THE HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION No. 27256 of 2008 Date: 16th June, 2011 Between: The Depot Manager, APSRTC Gooty Depot, Anantapur District … Petitioner And: P. Basha Khan and 3 others … Respondents THE HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION No. 27256 of 2008 ORDER: This Writ Petition is filed by the Andhra Pradesh State Road Transport Corporation (for short, the Corporation), seeking for issuance of Writ of Certiorari, and calling for the records pertaining to I.D.No.73 of 2003 on the file of Industrial Tribunal-cum-Labour Court, Anantapur, and declare the award dated 31.08.2007 in I.D.No.73 of 2003, as illegal and arbitrary and opposed to the Constitution of India. The respondents 1 to 3 herein are the legal heirs of late P.Mahboob Khan (hereinafter, the deceased). The deceased was an employee of the Corporation and died during the pendency of the I.D.No.200/1997 filed by him challenging the orders dated 15.12.1992 passed by the Corporation removing him from service. Subsequently, the legal heirs of the deceased came on record and filed I.D.No.73 of 2003, seeking back wages and other reliefs. The facts of the case in brief are: One P. Mahboob Khan was appointed as Driver in the Corporation in the year 1987. On the ground of his absenteeism from 03.03.1990 to 16.03.1990, he was issued charge sheet on 11.07.1990 and, after conducting enquiry, he was removed from service by the Depot Manager of Dharmavaram, vide proceedings dated 25.09.1990. On appeal before the Divisional Manager, the punishment was modified as deferment of annual grade increment for a period of 2 years without cumulative effect, and posted him in the Gooty Depot of the Corporation. Again the deceased was unauthorisedly absent to his duties and as per absenteeism report dated 18.08.1992, a charge sheet was issued on 09.09.1992 with the following charges: 1. For your absence from duty from 30.4.92 to 18.5.92 without prior sanction of leave or production of a valid sick certificate causing inconvenience to the Traffic Supervisors for arranging substitutes, which constitutes misconduct under Reg.28 (xxvii) of APSRTC Employees (Conduct) Regulations, 1963. 2. For your unauthorized absence from duty from 2.6.1992 onwards without prior sanction of leave or production of a valid sick certificate causing inconvenience to the Traffic Supervisors for arranging substitutes, which constitutes misconduct under Reg.28(xxvii) of APSRTC Employees (Conduct) Regulations, 1963. 3. For your irregular attendance and habitual absence from duty causing dislocation of services thereby inconvenience to the travelling public and loss of earning to the Corporation, which constitutes misconduct under Reg.28(xxvii) of APSRTC Employees (Conduct) Regulations, 1963. After conducting enquiry, he was removed from service vide order dated 16.12.1992. The deceased filed appeal before the Divisional Manager of the Corporation and the same was rejected on 25.12.1994, on the ground that the appeal was filed beyond the period of limitation. Questioning the legality of the removal order dated 16.12.1992, the deceased filed I.D.No.200 of 1997 on the file of Industrial Tribunal- cum-Labour Court, under Section 2-A(2) of the Industrial Disputes Act. The Corporation filed counter in the said I.D. and when the matter was taken up for hearing, the deceased filed I.A.No.10 of 2000 seeking to add a paragraph stating about his earlier removal from service and subsequent reinstatement by an order of the Divisional Manager. During the pendency of I.A.No.10 of 2000, the Corporation remained exparte in the main I.D. petition on 26.04.2000. Thereafter, the Corporation filed I.A.No.420 of 2000 seeking to set aside the exparte order. The said I.A of the Corporation was allowed as endorsed as no objection by the counsel for the deceased on 12.07.2001. On the same day, a memo was filed in I.D.No.200 of 1997 by the counsel for the deceased stating that the deceased died. In view of the said memo, the main I.D. petition i.e I.D.No.200 of 1997 was dismissed and, consequently the I.A.No.10 of 2000 filed by the deceased was also dismissed on the ground that the main case itself was dismissed. Thereafter, the legal heirs of the deceased filed I.D.No.73 of 2000, seeking to set aside the removal order dated 16.12.1992 issued by the Corporation. During the pendency of the said I.D., the 1st respondent herein filed I.A.No.533 of 2005 seeking to implead his mother and sister who are also the legal heirs of the deceased and the same was allowed and, thereby respondent Nos.2 and 3 came on record. The respondents prayed the Court to declare the order of removal of the deceased from service as illegal, and to direct the Corporation to pay the back wages and other benefits from the date of removal from service till the date of death of the deceased and further direct the petitioner to appoint one of the