THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.36283 of 1998 DATED:04.02.2008 Between: The Depot Manager and another. …Petitioners And Naguluri Uma Maheswara Rao and another. ..Respondents. THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.36283 of 1998 ORDER: Aggrieved by the award of the Labour Court, Guntur, in I.D.No.231 of 1994 dated 08.07.1998, the APSRTC has invoked jurisdiction of this Court. The first respondent-workman was charge sheeted on 11.03.1992, for unauthorized absence from 03.03.1992 till the date of the charge sheet. According to the first respondent, he remained absent for duty from 03.03.1992 to 14.04.1992, on which date he submitted his leave application along with medical certificate issued by the Medical Officer of Satya Nursing Home, Tiruvuru, wherein it was stated that the first respondent was suffering from severe viral fever from 03.03.1992 to 05.04.1992, that he was advised to take bed rest and that he was medically fit to join duty from 06.04.1992. The fact that the first respondent did not submit his leave application at any time prior to the issuance of the charge memo on 11.03.1992 is not in dispute. While Sri C.Prakash Reddy, learned standing counsel appearing on behalf of the Corporation, would contend that the first respondent had submitted his leave application along with a medical certificate only when he reported for duty on 14.04.1992, Sri M.Pitchaiah, learned counsel appearing on behalf of the first respondent, would submit to the contrary and contend that the first respondent had submitted his leave application along with medical certificate on 08.04.1992. In the departmental enquiry, the charge was held established and, after complying with the requirement of permitting him to submit his representation to the enquiry report, the disciplinary authority imposed on the first respondent the punishment of removal from service. Aggrieved thereby, the first respondent invoked the jurisdiction of the Labour Court, Guntur, under Section 2-A(2) of the Industrial Disputes Act, 1947 (for short “the Act”). The Labour Court held that the first respondent-workman had given the reasons for his absence from duty during the relevant period and that the reasons for his absence were beyond his control as he was suffering from severe viral fever, his wife had admitted him in a private nursing home and nobody was there in his family to inform the same to the higher authorities as he was bed ridden and his wife was illiterate. The Labour Court held that the workman had sufficient cause not to attend duty or in submitting a leave application for his absence. The Labour Court noted that, in the departmental enquiry, it was not even suggested to the first respondent that the medical certificate produced by him was false nor was there any evidence let in on behalf of the Corporation that the first respondent was not ill and, in the absence of any evidence, the version of the first respondent was required to be accepted. The Labour Court further held that for mere absence from duty the first respondent cannot be removed from service treating it as misconduct as he was prevented from attending duty due to sufficient cause and had produced a medical certificate to that effect. In this regard, the Labour Court relied on a decision of this Court in M.Krishna Raju v. The Electronics Corporation of India[1]. The Labour Court noted the contention urged on behalf of the petitioner- Corporation that the workman was required to submit a medical certificate within 48 hours but in this case the first respondent had submitted the medical certificate after one week that too from a private doctor which by itself constituted misconduct. The Labour Court, while noting that as per the leave regulations, the workman had to furnish a medical certificate within 48 hours, observed that the first respondent had clearly stated that his wife was illiterate and nobody was there in his family to inform the same to the higher authorities as he was bed ridden in the nursing home. The Labour Court held that for mere absence from duty, removal from service was shockingly disproportionate and that the punishment was not in consonance with the offence committed by the workman. The Labour Court held that the first respondent was entitled to reinstatement. The Labour Court went into certain extraneous issues and found fault with the averments in the counter filed by the petitioner before the Labour Court that the first respondent was a conductor, though in fact, he was a cleaner. The Labour Court, in its Award dated 08.07.1998, held that the first respondent was entitled for reinstatement with back wages and all attendant benefits. Aggrieved thereby, the present Writ Petition. Sri V.Prakash Reddy, learned standing counsel for the Corporation, would contend that even from the facts as noted by the Labour Court, the first respondent had failed to submit his leave application at any time prior to the issuance of the charge memo. Learned counsel would submit that, whatever may be the justification for the absence of the first respondent from duty, the fact remained that his absence was without permission and without sanction of leave and, as such, the first respondent had committed an act of misconduct. Learned counsel would point out that the Labour Court had not even examined this question and had merely observed that the first respondent had subsequently submitted his leave application and his