IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SIXTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 22424 of 1999 Between: A.P.S.R.T.C., rep by its Depot Manager BHEL Depot, Hyderabad. ..... PETITIONER AND A.M.Khan S/o Abdul Sattar Khan C/o Syed Dastagir, H.No.16-6-427/1, Osmanpura, Hyderabad. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a writ, order or direction more particularly in the nature of Writ of Certiorari by calling for the records in I.D.No.110 of 1997 dt.25.9.98 published in G.O.Rt.No.1924 date 29.10.1998 on the ﬁle of the Hon'ble Labour Court-II, Hyderabad and quash the order Counsel for the Petitioner: MR.K.MADHAVA REDDY Counsel for the Respondent No.: GP FOR LABOUR The Court made the following : ORDER: This writ petition is ﬁled by the Andhra Pradesh State Road Transport Corporation (APSRTC), through its Depot Manager, BHEL, Hyderabad, questioning the award passed by the Labour Court – II, Hyderabad, dated 25.08.1998 passed in I.D.No.110 of 1997. It is submitted by the learned counsel for the petitioner that there is a procedure prevailing in the petitioner- Corporation for appointment of drivers on daily wage basis, and their services will be engaged subject to availability of work, by maintaining seniority. It is also stated that as and when regular vacancy arises, they will be absorbed into the service of the Corporation. In the present case, the respondent was appointed as a driver on 21.11.1993 on daily wage basis, and he was in service continuously up to 10.10.1994. From 11.10.1994 to 27.10.1994, he was absent from his duties without any intimation. On the ground that his absence was not preceded by any intimation or covered by any sanctioned leave, disciplinary proceedings were initiated on 27.10.1994 by framing a charge against him, as under: “For having remained absent for duty from 11.10.1994 to till date without any intimation or prior sanction of leave resulting in dislocation of scheduled passenger service, inconvenience to the travelling public and loss of revenue to the Corporation.” In response to the said charge, the respondent-workman submitted his explanation to the eﬀect that he did not attend to duty due to severe stomach pain and motions, and in support of the same, he has produced a sick certiﬁcate, issued by the Government Hospital, Golkonda. It appears that the explanation oﬀered by the workman did not ﬁnd favour with the enquiry oﬃcer solely on the ground that the Superintendent of APSRTC Hospital has not accepted the sick certiﬁcate produced by the workman, and accordingly, the enquiry oﬃcer has submitted a report, holding that the charge framed against the respondent was proved. Based on the report of the Enquiry Oﬃcer, the petitioner-Corporation has disengaged the respondent from service with eﬀect from 9.03.1995. Questioning the order passed by the petitioner- Corporation disengaging him from service, the respondent- workman has approached the Labour Court by ﬁling an application under Section 2-A (2) of the Industrial Disputes Act, 1947 (for short ‘the Act’). The Industrial Tribunal, on appreciation of oral and documentary evidence available on record, has recorded a ﬁnding that no proper opportunity has been given to the respondent/delinquent in the domestic enquiry, and therefore, held that the enquiry conducted was invalid. However, taking the gravity of the oﬀence and the material on record into consideration, the Industrial Tribunal has ordered for reinstatement of the workman with continuity of service and attendant beneﬁts, but with 25% of back wages only. In this writ petition, it is argued by the learned Standing Counsel appearing for the petitioner-Corporation that inasmuch as the respondent-workman has not questioned the procedure adopted in the disciplinary proceedings, the Tribunal went beyond the scope of enquiry and declared that the enquiry is invalid. It is submitted that there was no proper explanation from the respondent for his unauthorized absence from 11.10.1994 to 27.10.1994. It is also contended that, in any event, the Industrial Tribunal has erred in awarding back wages to an extent of 25%, inasmuch as the workman was not a regular employee, and was appointed only on daily wage basis. Though the respondent is served, there was no appearance on his behalf, opposing the writ petition. In this case, the only charge against the petitioner is that he was absent unauthorisedly for a period of 17 days i.e., from 11.10.1994 to 27.10.1994. Even before the disciplinary proceedings were initiated, the workman has submitted a sick certiﬁcate issued by the Government hospital, Golkonda, in support of his explanation that he did not attend to duty as he was suﬀering from severe stomach pain and motions. It is his case that near to his residence, there is a Government hospital at Golkonda and he has taken treatment in the said hospital. In spite of the fact that such certiﬁcation was given by the Government hospital, the enquiry oﬃcer has recorded a ﬁnding that the respondent is absent unauthorisedly, solely on the ground that the Superintendent of APSRTC hospital has not accepted the said certiﬁcate submitted by the respondent- workman. Merely because the respondent has not approached the APSRTC hospital, that cannot be a reason to reject the explanation oﬀered by him that he did not attend to duty due to ill health for the period from 11.10.1994 to 27.10.1994. Though it is contended by the learned Standing Counsel for the petitioner that the respondent has not questioned the validity of the enquiry, it is always open for the Tribunal to examine, whether the ﬁndings recorded in the domestic enquiry are valid or not. However, the Tribunal found that due procedure has not been followed during the course of enquiry, and appropriate opportunity has not been given to the respondent- delinquent. In view of the ﬁndings recorded by the Tribunal, and in view of the defence of the respondent that his absence from duty was due to ill health, I do not ﬁnd any merit in this writ petition, warranting interference with the ﬁndings recorded by the Tribunal. But however, so far as the award of 25% back wages is concerned, the submission made by the learned Standing Counsel for the petitioner-Corporation requires consideration for the reason that the respondent was appointed as a driver and he was in the panel of daily wage workmen for absorption into regular service. Since the respondent-workman was not absorbed into regular service by the time the disciplinary proceedings were initiated against him, he was not having any right of claiming back wages, having regard to the nature of appointment given to him. In that view of the matter, I am of the opinion that the respondent is not entitled to any back wages as awarded by the Tribunal. For the aforesaid reasons, the award of the Industrial Tribunal to the extent of awarding 25% of back wages is set aside and it is made clear that the relief of reinstatement with continuity of service and attendant benefits is confirmed. The Writ Petition is partly allowed to the extent indicated above, but in the circumstances of the case, no order as to costs. _______________________ (R.SUBHASH REDDY, J.) 26th August, 2008 Js. ASSISTANT REGISTRAR // TRUE COPY // SECTION OFFICER To 1 2 CCs to G.P. for Labour, High Court of A.P. Hyderabad. (OUT) 2 2 CD copies.