respondents on compassionate grounds in any suitable post. The Law Officer representing the Corporation filed a detailed counter contending that the deceased filed an appeal before the Divisional Manager after expiry of limitation period and the said appeal was rejected on 25.02.1994. Further, the deceased belatedly filed I.D.No.200 of 1997 on 01.08.1997, and upon the death of the deceased, the Court had dismissed the said I.D on 12.07.2001, and therefore, the present I.D.No.73 of 2000 filed by his legal heirs is also belated and hence not maintainable. The Labour Court, during the course of enquiry, marked Exs.M1 to M12 on behalf of the Corporation. Ex.M1 is the absenteeism report dated 18.08.1992, Ex.M2 is Charge sheet dated 09.09.1992 issued by the Corporation, Ex.M3 is the acknowledgment of the deceased, Ex.M4 is call letter dated 14.10.1992 addressed to the deceased, Ex.M5 is call letter dated 30.10.1992 addressed to the deceased, Ex.M6 is Statement of Sri K. Sunkaiah, Controller of Gooty depot, dated 10.11.1992, Ex.M7 is Enquiry Report dated 10.11.1992, Ex.M8 is Show Cause Notice dated 01.12.1992 for removal from service, Ex.M9 is Cover addressed to the deceased returned undelivered by the postal authorities, Ex.M10 is Removal Proceedings dated 16.12.1992, Ex.M11 is the Order of the Divisional Manager, Anantapur, dated 25.02.1994 on the appeal of the deceased, Ex.M12 is the list of previous punishments of the deceased. None was examined on behalf of the respondents-legal heirs and no document was marked. On considering the evidence on record and contentions of both the counsel, the Labour Court by the impugned award set aside the order of removal of the deceased and held that the LRs of the deceased are entitled for back wages for the period from 16.12.1992 to 13.02.2006. Aggrieved by the said order of the Labour Court, the Corporation filed the present writ petition. The learned Standing Counsel appearing for the petitioner- Corporation submits that it is a case of a habitual absentee who was an unprofitable employee and his absence caused hindrance in the operation of services in the Corporation and because of his absenteeism he was issued charge sheet. And even upon serving charge sheet, the deceased failed to submit an explanation and failed to participate in the enquiry and therefore, the department proceeded with the departmental enquiry, and it is upon the enquiry report that he was removed from service by the competent authority and on appeal the same was confirmed by the appellate authority. The counsel further contended that the previous conduct of the deceased was also not proper and that he was removed from service earlier in 1990 and on his appeal to the appellate authority, the removal order was modified as deferment of annual increments and he was reinstated. But again in 1992 he was unauthorizedly absent for which he was issued a charge sheet and was removed from service by removal proceedings dated 15.12.1992. On appeal before the Divisional Manager-appellate authority, the appeal was rejected on 25.12.1994 and the removal order was confirmed. The counsel further contended that though the deceased was served with the notice of enquiry, the same was returned with an endorsement that the addressee is not available, and that it is intentional avoidance of receipt of notice. Thereafter he failed to receive any of the notices served by the petitioner-Corpo ration with a view to avoid participation in the enquiry. Therefore, there was no other go to the department but to proceed with the enquiry, and the petitioner-Corporation has rightly taken the decision and issued the removal order vide proceedings dated 16.12.1992, and the said removal of the deceased employee from service was also confirmed by the appellate authority. The learned counsel contended that the Labour Court has not considered all the facts and by order dated 31.08.2007, set aside the order of removal of the deceased from service and granted the relief of back wages from the date of removal till the date of death of the deceased i.e, from 16.12.1992 to 13.02.2006, and therefore the impugned order is liable to be set aside. On the other hand, the learned counsel for the respondents herein submitted that except the charge sheet, the deceased was not served with any notice and though the deceased was absent for a period of 18 days in the first spell, he submitted the Doctors report showing the reason for his absenteeism and that he was not served any notice during the period of enquiry and it was only exparte enquiry and no enquiry report was furnished to him. On the merits of the case, he submitted that having received the sick report, the authorities have not considered the doctor certificate produced by him. To overlook the said certificate or to disbelieve the same, the petitioner-Corporation has not sent the deceased for examination by medical board, and no reasons were