IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) FRIDAY, THE 24th DAY OF DECEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No.26850 of 2001 BETWEEN: R.Satyanarayana … PETITIONER(S) And The Presiding Officer, Labour Court, Guntur and another … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No.26850 of 2001 ORDER: The point that arises for determination in this writ petition is whether or not the award dated 07.04.2001 of the Labour Court, Guntur, upholding the charge of misconduct relating to unauthorized absence brought against the petitioner and confirming the penalty of termination of service imposed on him is correct. The second question alternatively raised is having regard to the misconduct the penalty of termination of service is disproportionate and whether the petitioner should be visited with any other lesser penalty while continuing him in the job. 2. The point arises in the following circumstances. At the relevant time, the petitioner was working as a Spinning Sider in the second respondent textile mill situated at Venkatarayapuram in West Godavari District and he was a workman as defined in Section 2(s) of the Industrial Disputes Act, 1947 (for short Act). It is not necessary to go into other details but it would be sufficient to note that the Secretary of the second respondent textile mill served a charge sheet dated 25.11.1993 on the petitioner on an alleged misconduct relating to his unauthorized absence. It would be convenient to set out the relevant portion of that charge sheet. The said charge sheet is actually drafted in Telugu language and an English version of it which is not disputed by the other side is filed by the petitioner and it would be convenience to set out that charge sheet which is as follows: “Charge Sheet Your attendance during Nov.1993 upto the 24th shows that you have absented yourself without leave on five occasions for a total of 11 days on the dates of 1, 4, 7, 8, 9, 10, 14, 21, 22, 23 and 24. Moreover your attendance from 17 March, 1993 shows the following absenteeism. Month No. of No. of days No. of Sick Action working workman days leaves taken days worked absent 17th March,93 15 4 8 - April, 1993 30 4½ 11 - Enquiry May, 1993 30 14 6 - held and June, 1993 30 5½ 2 3 suspended July, 1993 31 4 14 7 for four August, 1993 30 6½ 11½ - days Sept, 1993 20 16 9 - October, 1993 29 5 10 - ______________________________________________ 224 59½ 71½ 10 ______________________________________________ From the record of absenteeism as seen above it appears that absenteeism has become a habit with you. As per Standing Order M(e) of the Mills this is misconduct and unpardonable: M(e): Being Habitually absent – absenting from work without leave continuously for 8 days. Moreover in the past on several occasions you were warned and chargesheeted and enquiries were held and suspended from service. As every time you are saying that the reason for absence is bad health, you were sent for examination to Sri Mullapudi Venkataramana Hospital, Venkatayapuram. In the medical report it was revealed that you are in perfect health and can do your duties. It is unfortunate that inspite of giving all opportunities your behaviour has not chaged. It appears from this that the explanations that you are giving and have given are not true, and that you have no interest in doing the job. You must reply in writing and through your department head within 48 hours showing cause why action should not be taken against you for the above misconduct. If not, it will be presumed that you have no explanation to offer and disciplinary action will be taken against you.” 3. The petitioner submitted his explanation and thereafter a domestic enquiry was held. The enquiry officer considered the explanation of the petitioner and also a medical certificate dated 19.05.1993 issued by the Medical Superintendent of Sri Mullapudi Venkataramana Memorial Hospital. The enquiry officer’s report would reveal that he also recorded the statement of one witness apart from the statement of the petitioner wherein he admitted his unauthorized absence and requested for a pardon. The defence of the petitioner in the enquiry was that he was suffering from ill- health and because of the same he could not attend to work and he even orally made requests for sanctioning of leave and his request was not considered. It is also mentioned in the enquiry report that the petitioner was also previously in the habit of abstaining from duties unauthorizedly and despite the cautions given he did not improve his attendance. 