*THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO +WRIT PETITION NO.34432 OF 1998 %Dated 12.11.2009 # Depot Manager, APSRTC, Narayankhed, Medak District. ..... PETITIONER VERSUS $ 1. R. Bheemaiah, S/o Sri R. Sayanna, Rethi Bowli, Hymayunnagar, Hyderabad. 2. The Presiding Officer, Labour Court-II, Hyderabad. ...RESPONDENTS ! Counsel for Petitioner: Sri C. Suneel Kumar Reddy ^ Counsel for Respondent No.1 : Sri B.H.R. Chowdhary Counsel for respondent No.2 : G.P. for Labour. < GIST: > HEAD NOTE: ? Cases referred: THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.No.34432 OF 1998 ORDER: This writ petition has been preferred by the Depot Manager, Andhra Pradesh State Road Transport Corporation, Narayankhed, Medak District (‘the Corporation’, for short), calling in question the correctness of the Award passed by the Labour Court-II, Hyderabad, in I.D.No.125 of 1994, dated 30-04-1997. The 1st respondent was appointed as a Conductor with the State-owned Corporation, in the year 1983. On the ground that he has unauthorisedly absented from duty between 16-06-1992 to 06-08-1992, without obtaining any prior sanction of leave from the Corporation, he has been subjected to disciplinary proceedings. A charge sheet containing two limbs was issued on 06-08-1992. The 1st limb dealt with his unauthorized absence for the aforementioned period, whereas the 2nd limb deals with the charge leveled against him that he has not become available for duty in all for 127 days in the year and thus, caused grave dislocation to the service of the Corporation. A domestic enquiry followed and the Enquiry Officer held the 1st respondent workman guilty of the 1st charge. The disciplinary authority has proceeded to construe both the charges as held proved and issued a show cause notice, through his Proceedings dated 20-03-1993, as to why the 1st respondent be not removed from service. Though the 1st respondent workman has offered his detailed explanation, not being satisfied with that, the punishment of removal from service has been passed on 22-06-1993, by the Depot Manager. The Appeal preferred there against before the Divisional Manager, Sanga Reddy, was rejected on 22-11-1993. Hence, the 1st respondent-workman has raised I.D.No.125 of 1994, putting in issue the punishment of removal imposed on him. Both parties have contested the said industrial dispute. By an order passed on 25-03-1997, it was held that the domestic enquiry has been validly conducted. The workman, therefore, prayed for considering the proportionality of the punishment imposed against him for the proven misconduct. The workman has specifically pleaded that he could not perform his duties because of his precarious health condition, which resulted in his hands being swollen couple with burning sensation, requiring medical attention. He has, in fact, enclosed the medical certificate to vouch for the disease suffered by him and the treatment received in that respect. The workman has produced this material right at the first instance itself, but nonetheless, without assigning any valid or tenable reasons, the same has not been accepted. The Labour Court, upon perusal of this material, was, obviously, convinced that the 1st respondent-workman did suffer a setback in his health, requiring immediate medical attention and hence, he could not attend to duty for the period between 16-06- 1992 and 06-08-1992, and therefore, found that there was justifiable cause behind the absence of the 1st respondent-workman, though he ought to have obtained sanction of leave by following the proper procedure. The Labour Court had come to the conclusion that the imposition of the punishment of removal from service was grossly disproportionate and it was very harsh punishment too. Therefore, the Labour Court found that imposition of such a punishment as unsustainable. The Labour Court ordered reinstatement of the workman into service with all attendant benefits like continuity of service, etcetera. It had also awarded 25% of the back wages for the interregnum period. The learned Standing Counsel makes a serious grievance that the Labour Court, while exercising the extraordinary powers of discretion vested in it in terms of Section 11A of the Industrial Disputes Act, 1947, is, nonetheless, required to exercise such powers on the approved lines and it cannot mechanically substitute punishments for those imposed by the competent authorities. The learned Standing Counsel has also made a serious grievance that payment of back wages to the extent of 25% to a person, who stayed away from duty unauthorisedly, would amount to paying a reward for his proven misconduct. The learned counsel, Sri B.H.R. Chowdhary, appearing for the 1st respondent-workman, has particularly opposed this contention of the learned Standing Counsel. He would submit that when an employee falls sick, his main concern would be to get treated properly and get back well soon, so that he could assume duties. As a Conductor, the very nature of the job required to be performed by him not only requires him to be very mobile, but it would also have an additional impact upon his failing health. Therefore, if the respondent workman had shown priority for getting treated to a disease suffered by him, he should not have been faulted at all. The learned counsel would submit that unauthorized absence does not amount to misconduct automatically, if there are valid and justifiable reasons and compelling circumstances for such absence of a workman. It is only when an employee does not have any justifiable reason or basis for his absence, perhaps one can construe the same as a misconduct. According to the learned counsel for the respondent-workman, in spite of his honest intention not to stay away from duty, if an employee has been forced by the circumstances to stay away from duty, for the purposes of receiving medical attention and treatment, it will be harsh and unfair for an employer to construe such conduct as misconduct and then impose the gravest of the punishments of removal from service. It was further contended by the learned counsel for the 1st respondent- workman that the 2nd charge has not been held established during the course of enquiry, but the disciplinary authority does not appear to have concurred in this regard