assigned to disbelieve that doctor certificate. He further submitted that there was a sufficient cause for absenteeism from the duties and thereafter when he produced the doctor certificate along with a leave application, the authorities ought to have considered the absenteeism was for a genuine and sufficient cause. Therefore, when the authorities have not considered the same, they should have sent the deceased workman for appearing before medical board for examination and report as per Section 8 of Industrial Disputes Act. Instead the Corporation has issued the order of removal from service. Being aggrieved by the removal order, the deceased approached the Labour Court under the Industrial Disputes Act, and the Labour Court has rightly considered all the aspects and found the order of removal as illegal and granted the back wages from 16.12.1992 to 13.02.2006 as sought for by the respondents herein. The Labour Court considering all the aspects came to the conclusion that no notice was issued to the deceased workman and also considered the absenteeism report and sick report wherein it was stated that there was a doctor certificate, but on the date of enquiry, the doctor certificate was not available, and no reasons were assigned for not enclosing the doctor certificate to say that whether the certificate was issued by a proper authority. The said observation of the Labour Court needs to be taken into consideration. The observation reads: “The said deceased driver though acknowledged the copy of charge sheet under postal acknowledgement dated 22.09.1992 failed to submit the explanation as could be seen from the record. An enquiry officer was appointed and he sent two inquiry notices dated 14.10.1992 and 30.10.1992 to appear before him. The deceased driver appears to have not attended the enquiry and an exparte enquiry was conducted on 10.11.1992 by recording the statement of the Assistant Depot Clerk and on the same day an enquiry report was prepared holding the above stated charges as proved with a request to initiate action against the deceased driver. Thereupon even without sending / furnishing copy of enquiry findings to the deceased driver the respondent straight away issued show cause notice of removal from service on 01.12.1992. The said show cause notice to have been sent by registered post was returned unserved with a postal acknowledgement as no such addressee. Finally the respondent herein removed the petitioner from service on 16.12.1992 with immediate effect and the Appeal filed before the Divisional Manager was also rejected on 25.02.1994. Hence the petition. The respondent herein filed detailed counter opposing the above ID petition and requested the court to dismiss the same.” The Labour Court having recorded the said pleadings, framed the following issue: “Now the point for consideration is whether the petitioners herein are entitled for setting aside the order of removal from service issued by the Respondent in his proceedings dated 16.12.1992 and entitled for back wages till the times of death of the deceased workman Sri. P.M. Khan who died on 13.06.2001 and any other consequential benefits. Initially the matter was heard on the point of validity of domestic enquiry and held the same as valid subject to reappraisal of evidence available on record at the time of final arguments. At the time of final arguments no documents were marked on behalf of the petitioners but marked Exs.M1 to M12 on behalf of the respondent Corporation. After due scrutiny of the same, the Court below observed: As stated supra the deceased driver P.M.Khan though acknowledged the charge sheet under a postal acknowledgement Ex.M3 failed to submit his explanation. Thereafter also he appears to have not appeared before the Enquiry Officer to offer his statement much less any other explanation available. The defence of the deceased driver can be collected from the absenteeism report Ex.M1 which was submitted by the controller before the Respondent. Ex.M1 dated 18.09.1992 absenteeism reveals that the deceased driver initially submitted a sick certificate for the period from 30.04.1992 to 06.05.1992 and extended sick from 07.05.1992 to 28.05.1992, that he performed his duty for 3 days i.e, 19.05.1992 to 21.05.1992, that he availed leave on 01.06.1992 and on next day onwards, i.e., 02.06.1992, he was absent to his duties without giving any information and that his absenteeism caused inconvenience to the traveling public and loss of revenue to the corporation. The production of sick certificates as found in the above stated absenteeism report Ex.M1 reveals that the petitioner herein fall sick and could not attend his duties. The sick certificates which the controller referred in the absenteeism report Ex.M1 not filed in Court for reference to find out whether they were issued by Government Doctor or by some private doctor. There is no evidence/record whether the said