4. Taking into account all the circumstances the enquiry officer submitted his report holding that the charge of unauthorized absence against the petitioner is proved. The charge sheet dated 25.11.1993 which is mentioned supra does not actually contain the allegations made against the petitioner in the form of specific charge but the details of all the allegations relating to the unauthorized absence of the petitioner are given in it and hence it cannot be said that the petitioner has been prejudiced in any manner. In fact, no objection was raised by the petitioner at any time regarding the form in which the charge sheet has been drafted and served upon him. 5. Thereafter, the competent authority i.e. the Secretary of the second respondent textile mill considered the enquiry report and held that the misconduct of the petitioner in abstaining himself for the above period is a grave misconduct and it falls under clause M(e) of the Standing Orders of the second respondent textile mill and he accordingly imposed the penalty of termination of service on the petitioner by his order dated 13.01.1994. This termination order would also read that the petitioner was also given a special notice dated 04.01.1994 to show cause against the proposed penalty of the termination of service and even though the petitioner gave an explanation it was found to be unsatisfactory and consequently the termination order was passed. 6. The petitioner thereafter took the matter before the first respondent i.e. the Labour Court, Guntur. The Labour Court took it up as I.D.No.382 of 1994. Before the Labour Court also the petitioner’s first defence was that he was compelled to abstain from work because of his ill-health and that his absence was not intentional and therefore the charge should have been dropped. His second defence was that even if the misconduct against him is proved it only relates to absence without leave and consequently the penalty of termination from service was totally disproportionate to the misconduct and therefore the Secretary of the second respondent textile mill should have imposed a lesser penalty by continuing him in the job and he pleaded for the said relief also before the Labour Court. It, however, rejected both the pleas of the petitioner and upheld the charges brought against him and also the penalty of termination from service. 7. In this writ petition, the learned counsel for the petitioner repeated the above pleas of the petitioner before the Labour Court. She, firstly, contended that the petitioner has filed the medical certificate dated 19.05.1993 issued by the Medical Superintendent of Sri Mullapudi Venkataramana Memorial Hospital, Venkatarayapuam, which is a hospital run by the management of the second respondent textile mill itself and that the said certificate shows that the petitioner was suffering from Infective Hepatitis since a few months prior to 19.05.1993 and the said disease would produce severe weakness and it was because of the said weakness the petitioner was compelled to abstain from duty or work and his absence was not intentional and therefore the management of the second respondent textile mill and the Labour Court erred in concluding that the petitioner’s absence was unauthorized and willful. Secondly, in the alternative, she argued that even if the charge is held proved, it was one of unauthorized absence and does not relate to any misappropriation or any criminal breach of trust and consequently the respondent and as well as the Labour Court should have considered the case of the petitioner for a lesser penalty while continuing him in the job. In this connection, she pleaded about the poor financial position of the petitioner and the need of a job for him and urged that having regard to these factors a lesser penalty should have been imposed. 8. One more contention which she raised relating to the penalty is that the enquiry officer in his report and as well as the Secretary of the second respondent who imposed the penalty dealt with about the previous occasions on which the petitioner unauthorizedly abstained from work and made that also a ground for imposing the penalty of removal from service and such previous misconduct or unauthorized absence should not have been taken into account and as that also weighed with the disciplinary authority in imposing the penalty of terminating from service the same should be set aside and lesser penalty should be imposed even though the charges are held to be proved. She also relied upon certain decisions in support of her contention based on the above two pleas. 9. On the other hand, the learned counsel appearing for the second respondent textile mill repelled all the above contentions raised on behalf of the petitioner and contended that the penalty of termination from service has been rightly imposed and the Labour Court Award confirming it is also quite valid and therefore there is no ground to interfere with the same. In the light of the above contentions, the point is now taken up for determination. Point: 10. The respective cases of the petitioner and the second respondent and the contentions raised on their behalf have already been set out supra. The charge relating to misconduct of the petitioner is one of unauthorized absence and the charge sheet which has been set out supra would show that the petitioner has remained absent unauthorisedly for a period of 71½ days i.e. right from 17.03.1993 to 24.11.1993. The details of the days for which the petitioner was unauthorisedly absent which are given in the charge sheet are not disputed. The enquiry officer’s report would also show that the petitioner gave a statement in the domestic enquiry repenting his unauthorized absence and pleaded for