with the findings of the Enquiry Officer and appears to have proceeded mechanically as if both the charges framed against the 1st respondent-workman are proved. Therefore, the Labour Court has rightly exercised, according to the learned counsel for the 1st respondent- workman, the discretion available to it, under Section 11A of the Act, in substituting the appropriate punishment. According to the learned counsel for the 1st respondent- workman, denying the three-fourths of the back wages for the interregnum period itself is a grave punishment to an employee like that of the 1st respondent-workman. But however, the learned counsel had filed a memo into the Court, today, by pointing out that the 1st respondent-workman had already received 50% of the back wages, as ordered by the Labour Court in I.D.No.125 of 1994, dated 30-04-1997 and that he would be satisfied and would limit his claim to this extent instead of remitting the case for fresh consideration to the Labour Court. The memo filed by the learned counsel for the 1st respondent is taken on record. While exercise of discretion has got to be carried out on judicial lines and it shall not be based upon whims or fancies, but must be based upon the legal parameters and upon appreciation of the totality of the circumstances, which warrant such exercise. Though the Labour Court was expected to give reasons in this regard, but however, the peculiar facts, which are prevailing on record, would easily induce anyone to infer what really weighed with the Labour Court. It is so obvious that the Labour Court has been satisfied that the 1st respondent workman has a reasonable cause and basis for not performing his duties or not attending to his duties between 16-06-1992 and 06-08-1992, as he was truly not well during that period. He has undergone treatment and produced a medical certificate. When once a workman produces a medical certificate, it is not open to the Enquiry Officer to brush it aside lightly. On behalf of the management, no doctor has been asked to examine the respondent workman to reasonably ascertain as to whether he did suffer during that particular period requiring him hospitalization and or medical attention or not. In the absence of any such material and also in the absence of not securing the presence of the medical officer / doctor, who has issued the medical certificate of the workman or without finding out by any other reasonable mode and method by deputing any responsible officer of the Corporation to contact the doctor, who is said to have treated the workman and, thus, find out about the genuineness of the certificate issued by the doctor in favour of the respondent workman, the medical certificate produced, ought not to have brushed aside lightly. The employees of the Corporation do not necessarily require to undergo treatment at the dispensaries / hospitals of the Corporation. They can also receive medical attention and treatment either at any government hospital or at the hands of private physicians, depending upon the nature of the disease and the availability of the service of the qualified doctors. Therefore, the Labour Court found that there was justifiable reason for the 1st respondent- workman to have stayed away from duty from 16-06-1992 to 06-08-1992. That, in fact, knocks away the seriousness behind the 1st charge, but nonetheless, the 1st respondent-workman was guilty of not following the proper procedure and securing the prior sanction of leave and to that extent alone, he could be penalized. Punishment that is liable to be imposed by any disciplinary authority must necessarily meet the gravity of the charges and must also meet the occasion. Grossly disproportionate and harsh punishments, if, are imposed irrespective of the gravity of the charges, they will produce the opposite of the consequences of discipline. The morale of the working force will get shattered. The employees will not be able to function with the necessary freedom from pressure on their minds. They will not be able to contribute their very best to the productivity of the Organization. It is, therefore, very essential that a punishment that meets the guilt alone shall be imposed. Merely because the Andhra Pradesh State Road Transport Corporation Employees (Discipline, Control and Appeal) Rule 8, has provided for imposition of punishment of removal from service, the same shall not be invoked routinely or mechanically and regularly. It must be remembered that there are several other punishments, which have, as well, been prescribed under Rule 8 of the Rules, commencing from censure and end up with the dismissal from service. The rule- making authority has provided for a number of punishments, obviously, it is for the disciplinary authorities concerned to exercise necessary discretion in this regard and choose the right and appropriate punishment to be imposed against the erring employees. The disciplinary authorities, in a rush of blood, shall not impose routinely and regularly the punishment of removal from service or dismissal from service, if the misconduct committed by the employee is not very significant. For the failure on the part of the disciplinary authority to have exercised its mind properly on these lines, the discretion was really warranted to be exercised by the Tribunal in exercise of its power under Section 11 of the Act. I, therefore, do not find any merit in the contention canvassed by the learned Standing Counsel for the Corporation in this regard. However, the learned counsel for the respondent- workman, is gracious enough to recognize that the Corporation also should not be taxed heavily and, therefore, he filed a memo into the Court confining the claim of the 1st respondent-workman only to the 50% of the back wages of what has been awarded by the Labour Court, which works out to 12.5%. I consider that this response on behalf of the 1st respondent-workman strikes the equities far more properly and hence, it deserves outright acceptance. Therefore, except modifying the Award to the extent of substituting the payment of back wages to 12.5%, the writ petition, otherwise, stands dismissed, but however, without costs. --------------------------------- Nooty Ramamohana Rao, J Note: LR copy to be marked. (bo) mrk 12th November 2009