sick certificate were disbelieved or the Respondent issued any official memo directing the deceased driver to appear before the Corporation Hospital at Tarnaka, Hyderabad for examination and report. The Enquiry Officer issued enquiry notice under Ex.M4 dt.14.10.1992 requiring the deceased driver to appear before him on 19.10.1992 or on 23.10.1992 or on 27.10.1992 to participate in the enquiry. Again another enquiry notice under Ex.M5 dt.30.10.1992 was issued requiring the deceased driver to attend the enquiry on 3.11.1992 or 6.11.1992. There is no record whether the said enquiry notices were acknowledged by the deceased driver. As stated in the foregoing para the second enquiry notice Ex.M5 dt.30.10.1992 was requiring the deceased driver to appear before the enquiry either on 3.11.1992 or 6.11.1992. On none of these two dates the enquiry was conducted, but conducted on 10.11.1992, the date of enquiry of which not sent to the deceased driver, on the said day the statement of the Assistant Depot Clerk who was not the person submitted absenteeism report under Ex.M1, was recorded which patently does not contact the signature of the enquiry officer. On the same day of recording statement under Ex.M6 dt. 10.11.1992, the enquiry report Ex.M7 was prepared and submitted before the Respondent holding the above stated charges as proved. There is no record whether a copy of enquiry findings were sent to the deceased driver for his comments/objections but the Respondent straight away issued show cause notice of removal from service under Ex.M8 dt. 1.12.1992. Even before the expiry of the month time from the date of return of registered post under Ex.M9, the Respondent removed the petitioner from service under Ex.M10 dt. 16.12.1992.” Having regard to the above records available, the court below had observed as under: “The above stated observations and findings reveal that the material documents like sick certificates which the deceased driver submitted before the controller were not filed before the Court for reference much less the enquiry officer stated any thing about the same in his enquiry report. The deceased driver was not given information about the date on which the statement of the Assistant Depot Clerk was recorded and the statement itself does not contain the signature of the enquiry officer. It shows for the purpose of preparing an enquiry report, the enquiry statement appears to have been prepared. When the enquiry statement of the Assistant Depot Clerk does not contain the signature of the Enquiry Officer, it may amount that it was unauthorisedly prepared. These facts reveal that the deceased driver was not given sufficient opportunity to put forth his defence and prove the same and he was totally denied the principles of natural justice. There was no fair play while dealing with the case of the deceased driver. The perual of proceedings of removal from service issued by the Respondent under Ex.M10 reveals that he dis-believed the genuineness of the medical certificate for which there is no basis. The sickness of the deceased driver perhaps been aggrieved due to the fact of removal from service leading to his death on 13.6.2001. Under these circumstances it has to be held that the orders of removal of the deceased driver from service by the respondent herein as illegal and unwarranted and consequently his legal representatives are entitled for full back wages for the period from the removal from service of the deceased driver till the date of his death.” Along with this Writ Petition, the Corporation also filed W.P.M.P.No.35723 of 2008 seeking to suspend the operation of the impugned award dated 31.08.2007. This Court while ordering Rule Nisi in the said writ petition on 16.12.2008, issued interim direction suspending the operation of the impugned award. The respondents herein have filed W.V.M.P.No.627 of 2011 seeking to vacate the interim direction granted on 16.12.2008 in W.P.M.P.No.35723 of 2008 whereby the operation of impugned award of the Labour Court was suspended. When the matter is taken up for hearing the said W.V.M.P, the counsel for both parties requested to dispose of the main writ petition itself, and accordingly the matter is taken up for final hearing. The main object of the Industrial Dispute Act is to render justice keeping in mind the social objective of the Industrial Disputes Act for which it is framed. The enquiry is at two levels one is at the departmental level and the other at quasi-judicial level. In the instant case, the deceased workman was a driver who was removed from service on the ground of his unauthorised absence. The disciplinary authority has issued notice on the ground that he was absent from duties on the relevant dates. The charge sheet was issued and thereafter enquiry was conducted. It was exparte enquiry. In the process of enquiry, it is a known practice that after issue of notice, the explanation is called