mercy and this is also not in dispute. The main defence of the petitioner is based upon the medical certificate dated 19.05.1993. It is true that this medical certificate is given by a Doctor of the Hospital run by the second respondent textile mill. 11. This medical certificate no doubt shows that the petitioner suffered from Infective Hepatitis about a few months prior to 19.05.1993 and that he was by then i.e. by 19.05.1993 having past Hepatitis Syndrome which will produce severe weakness and perhaps because of that he was irregular in attendance. This portion of the medical certificate is typewritten but a sentence is added in the manuscript and it reads that “He is now fit for duty” indicating that by 19.05.1993 he was fit for duty. The learned counsel for the petitioner pointed out in the course of arguments that the above sentence written in manuscript was subsequently added to suit the case of the management and it cannot be relied upon. This plea relating to interpolation is also taken in ground Nos.5, 6 and 7 pleaded in the affidavit of the petitioner filed in support of the writ petition. In the course of arguments, the learned counsel for the petitioner was specifically asked whether the above plea was taken in the domestic enquiry and in the Labour Court but she fairly stated that it was not taken and it is only mentioned now in the writ petition. Hence, the above plea relating to interpolation raised by the petitioner’s counsel now in this writ petition is rejected. 12. It may now be noted that the medical certificate mentioned supra though no doubt shows that about few months prior to 19.05.1993 the petitioner suffered from Infective Hepatitis and was by the date of medical certificate the petitioner was having past Hepatitis syndrome which will produce severe weakness yet the medical certificate reads that by 19.05.1993 the petitioner was fit for duty. Now in the charge sheet the details of the dates on which the petitioner worked and also unauthorisedly remained absent are shown from 17.03.1993 to 24.11.1993. The period of absence from 17.03.1993 to the end of October 1993 was shown as 71½ days whereas the period of attendance of the petitioner for the above period was shown as 59½ days. Further in the month of November up to 24th November, 1993 the period of absence is shown as 11 days and therefore the period of his duty for the said month should be 13 days. The petitioner did not explain how he could attend duty from 17.03.1993 to 24.11.1993 for a period of 62½ days. 13. The above pattern of the working days of the petitioner and days pertaining to his absence would show that the Hepatitis mentioned in the medical certificate was not the reason for his absence from June 1993 to 24th November 1993 which may work out to 57½ days. These 57½ days are calculated from June 1993 as the medical certificate was given on 19.05.1993. It may also be noted that he attended duty for 59½ days from 17.03.1993 to October 1993 and he did not explain how he could attend duty for this period if he was suffering from severe weakness which he pleaded basing on the medical certificate. Thus, this defence of the petitioner based on the above medical certificate does not merit any acceptance for the period or days during which he remained absent. 14. The petitioner, it may also be noted, as seen from the Award of the Labour Court, did not question the validity of the domestic enquiry and he could not show any other reason also before the Labour Court or in this Court to conclude that he was in any manner prejudiced in the enquiry. This circumstance plus the failure of the petitioner to explain as to how he could attend to duty from 17.03.1993 to 24.11.1993 for a period of 62½ days would also cut across his case that his absence for 71½ days was due to ill- health. The petitioner did not lead any medical evidence to show that his absence at least from 19.05.1993 for various dates mentioned up to 24.11.1993 could be due to any disease and he also did not lead evidence to show that in the domestic enquiry or before the Labour Court that there was any sufficient cause for his absence. 15. The learned counsel for the petitioner strenuously argued as pleaded in the writ petition that even though the medical certificate showed that the petitioner was fit for duty from 19.05.1993, yet the disease Infective Hepatitis is such that it will produce weakness intermittently and therefore that can be treated as sufficient cause for the absence of the petitioner in the above period. The petitioner did not take any steps to lead any medical evidence to support the above plea and hence it cannot be accepted now. 16. The Standing Order M(e) of the second respondent textile mill no doubt reads that being habitually absent or absenting from work without leave continuously for 8 days is a misconduct. In the present case, except in the months of May and June, 1993 in which months the petitioner was absent for 6 days and 2 days respectively and in the rest of the months up to November 1993 the petitioner was absent continuously for more than 8 days and this is stated in the charge sheet. Even otherwise, it