IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY EIGHTH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 2531 of 2004 Between: A.P.State Co.op. Marketing Federation Ltd., Parisrama Bhavan, Bashirbagh, Hyderabad, relpresented by the General Manager. ..... PETITIONER AND 1 The Presiding Officer, Indsutrial Tribunal, Hyderabad. 2 Sri.C.Sridhar, S/o.Sri C.I.Narasimham, (died) per LRs R/o.Plot No.7, SBH Colony, Adikmet, Hyderabad-500044. 3 PanyamHemalatha W/o. late Sridhar R/o.Plot No.7, SBH Colony, Adikmet, Hyderabad-500044. 4 C. Krishna Chaitanya S/o. late Sridhar R/o.Plot No.7, SBH Colony, Adikmet, Hyderabad-500044. 5 C. Koundinya S/o. late Sridhar R/o.Plot No.7, SBH Colony, Adikmet, Hyderabad-500044. RR 3to5 brought on record as LRs of deceased R2 as per court order dt. 1-12- 2005 in WPMP 27147 of 2005 .....RESPONDENTS 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 in the nature of Certiorari or otherwise directing the 1st Respondent to produce the records relating to I.D.No.139 of 2001 dated 25-8-2003 and declare the order of the First Respondent in I.D.No.139 of 2001 dated 25-8-2003 as notified under G.O.Rt.No.2086 dated 4-11-2003; Labour, Employment, Training and Factories (Lab-I) Department, Government of Andhra Pradesh and communicated to the Petitioner on 19-11-203 in so far as it relates to the direction as to reinstatement without back wages but with continuity of service is arbitrary and erroneous quash the same and as such not maitnainable. Counsel for the Petitioner:MR.MPAPA REDDY Counsel for the Respondent No.: GP FOR LABOUR The Court made the following : THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 2531 of 2004 ORAL ORDER: Heard Sri M.Papa Reddy, the learned counsel for the petitioner, Sri G.Vidyasagar, the learned counsel for the workman and the learned Government Pleader for Labour. The writ petition is directed against the award of the Industrial Tribunal-I, Hyderabad (‘the Tribunal’) dated 25.08.2003 in ID NO. 139 of 2001, which is renumbered I.D., the initial being ID No. 718/2000. The workman lodged the claim u/Sec.2-A(2) of the Industrial Disputes Act 1947 (‘the Act’) seeking invalidation of the order of the writ petitioner dated 20.07.2000 terminating him from service. The workman was employed as a Junior Assistant initially at the Head Office, Hyderabad. He was thereafter transferred to Anantapur in 1979 and again in 1984 to District office, R.R.District. He was then transferred to Adilabad district on 9.7.1997. Around that period the workman allegedly committed misconduct including continual spells of unauthorized absence. As a consequence two charge memos were issued one on 22.7.1999 and another 15.9.1999. The charges are as under: Charge No.1:- “That you have posted to work an accountant at Markfed Cotton Ginning and Pressing Unit, Adilabad, Joined on 13-08-1997 and absconding from duty with effect from 18-08- 1997.” Charge No.2:- “That you have disobeyed the orders issued in Memo dt.4-10-1997 refusing your leave and directing to report at Markfed Cotton ginning & pressing unit, Adilabad on Exigencies.” Charge No.3:- “That you have excused dereliction of duties without attending the officials work during the peak season and caused dislocation of work.” Charge No.4:- “That your case on reference to the Medical Board, Proved to be false. Thus you have Produced false Medical Certificate to avoid the Work.” Another charge memo was issued framing the following charge on the petitioner on 17-12-1999: Charge No.1:-“That you while working at Medak Dist. Office on 17-9-1998 you have cheated the office thus by signing the attendance register for the days of which you were absent.” Charge No.2:- “That you are negligent in your duties s the books of accounts were not up to date on the day of inspection of General Manager and Chief Accounts Officer i.e. on 11-11-1998.” Charge No.3:- “That you are irregular in attendance causing dereliction of duties. Since you joining at district Office, Medak up to 23-11-1998 and followed by absconding from duty since 24-11- 98.” The workman’s explanation to the charge memos not receiving positive resonance from the employer, an enquiry was initiated and held. The enquiry officer submitted a report dated 11.2.2000 holding the workman guilty of all the 7 charges set out in the two charge memos. Thereupon the employer issued a show cause notice dated 31.5.2000 proposing the penalty of termination from service. After perusing the workman’s explanation thereto, an order of termination dated 20.7.2000 was issued, which was challenged by way of the I.D. The Tribunal on a detailed scrutiny of the pleadings and the documentary evidence Exs.M-1 to M-36 and on a cogent analysis of the record concluded that the enquiry officer had rightly held that all the charges were proved against the workman. However, the Tribunal concluded that the charges levelled against the workman were not of serious nature but were trivial. On this reasoning and the further reasoning that there was no record of previous similar misconduct by the workman; that the workman was out of employment since the date of order of termination i.e., 20.7.2000 in respect of a misconduct in 1997- 98; and was also aged about 52 years and at the fag end of service, considered it appropriate to modify the punishment of termination of service to one of denial of back wages. The writ petitioner(employer) was directed to reinstate the workman without back wages but with continuity of service. Aggrieved thereby the employer is before this court. A perusal of the charges, in particular the consistent spells of abscondance from duty, production of false medical certificates and signing of attendance register during the days when the workman was absent, shows that the charges are grave in nature. The workman was found guilty of these charges viz., of serious misconduct. The writ petitioner – employer has considered imposition of the penalty of termination of service to be appropriate. It is trite that though the Industrial Tribunal or Labour Court is consecrated a measure of discretion u/Sec. 11-A of the Act, the discretion conferred is not appellate, not is it appropriate for the industrial adjudicator to step into the shoes of the employer and from that vantage point consider the appropriateness of the penalty. For exercise of discretion u/Sec.11A of the Act the industrial adjudicator must be objectively satisfied that the punishment imposed was perverse and grossly disproportionate to the charges held proved against the workman. In the case on hand the workman was found not only in the departmental enquiry but also in the scrutiny by the Tribunal to be guilty of all the charges. The charges are not trivial by any measure. In fact the misconduct alleged and found is grave. On this analysis the punishment of termination cannot be reasonably characterized as disproportionate or perverse. Therefore no discretion is available to over-turn the punishment of termination imposed by the writ petitioner- employer on the workman. For the aforesaid reasons the order of the Tribunal interfering with the punishment imposed by the order of the writ petitioner-employer dated 20.07.2000 is vitiated and is accordingly set aside. The writ petition is allowed, but in the circumstances without costs. __________________ GODA RAGHURJAM,J 28TH FEBRUARY,2008 TSNR/PVSN ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{CPK}