for and the charge sheet is framed. The notice has to be served on the employee and after service of notice, it is for the delinquent employee to submit his explanation. In the instant case, though the show cause notice was issued calling for the explanation to the charges levelled against him, the same was not served. Thereafter, an Enquiry Officer was appointed. Then a show cause notice was issued by the Enquiry Officer requiring the delinquent employee to attend the enquiry. The dates stipulated are different. No specific date was mentioned in the enquiry. Notice to the said enquiry has not been served on the delinquent employee. Therefore, the enquiry proceeded exparte. The enquiry officer submitted the enquiry report against the delinquent employee and issued a show cause notice as to why the proposed penalty should not be imposed the said notice did not contain the reference about the enquiry report to the delinquent employee. The said notices were not served on the delinquent employee and then basing on the said enquiry report, the punishment was imposed and the same was confirmed by the appellate authority. Under those circumstances, the deceased workman raised Industrial Dispute by filing a claim petition under Section 282 of the Industrial Disputes act, raising the ground that the impugned order passed by the original authority and confirmed by the appellate authority is totally in disregard to the principles of natural justice. While exercising power under Section 11-A of the Industrial Disputes Act, the Labour Court, on perusal of the record, found that there is violation of principles of natural justice for want of service of notice, except that of the charge sheet. The learned Standing Counsel appearing for the Corporation argued that when the deceased workman had received the charge sheet and the order of removal, what made him not to receive the notices issued by the authorities and the enquiry officer. It shows that it amounts to deliberate avoidance of the receipt of notice. Therefore, the department proceeded with the enquiry. The objective of an enquiry is that no employee shall be punished without following the due process of law and principles of natural justice. Even in the absence of any statutory obligation to issue any notice as per law, in an enquiry, before imposing any punishment, the principles of natural justice requires that a person on whom the punishment is being imposed, should be served with a notice and after the person had received the notice; and, imposing punishment without the person receiving such notice shall be in violation of principles of natural justice. In the instant case, the principle of issuance of notice is there, but the mandatory service on the deceased workman is not there. Therefore the Labour Court, on verification of the entire record, found that there is a total violation of principles of natural justice. In such a case, what is the relief to be awarded to the deceased workman was the question, and whether the delinquent employee shall have suffered due to the punishment imposed by the authorities which was imposed on him without following the principles of natural justice. The management-Corporation, before imposing the punishment or during the course of enquiry, should serve the delinquent employee with a notice and after service of such notice, if he does not present himself before the enquiry officer, it is open for the management-Corporation to impose the punishment; and in such a case it may not be open for the delinquent employee to say that he was not served with the notice and the question that it was an exparte enquiry does not arise. But in the instant case, it was an enquiry without notice at all. Moreover, when the notice is returned unserved or when the addressee is not available, the notice is to be served by way of paper publication because it is mandatory on the part of the management-Corporation to see that and the enquiry is conducted by following due process of law and by giving notice because in the process of disciplinary action, from the date of initiation of proceedings till the date of removal, the relationship of master and servant still exist. Therefore, when the employer initiates to take disciplinary action and consequently removes the employee, it is mandatory for the employer to serve notice on the employee. In the instance case, it is the categorical observation by the Labour Court that the delinquent employee was not at all served with any notice. Under these circumstances, I am of the view that the impugned order passed by the Labour Court does not suffer from any legal infirmity so as to interfere with the same under Article 226 of the Constitution of India. In the result, the Writ Petition filed by the petitioner-Corporation is dismissed. There shall be no order as to costs. ____________________________ (JUSTICE G. CHANDRAIAH) Dated: 16th June, 2011 PNV