THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.18971 OF 2000 DATED 8th SEPTEMBER, 2010 BETWEEN: B.Narender … Petitioner A n d The Labour Court-II, IV Floor, Chandravihar Building, M.J.Road, Hyderabad, rep. by its Presiding Officer, and another. …Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.18971 OF 2000 O R D E R The unsuccessful petitioner in I.D.No.82 of 1997 assails the Nil Award dated 01.03.2000 passed therein by the Labour Court-II, Hyderabad. The petitioner was appointed as a Conductor in the service of the Andhra Pradesh State Road Transport Corporation (APSRTC) in the year 1989. His services were regularized thereafter. He was subjected to disciplinary proceedings in connection with his alleged unauthorized absence from duty from 16.08.1993 to 27.12.1993. It was the case of the petitioner that he fell sick during the said period and was treated by one Dr.M.Gangadhar of Shanthi Pharmacy Clinic, Nizamabad. He claimed to have submitted the medical certificate issued by the said Doctor on 28.12.1993. However, this fact is disputed by the APSRTC. After considering his explanation, the APSRTC removed him from service by order dated 17.02.1994. Aggrieved thereby, he filed the subject I.D. before the Labour Court invoking the provisions of Section 2-A(2) of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’). Taking note of the fact that the petitioner failed to adduce any evidence to prove that he had submitted his medical certificate before the APSRTC, the Labour Court held against him on this ground and confirmed the punishment of removal from service imposed upon him. Sri V.Narsimha Goud, learned counsel appearing for the petitioner, stated that the Labour Court erred in not exercising its jurisdiction under Section 11-A of the Act of 1947 even if the alleged unauthorized absenteeism of the petitioner was established. The learned counsel contended that the punishment of removal from service imposed upon the petitioner was grossly disproportionate to the misconduct alleged and held proved against him. He pointed out that the petitioner was absent from duty for a period extending over just four months and he ought not to have been penalized for the same with the extreme and harsh punishment of expulsion from service. He placed reliance on the judgment of the Supreme Court in CHAIRMAN- CUM-MANAGING DIRECTOR, COAL INDIA LIMITED V/s. MUKUL KUMAR CHOUDHURI[1] in this regard. I find merit in the submission made by the learned counsel. The observations of the Supreme Court in MUKUL KUMAR CHOUDHURI are of relevance in this regard: “26. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access (‘sic excess’) to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he 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 or violate any of the Company’s Rules and Regulations 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 in our judgment, 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. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No.1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months.” Given the fact that the petitioner was alleged to have been absent without authorization for a period just in excess of four months, he stands on a better footing than the employee in the aforestated case. In such circumstances, his removal from service for such unauthorized absence pinches the conscience of this Court and is found to be shockingly disproportionate. However, as the petitioner remained out of service for well over one and a half decade, he would not be entitled to claim any benefits during this period. The APSRTC is accordingly directed to reinstate the petitioner in service as a Conductor without back wages and without continuity of service. This direction would sufficiently meet the ends of justice without putting an undue burden upon the APSRTC. The Award of the Labour Court in I.D.No.82 of 1997 is accordingly set aside and the writ petition is disposed of with the above directions. There shall be no order as to costs. -------------------------- SANJAY KUMAR,J 8th SEPTEMBER, 2010 PGS THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.18971 OF 2000 8th SEPTEMBER, 2010 [1] 2000 LAB. I.C. 3890