THE HON’BLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.25602 of 2003 Dated: 03.08.2010 Between: S.E. (Operation), A.P.C.P.D.C.L., Mahaboobnagar District, and another. .. Petitioners. And Presiding Officer, Labour Court-III, Hyderabad, And another. .. Respondents. ORDER: This writ petition is directed against an award dated 18.02.2003 passed in I.D.No.190 of 1999 on the file of the learned Presiding Officer, Labour Court-III, Hyderabad. Petitioners are the management and respondent No.2 is the workman. It appears, the workman, while working as Lower Division Clerk (L.D.C.) in the respondent Corporation, the erstwhile Andhra Pradesh State Electricity Board (A.P.S.E.B.), was absented to duties and, therefore, an enquiry was conducted and, finally, he was terminated from his services by order dated 26.07.1996. Aggrieved thereby, the 2nd respondent raised I.D.No.190 of 1999 on the file of the learned Presiding Officer, Labour Court-III, Hyderabad, under Section 2-A (2) of the Industrial Disputes Act, 1947 (for short ‘the I.D.Act’). It was the case of the workman before the Labour Court that, while he was working as L.D.C. in the office of the Assistant Accounts Officer, Gadwal, he was issued with charge sheet dated 20.02.1993 alleging that he was unauthorizedly absented to duties with effect from 06.02.1991 to 25.11.1992 and with effect from 17.12.1992. It was his further case that on account of missing of his son, who was aged five years and born dumb, he was wandering from village to village in search of his son and, as such, he was mentally disturbed and absented to duties, but his absence was not willful; that due to mental worries, he could not submit his explanation, but informed the management about his mental condition; that the enquiry conducted by the Enquiry Officer was ex parte; that the findings recorded by the Enquiry Officer holding him guilty of the charges framed against him are based on mere surmises; that on the basis of the report of the Enquiry Officer, he was issued with show cause notice dated 11.10.1994, to which he could not submit his explanation because of mental disturbances being faced by him with regard to missing of his son, and ultimately, by order dated 26.07.1996, the period of his unauthorized absence was ordered to be treated as ‘Dies-Non’ and he was deemed to have resigned from service with effect from 17.12.1992, which was disproportionate to that of the alleged misconduct, and therefore, he sought to set aside the order dated 26.07.1996 with a direction to reinstate him into service with full backwages and all attendant benefits. It was the case of the management that the workman was unauthorisedly absent for more than one year on two occasions as per Regulation 28(3) of the A.P.S.E.B. Service Regulations Part-I; that he was deemed to have resigned from service with effect from 17.12.1992, the date from which he was unauthorisedly absent continuously for more than one year; that the Divisional Engineer/Enquiries/Hyderabad, who was appointed as an Enquiry Officer, conducted enquiry and submitted a report dated 24/25.05.1993 observing that the petitioner has failed to submit his explanation as also has neither attended for the enquiry nor put forth his defence and, hence, the charge of unauthorized absence was held proved; that as the workman failed to submit his explanation to the show cause notice, construing that the workman has no explanation to put forth his defence, final orders dated 26.07.1996 were passed imposing the punishment proposed in the show cause notice. Before the Labour Court, no oral and documentary evidence was adduced on behalf of the workman. On behalf of the management, no oral evidence was adduced, but Exs.M1 to M14 were marked on its behalf. After a detailed consideration of the entire material available on record, the Labour Court came to the conclusion that the domestic enquiry conducted by the management was valid and the Enquiry Officer has rightly held that the charge leveled against the workman was proved. However, having observed that the workman had put in 23 years of service till the date of his removal from service, by the impugned award dated 18.02.2003 the Labour Court set aside the removal order dated 26.07.1996 and directed the management to reinstate the workman into service with continuity of service, but without backwages and attendant benefits. However, the continuity of service was directed to be given effect only for the purpose of terminal benefits. It was further directed that the workman was not entitled for notional increments for the interrugnum period. Aggrieved thereby, the present writ petition is filed by the management. Sri P.R.Balarami Reddy, learned counsel for the petitioners, strenuously contended that this is a case of gross misconduct on the part of the 2nd respondent-workman in absenting to duties unauthorisedly for more than one year on each occasion. The 2nd respondent did not participate in the enquiry in spite of service of notice and issuance of show cause notice and, therefore, there was no other option for the management except to remove the 2nd respondent from service. He further submitted that the Labour Court, having found that the enquiry was valid and that the Enquiry Officer has rightly held that the charge leveled against the 2nd respondent was proved, ought not to have set aside the punishment of removal from service, more so when the 2nd respondent was unauthorisedly absented to duties for more than one year on each occasion. Sri A.K.Jayaprakash Rao, learned counsel appearing for the 2nd respondent, contended that the 2nd respondent had put in more than 23 years of service till the date of his removal from service and the enquiry was not properly conducted, as the plea of the 2nd respondent that he could not participate in the enquiry properly due to missing of his dumb son aged five years was not taken into consideration by the management. He also submitted that since there was no remark in the entire 23 years of service rendered by the 2nd respondent with the management, the Labour Court has rightly found that the removal from service was shockingly disproportionate to that of the alleged unauthorized absenteeism and, therefore, the impugned award passed by the Labour Court cannot be said to be either arbitrary or illegal calling for interference of this Court under Article 226 of the Constitution of India. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned award and other material made available on record. The fact that the workman was appointed as L.D.C. with the management in the year 1973 and rendered 23 years of unblemished service is not in dispute. The plea of the workman that his son, aged five years and dumb by birth, was missing is also not controverted. The fact that the workman was mentally disturbed due to missing of his son is also not disputed. No doubt, an opportunity was given to the workman to put forth his defence either in writing or oral, but he could not avail the same due to mental disturbances, and no witnesses were produced before the Enquiry Officer in support of his defence. However, considering the fact that the workman rendered 23 years of service without any remarks, the Labour Court passed the impugned order dated 18.02.2003 setting aside the removal order and directing the management to reinstate the workman into service with backwages and attendant benefits and, therefore, I am of the considered opinion that the same does not warrant interference of this Court under Article 226 of the Constitution of India, and the writ petition is, therefore, liable to be dismissed. Accordingly, the writ petition is dismissed. No order as to costs. _____________ C.V.RAMULU,J 03.08.2010 v v