inability to submit his leave application earlier was for just and valid reasons. Learned counsel would submit that since the charge has, in effect, been admitted, the Labour Court had exceeded its jurisdiction in absolving the workman and in directing that he be reinstated with continuity of service and back wages. Sri M.Pitchaiah, learned counsel appearing on behalf of the first respondent, would contend that the workman has not committed any misconduct as stipulated in Regulation 28 (xxvii) of the Andhra Pradesh State Road Transport Corporation Employees (Conduct) Regulations, 1963 (for short “the Regulations”). Learned counsel would state that the employer could have imposed a punishment only for proved acts of misconduct and, since the ingredients of misconduct as enumerated in Regulation 28 (xxvii) of the Regulations were not attracted in the present case, the employer had no jurisdiction to hold the first respondent guilty for an act which did not constitute misconduct or to impose on him any punishment much less an unduly harsh punishment of removal from service. While accepting that the Regulations did require the workman to submit a leave application within 48 hours, learned counsel would state that the Regulations did not prohibit submission of leave application subsequent thereto, that the Regulations required the employer to inquire into the genuineness of the leave certificate and, if found to be genuine, to sanction leave, if such leave was available to the credit of the workman. Learned counsel would state that the award would not necessitate interference since the Labour Court had rightly held that the absence of the workman from duty, and his inability to submit his leave application within time were for reasons beyond his control. Learned counsel would vehemently contend that, since the Award of the Labour Court did not suffer from any patent illegality apparent on the face of the record, there was no justification for the petitioner-Corporation to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. Learned counsel would point out that despite an interim order of this Court directing the petitioner herein to deposit 50% of the back wages, their failure to comply with the same would result in dismissal of the Writ Petition. Learned counsel would state that the petitioner-Corporation had reinstated the first respondent-workman consequent to the Award and since then he has been working as a cleaner for the past more than a decade and, if the Award is now set aside, it would result in his being thrown out on the streets. Under Regulation 28 of the A.P.S.R.T.C. Regulations, the acts or omissions mentioned thereunder shall be treated as misconduct. Clause xxvii of Regulation 28 reads thus: “Habitual late attendance, irregular attendance, absence without leave and without reasonable cause and absence without permission and wasting time or loitering while on duty.” The submission of Sri M.Pitchaiah, learned counsel appearing on behalf of the first respondent-workman, is that it is only if an employee has committed the misconduct of habitual late attendance or irregular attendance or absence without leave and if any of these acts are without reasonable cause, and the absence is without permission, and the workman had committed acts of misconduct of wasting time or loitering while on duty, the ingredients of clause (xxvii) would be attracted. According to the learned counsel, since it is evident from the facts established that the first respondent was not habituated to late attendant or irregular attendance and since his absence without leave is for reasonable cause, the ingredients of clause xxvii of Regulation 28 are not attracted. I must express my inability to agree. Even if the contention of the learned counsel, that it is only if any of the misconducts enumerated in the first limb of clause (xxvii) of Regulation 28, were attracted such acts coupled with the second limb would alone constitute misconduct were to be accepted, the fact remains that the first respondent had been absent without leave and without permission, and that he had submitted his leave application belatedly. It is not even disputed by Sri M.Pitchaiah, learned counsel appearing on behalf of the first respondent, that the workman did not submit his leave application at any time, prior to issuance of the charge memo or that his absence was without permission. Once it is held that the first respondent had abstained from duty without leave and without permission, the ingredients of clause (xxvii) of Regulation 28 are satisfied. The Labour Court has not even adverted to the Regulations and has merely examined the question whether there was justification for the workman to remain absent from duty. Once it is held that the misconduct has, in fact, been committed, the justification for such acts would only be a factor which the Labour Court ought to have taken into consideration in examining the proportionality of the punishment. The submission of Sri M.Pitchaiah, learned counsel for the first respondent, that for absence from duty for a period of ten days till the charge memo was issued, no employee can be thrown out of employment and imposed the punishment of removal from service cannot be said to be without merit. While the punishment of removal from service, as imposed by the employer, may, indeed, be harsh and disproportionate, there was no justification for the Labour Court, on the other hand, to absolve the first