THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.729 OF 2011 DATED 15TH SEPTEMBER, 2011 BETWEEN The Depot Manager, APSRTC, Waltair Depot, Visakhapatnam and another. …Appellants And Sri D.K.Kumar (Died) Per L.R. and others. …Respondents THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.729 OF 2011 JUDGMENT: (Per GM,J) This writ appeal is directed against the order dated 24.02.2011 passed by a learned single Judge of this Court in Writ Petition No.3003 of 2006 whereby the Award dated 30.09.2004 passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam, in I.D.No.14 of 2002, ordering deemed reinstatement of the deceased workman and granting 50% of back wages to his legal representatives, was upheld. For the sake of convenience, the parties shall be referred to as ‘the APSRTC’ and ‘the workman’. The workman entered the service of the Andhra Pradesh State Road Transport Corporation (APSRTC) as a Driver in January, 1988. He was subjected to disciplinary proceedings under charge sheet dated 27.07.1999. The charge levelled against the workman is to the following effect: “For having absented to your duties from 06.07.1999 to 15.07.1999 without prior permission or sanction of leave, thereby causing much inconvenience to the travelling public by way of cancellation of KMs which constitutes misconduct vide Regulation 28(xxvii) of APSRTC Employees (Conduct) Regulations, 1963.” After due enquiry, the APSRTC removed the workman from service by order dated 08.05.2000. The workman preferred an appeal questioning the said punishment which was rejected on 28.03.2001. Thereafter, he filed a review petition which too ended in rejection on 05.09.2001. Aggrieved thereby, he raised an Industrial Dispute under Section 2-A(2) of the Industrial Disputes Act, 1947, which was taken on file by the Industrial Tribunal-cum-Labour Court, Visakhapatnam, as I.D.No.14 of 2002. The Labour Court, on consideration of the material placed before it, including the evidence adduced by the APSRTC, Exs.M.1 to M.16, passed the Award directing that the deceased workman should be deemed to have been reinstated in service for the purpose of calculation of back wages and other service benefits and that his legal representatives were entitled to claim 50% of back wages from the date of his removal till the date of his demise. Questioning the said Award, the APSRTC filed the subject writ petition which was dismissed by the learned single Judge confirming the same. Aggrieved thereby, the present writ appeal is preferred. Heard the learned standing counsel for the APSRTC as well as the learned counsel for respondents 2 to 4, who are the legal representatives of the deceased workman. The learned standing counsel for the APSRTC vehemently contended that the workman was a habitual absentee and the charge levelled against the workman was proved after following the due procedure. He submitted that as the punishment of removal from service was imposed upon the workman duly taking into consideration the facts and circumstances of the case and the workman did not dispute the validity of the domestic enquiry before the Labour Court, it erred in interfering with the punishment imposed by the APSRTC. He submitted that the learned single Judge failed to appreciate these facts in the proper perspective and dismissed the writ petition. He therefore sought a declaration that granting of 50% back wages to the workman by the Labour Court from the date of removal till the date of his demise, which was confirmed by the learned single Judge under the impugned order, was illegal, arbitrary and unjust. On the contrary, the learned counsel for respondents 2 to 4 opposed the prayer of the learned standing counsel for the APSRTC and submitted that the Labour Court, considering the gravity of the proven charge and taking into consideration the evidence adduced by the APSRTC before it, ordered deemed reinstatement of the workman owing to his demise during the pendency of the I.D. and granted 50% back wages to his clients. He further submitted that the learned single Judge, while dismissing the writ petition, considered the evidence and material placed on record and held that the Labour Court had properly balanced the interests of both the parties, which did not call for interference in this appeal. He therefore prayed for dismissal of the writ appeal. As can be seen from the record, it is no doubt true that the workman had not disputed the validity of the enquiry conducted by the APSRTC before imposing the punishment upon him. The charge levelled against the workman was under Regulation 28(xxii) of the APSRTC Employees (Conduct) Rules, 1963, which reads thus: “28. General Provisions: ……… xxvii) Habitual late attendance, irregular attendance, absence without leave and without reasonable cause and absence without permission and wasting time or loitering while on duty.” Bare perusal of the said regulation reflects that the charge fell within its ambit and therefore it was an enumerated misconduct. After conducting due enquiry, the APSRTC imposed the punishment of removal from service upon the workman. Therefore, the crucial aspect that needs consideration in this appeal is as to whether the punishment imposed upon the workman by the APSRTC was shockingly disproportionate to the gravity of the proven charge. The gravamen of the charge proved against the workman was that he was absent from duties for a continuous period of ten days from 06.07.1999 to 15.07.1999 without obtaining prior permission or sanction of leave from his superiors which caused not only inconvenience to the travelling public but also loss of revenue to the APSRTC as it had to cancel a bus service. The argument of the APSRTC throughout, including in this appeal, is that the workman was a habitual absentee during his service and that he was removed and reinstated in service on two occasions before the imposition of the subject punishment, that is, on 18.08.1992 and 28.08.1998. The APSRTC also adduced documentary evidence in the form of Exs.M.1 to M.16 before the Labour Court to substantiate its case. On the other hand, the plea of the workman before the Labour Court was that due to ill-health he was absent from his duties during the said period but not otherwise. Perusal of the Award discloses that the Labour Court, on careful examination of the evidence and material placed before it, observed that the unauthorized absence of the workman for 10 days from duty did not warrant the punishment of removal from service and a lesser punishment could be imposed upon the workman for the proven charge. It was therefore of the view that the punishment imposed upon the workman was shockingly disproportionate to the gravity of the charge proved against him. Taking note of the fact that the workman died during the pendency of the I.D. and his legal representatives were already brought on record before it and as the charge levelled against him was duly proved, it rightly passed the aforestated Award directing that the workman be deemed to have been reinstated in service for the purpose of calculation of back wages and other service benefits and that his legal representatives, respondents 2 to 4 herein, were entitled to claim 50% of back wages from the date of removal of the workman till the date of his demise. A reading of the impugned order reflects that the learned single Judge, considering the gravity of the proven charge against the workman, observed that any punishment other than removal from service would have produced the desired result of correcting the erroneous and indisciplined behavior of the workman and that instead, the APSRTC imposed the extreme punishment of removal from service. The learned single Judge also took note of the fact that the back wages awarded at 50% was for a period of less than 3½ years as the workman was removed from service on 08.05.2000 and he breathed his last on 05.10.2003. Ultimately, the learned single Judge took note of the fact that the Labour Court had properly balanced the interests of both the parties and rightly passed the well reasoned impugned order confirming the Award passed by it. On the above analysis, we do not find any valid or legitimate ground in this appeal calling for interference and for arriving at a conclusion other than that arrived at by the learned single Judge in the impugned order which we uphold accordingly. In the result, the Writ Appeal is devoid of merit and is accordingly dismissed. The APSRTC/appellants are directed to make the payment to respondents 2 to 4 herein, as ordered by the Labour Court, Visakhapatnam, in its Award dated 30.09.2004 passed in I.D.No.14 of 2002, within four (4) weeks from the date of receipt of a copy of this Judgment. No order as to costs. __________________________ GHULAM MOHAMMED, J. ____________________ SANJAY KUMAR, J. 15TH SEPTEMBER, 2011. PGS/VGSR