IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SECOND DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE B.N.RAO NALLA WRIT PETITION No.20555 OF 2001 Between: D. Vijayaji. - - - Petitioner. AND The Labour Court-III, Hyderabad, Rep. by its Presiding Officer. The Depot Manager, APSRTC, Suryapet Bus Depot, Nalgonda District. - - - Respondents. This Court made the following : HON’BLE SRI JUSTICE B.N. RAO NALLA WRIT PETITION No.20555 OF 2001 O R D E R: The petitioner was appointed as driver in Suryapet Bus Depot, Nalgonda District in the Andhra Pradesh State Road Transport Corporation (for short, ‘APSRTC’) in the month of September 1979. The petitioner was charge sheeted thrice by the second respondent on 07-02-1989, 21-03-1989 and 26-05-1989 respectively, for his unauthorized absence from duty, totally for a period of 11 days. After conducting departmental enquiry, he was found guilty of the charges and ultimately he was removed from service on 05-11-1990 by the Depot Manager, Suryapet Bus Depot. Assailing the said removal order, the petitioner preferred Appeal dated 02-01-1991 before the Divisional Manager, Nalgonda Region, which is numbered as DVM(N)/27(20)/91. The Appellate Authority i.e., the Divisional Manager, Nalgonda Region, after taking into the consideration the long service of 10 years and also that the appellant-driver had crossed the maximum age for any other appointment, had taken a lenient view and ordered that the appellant be reinstated into service as a fresh driver, without continuity of service, back wages and attendant benefits, with minimum basic pay of Rs.1,150/- vide proceedings in DVM(N)/27(20)/91, dated 04-07-1991. Aggrieved by the said order, the petitioner had raised a dispute in I.D. No.180 of 1998 before the Labour Court-III, Hyderabad. The Labour Court after taking into the material brought on record and after hearing both sides, passed an award confirming the orders dated 04-07-1991 passed by the Divisional Manager, APSRTC, Nalgonda Region. Challenging the said award, he filed the present writ petition. 2. Heard the learned counsel for the petitioner and the learned standing counsel for the second respondent-APSRTC. 3. Learned counsel for the petitioner submits that the petitioner was absent from his duties totally for a period of 11 days. He submits that even if the petitioner accepts his absence of 11 days from duty, the APSRTC, has no power as per APSRTC Employees (Classification, Control and Appeal) Regulations 1967 (for short, ‘the Regulations’) for imposition of punishment of appointment afresh as a driver. Therefore, the order of removal is absolutely unjustified and the Labour Court has erred in dismissing the I.D. of the petitioner by confirming the order of the Divisional Manager, Nalgonda Region, dated 04-07-1991. 4. In support of his submissions, he relied upon a decision reported in K.C. Narayana V. Managing Director, APSRTC, Hyderabad and others[1], wherein it was held that the Regulations are statutory in character. It is clear from Regulation 8 (1) of the Regulations that the penalties, which may, for good and sufficient reason, be imposed upon an employee are those enumerated in Regulation 8 (1) of the Regulations. That the punishment of “appointment afresh” is not one among the enumerated penalties is not in dispute and this Court disagreed with the observation that the appellate authority, in exercise of the powers under Regulation 27 of the Regulations, has the discretion to impose even a non-specified penalty provided it falls within the minimum and maximum penalty specified in the Regulations. Exercise of discretion can only be in accordance with law and unbridled and unfettered discretion would fall foul of the equality clauses under Articles 14 and 16 of the Constitution. Accordingly this Court set aside the order of reviewing authority appointing the petitioner therein as a conductor afresh and remanded to the APSRTC for consideration on the question of penalty. 5. He also relied upon another decision reported in Chairman- cum-Managing Director, Coal India Limited and another V. Mukul Kumar Choudhuri and others[2] wherein the Honourable Supreme Court in paras 21 and 22 observed that though the charge of misconduct of the delinquent was authorized absence from duty for six months, the delinquent fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority but the reason was purely personal and beyond his control and as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Therefore, the demand of justice would be met if respondent No.1 (delinquent) is denied back wages for the entire period, by way of punishment for the proved misconduct of unauthorized absence for six months. As such, the appellants therein were directed to reinstate respondent No.1 therein forthwith, but he will not be entitled to any back wages from the date of his removal until reinstatement. 6. On the other hand, it is canvassed on behalf of the second respondent-APSRTC that the petitioner was charge sheeted thrice for his unauthorized absence from duty, disciplinary action was initiated, enquiry was held, he was found guilty and accordingly, he was ordered to be removed from service. That on petitioner’s appeal, the Divisional Manager passed the order dated 04-07-1991 appointing him as driver afresh as he had crossed the maximum age for any other appointment, with a minimum basic pay of Rs.1,150/- and the same is justified. That on his raising the dispute in I.D. No.180 of 1998 before the Labour Court-III, Hyderabad, it was held that the order passed by the Divisional Manager was appropriate warranting no interference therewith. 7. Considering the facts and circumstances of the case, the submissions of the learned counsel for the petitioner that the petitioner is not disputing the validity of the domestic enquiry, but only the findings recorded therein, and also decisions cited by the learned counsel in support of his contentions, this Court is of the view that demand of justice would be met if the petitioner is ordered for reinstatement with continuity of service and attendant benefits, of course, without back wages, since he had put in 11 years of service by the date of his removal i.e., 05-11-1990. 8. Accordingly, the impugned award of the Labour Court-III, dated 28-03-2001 in I.D. No.180 of 1998 is set aside and the order of the Divisional Manager, Nalgonda Region, APSRTC, is modified as that of reinstatement with continuity of service and attendant benefits but without back wages, and it is to be held that the petitioner is entitled to arrears of wages from the date of ordering of fresh appointment dated 04-07-1991. However, he is not entitled to any back wages from the date of removal until reinstatement. The Writ Petition is accordingly disposed of. There shall be no order as to costs. _________________________ JUSTICE B.N. RAO NALLA. Dt.02-12-2010. Dsh. [1] 2007 (5) ALD 416 [2] (2009) 15 SCC 620.