respondent of the charge and to direct that he be reinstated into service with continuity of service and back wages. The jurisdiction which the Labour Court exercises under Section 11-A of the Industrial Disputes Act, is firstly to examine whether the charge levelled against the delinquent workman has been established or not. In examining this question, the Labour Court has the power to re-appreciate the evidence on record and come to a finding different from that of the employer. If the Labour Court were to hold, on the facts on record, that the charge has not been established, then, of course, no punishment can be imposed on the workman. If, on the other hand, the evidence on record does show that the charges are established even then the Labour Court has to examine whether the punishment as imposed by the employer for the proved acts of misconduct, are proportionate to the charges held established. For instance, a capital punishment for a traffic offence cannot be justified. In certiorari proceedings this Court would not sit in appeal over findings of fact recorded by the Industrial Tribunal/Labour Court nor would it re-appreciate the evidence on record or substitute its opinion for that of the Industrial Tribunal/Labour Court. It is only when the Labour Court has failed to exercise the jurisdiction conferred on it or has failed to take into consideration relevant factors or where the Award suffers from an error of law apparent on the face of the record or the finding recorded by the Labour Court is perverse and is based on no evidence, would this Court be justified in exercising its certiorari jurisdiction under Article 226 of the Constitution of India. The finding of the Labour Court, that the first respondent is not guilty of misconduct, is a perverse finding. Once it is held established that the workman was absent without leave and without permission, the only question, which the Labour Court was required to examine, was the proportionality of the punishment. Section 11-A of the Industrial Disputes Act, 1947 confers powers on the Labour Court to substitute the punishment imposed by the employer with another. The power to substitute the punishment ought not to be exercised as a matter of course or on grounds of misplaced sympathy for the nature and extent of punishment to be imposed for proved acts of misconduct is, ordinarily, in the employer’s realm. While the Labour Court has been conferred the power to substitute the punishment imposed by the employer for just and valid reasons, the scope of interference with the discretion exercised by the Labour Court, in certiorari proceedings, is only if the punishment as substituted by the Labour Court, shocks the conscience of this Court or the punishment imposed is one which could not have been imposed at all. While the punishment of removal from service may not be justified the Labour Court, while exercising jurisdiction under Section 11-A of the Act in deciding the proportionality of the punishment, could not have absolved the first respondent and directed that he be reinstated into service with continuity of service and attendant benefits. As held by the Supreme Court in Delhi Transport Corporation v. Sardar Singh[2] unauthorized absence from duty affects the discipline of an organization and an employee found guilty of such misconduct ought not to be permitted to go scot free. Since the Labour Court has failed to exercise the jurisdiction under Section 11-A of the Act, on the quantum of punishment to be imposed, I consider it appropriate to set aside the Award and direct the Labour Court, Guntur, to examine the matter afresh only on the question of proportionality of punishment. The contention of Sri M.Pitchaiah that failure on the part of the petitioner herein to comply with the interim order of this Court to deposit 50% of the back wages would require this Court not to adjudicate the writ petition does not merit acceptance. While failure to comply with the order of this Court, even if it be an interim order, may justify initiation of proceedings for contempt that, by itself, would not require the writ petition to be dismissed. It is, however, made clear that failure to comply with the statutory provisions under Section 17-B of the Act, would stand on a different footing altogether as the amounts paid thereunder is in the nature of subsistence allowance. That question, however, does not fall for consideration in the present case, and failure on the part of the petitioner-employer to comply with the interim order would not necessitate dismissal of the writ petition without the matter being adjudicated on merits. The fact, however, remains that consequent to the Award, the first respondent-workman has been reinstated and he is continuing to work with the petitioner herein for the past nearly a decade. It would be wholly inappropriate if the petitioner were to throw him out of employment when the Labour Court has now to reconsider the punishment under Section 11-A of the Act. Ends of justice would be met if the Labour Court is directed to consider the matter afresh as expeditiously as possible and in any event within four months from the date of receipt of a copy of this order and till an Award is passed afresh, the petitioner is directed to continue the first respondent-workman in service. The Writ Petition is, accordingly, allowed. However, in the circumstances, without costs. __________ 04.02.2008 GJ [1] 1995 (1) ALD 478 [2] 2004 (7) SCC 574