may be noted that the petitioner could not explain his absence from 19.05.1993 continuously or intermittently up to November 1993 which works out to roughly 59½ days and this is also a strong minus point against him. 17. The learned counsel for the petitioner placed reliance upon a decision of our honourable Supreme Court given in BHAGWAN LAL ARYA vs. COMMISSIONER OF POLICE, DELHI[1] and a decision of this Court given in M.KRISHNAM RAJU vs. ELECTRONICS CORPORATION OF INDIA[2] in support of her contention that the petitioner’s absence based on medical certificate can be condoned. The proposition laid down in the aforesaid two cases is that absence on medical grounds supported by a proper medical certificate for the relevant period cannot be treated as a grave misconduct warranting dismissal or termination from service. In the latter decision it has also been laid down that where absence from duty is supported by proper medical certificate the management should grant whatever leave that is available to the credit of the workman/employee and if no leave is available he should be granted leave on loss of pay. Thus, these two cases are distinguishable on facts from the case on hand where the petitioner has failed to explain his absence by a proper medical evidence or medical certificate and hence the said decisions do not advance the cause of the petitioner. 18. The third case relied upon by the petitioner’s counsel is also a decision of our honourable Supreme Court given in DELHI TRANSPORT CORPN. vs. SARDAR SINGH[3]. In the circumstances and facts of that case, where the employee was unauthorisedly absent for a long period the management sought the approval of the Industrial Tribunal under the relevant provision of the Industrial Disputes Act for removing him from service but the Tribunal refused that permission and in the appeal before the Supreme Court their Lordships held that refusing approval was not correct and remanded the matter back to the Tribunal. This decision also does not advance the case of the petitioner. Thus, for the aforesaid reasons and in the circumstances of this case, the findings in the domestic enquiry and also the findings recorded by the Labour Court that the charge of unauthorized absence against the petitioner for the above period is proved must be upheld. 19. That takes me to the question whether the penalty of termination from service imposed by the second respondent and confirmed by the Labour Court in the Award is proper. It may be noted that the period of unauthorized absence in this case even from 19.05.1993 cannot be said to be a short period by any stretch of imagination and as already seen supra, it was not supported by any medical evidence. The learned counsel for the petitioner however pointed out that the charge sheet and the enquiry report and also the termination order show that the enquiry officer and the management took into account the previous occasions on which the petitioner remained unauthorisedly absent and as that also weighed with them in imposing the penalty of termination from service the penalty can be said to be disproportionate and therefore it cannot be allowed to stand and that a lesser penalty should be imposed while continuing the petitioner in the job. 20. In support of this above contention, the petitioner’s counsel placed reliance upon a decision of this Court given in R. MOHAN vs. REGIONAL MANAGER APSRTC KHAMMAM REGION[4]. In this case the charge against the workman was that he was absent only for a single day. However, the management took into account his past absence and imposed a penalty of removal from service. There was no charge framed against the said workman about his past absence. In those circumstances, this Court held that past misconduct or absence cannot be taken into account for imposing a penalty of removal of service where the enquiry related to absence of only a single day. However, this Court reduced the penalty and directed reinstatement without wages. 21. The above decision is also distinguishable on facts and cannot help the petitioner. It may be noted that the period of absence in this case runs into more than 60 days even if allowance is given for certain days going by the medical certificate. This apart in the charge sheet served on the petitioner he has been put on notice about his absence previously on several occasions and the enquiries held against him and also the warnings administered. Thus, the petitioner was put on notice about his previous unauthorized absence also and the earlier penalties. Thus, it cannot be said that the management unjustifiably relied upon the previous occasions on which the petitioner was unauthorisedly absent. In the circumstances there is no compelling reason to disagree with the conclusion of the Labour Court that the penalty of termination of service was rightly imposed. 22. Accordingly, for the aforesaid reasons the point is decided against the petitioner and this writ petition is dismissed. No costs. ______________________ N. RAVI SHANKAR, J 24th December, 2010. CVRK [1] 2004 LAB. I .C. 1748 [2] 1995 (1) ALT 744 [3] (2004) 7 SCC 574 [4] 2006 (2) ALD 385