clipping showing the publication. It is stated that on two occasions memos were issued to join in duty as he absented himself without applying for leave and charge memo was also issued along with reminder and it is also stated that for service of memos and charge memos and reminders, then enquiry was made about his whereabouts, it was revealed that he was not living in Vijayawada and this information was furnished by sanitary inspector to the office. Therefore, he was directed to join in duty before expiry of 30 days from the date of publication of the notice and submit an explanation for the charges made against him. Otherwise, he would be removed from service. The said notice does not speak about conduct of regular domestic enquiry. Therefore, it is vivid that respondent did not think of conducting any domestic enquiry against the petitioner before removal of petitioner. Ex.M-55 is the order of termination. Even in this document, there is no mention of conduct of domestic enquiry and it divulges that petitioner was terminated from service as he did not attend to duty even after expiry of 30 days from the date of paper publication. Therefore,, respondent’s orders of termination is quite illegal and this has been established by plethora of decisions of various High Courts and also Supreme Court. A permanent employee or causal worker cannot be removed from service without following the procedure contemplated under law or under Section 25 (F) of I.D.Act. Even though, Ex.M-46 and Ex.M-45 were marked to show that a letter was sent to Superintendent, Government Hospital to verify the genuineness of the certificates produced by the petitioner, no postal acknowledgements or postal receipts were filed before he Court to show that this communication and reminders were sent by Registered post with acknowledgment due or under Registered post. There is an endorsement that the letter was dispatched on 02/01/1990 and an initial is seen underneath this endorsement. It does not prove the service of this letter on Superintendent, Government Hospital. Therefore, respondent has got a duty to disprove the fact that petitioner was sick for the period commencing from 11-06-1989 to 08/11/1989. Without conducting any enquiry or without calling the doctor who issued the certificate to speak about the same, respondent cannot straight away form an opinion about falsity of the certificate and remove the petitioner from service on this ground. Though petitioner has alleged that his wife has also worked as public health worker in his place while he was ailing and she also received salary from the respondent for that period, he did not make any whisper in his evidence about the employment of his wife in his place during the period of his sickness. But an answer was elicited from W.W.2 by respondent that she was employed by respondent municipality from 01/07/1987 to 28/09/1987 and again from 07/08/1988 to 05/12/1988 during the absence of her husband as Badili worker. But a suggestion was made to her that she was not employed in the place of her husband, but employed as temporary badili worker. Even if she has employed as badili worker in the place of her husband petitioner could not take up a plea that no inconvenience was caused to the respondent on account of his absence as she might have employed either badili worker in the place of any other absentee worker and she might have received salary for that period.” Though the learned counsel for the petitioner strenuously contended that the petitioner was a habitual absentee and for more than half a dozen times he absented himself from the duties without sanction of leave etc., all those things cannot be considered in a case of this nature where there is a gross violation of the provisions of Section 25 (F) of the Act. The Labour Court in its wisdom while exercising the powers under Section 11-A of the Act denied the continuity of service, back wages and other attendant benefits except granting reinstatement. Therefore, I am of the opinion that the Labour Court has not committed any error in passing the impugned award calling for interference of this Court under Article 226 of the Constitution of India. Therefore, the Writ Petition is liable to be dismissed and is accordingly dismissed without costs. __________________ JUSTICE C.V. RAMULU 15th April, 2010 SKM