IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRD DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No : 22030 OF 2002 Between: M.A.I.Siddiqui . .Petitioner And The Industrial Tribunal-cum-Labour Court, Godhavarikhani, Karimnagar District and another. .. Respondents THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.22030 OF 2002 ORDER : This writ petition is directed against the award passed on 23.01.2002 in I.D. No. 45 of 2001. The writ petitioner joined the service of A.P.S.R.T.C at its Metpally Depot in Karimnagar District as a conductor on 09.05.1992. He was regularized with effect from 17.08.1992. After performing his duty, as a conductor, he fell sick on 02.07.1997. Therefore, he sought for a day off on 03.07.1997 and also a day off on 04.07.1997 in compensation for the additional man days which he worked on. From 05.07.1997 to 11.07.1997 he has received treatment from the Government Civil Hospital at Metpally and brought the said fact to the notice of the Depot Manager at Metpally. He received treatment subsequently from 12.07.1997 to 19.08.1997 at Siddipet. He could not attend to duties during this period and in fact he was also referred to the Head Quarters Hospital of A.P.S.R.T.C at Tarnaka, Hyderabad. Without regard for these facts, the writ petitioner has been subjected to disciplinary proceedings on the plea that he has absented himself between 03.07.1997 to 04.08.1997 and based upon the findings recorded by the enquiry officer at the domestic enquiry he has been inflicted with the punishment of removal from service as the charge of unauthorized absence from duty was held established. In those set of circumstances, the writ petitioner raised a industrial dispute in I.D. No.45 of 2001. He has examined himself before the labour Court and also got marked seven exhibits W-1 to W- 7. On behalf of the management, none was examined, but, however, Exs.M-1 to M-20 were got marked. The labour Court has dealt with the entire issue very tersely. It had concluded the entire matter in few lines as under. “6. POINT:- Ex.M-1 is report against the petitioner dated 01.08.1997. It shows that the petitioner was absent from the duties from 3-7-1997 onwards. Ex.M-2 is charge-sheet dt.7-8-97. Ex.M-3 is postal acknowledgement. Ex.M-5 is explanation to the charge-sheet. The petitioner stated that he was treated upto 19-8-97 in the RTC clinic at Siddipet. 7. Ex.M-12 is statement of S.V.Narsu, Senior Traffic Inspector. He stated that the petitioner was absent from duties from 3-7-97 without intimation. 8. There was no justification for the petitioner to be absent from duties till he was removed from the service. The petitioner remained exparte in the enquiry. The petitioner did not report to duty even after 19-8-97. I, therefore, consider that the charge against the petitioner is proved and the punishment of removal of the petitioner from the service is in proportion to the charge. Hence, I answer the point accordingly. In the result, this petition is dismissed. The order of removal of the petitioner from the service is confirmed. Each party do bear their own costs.” To put it very mildly, the manner in which the industrial tribunal- cum-Labour Court dealt with this issue is far from satisfactory. The charge that was alleged against the writ petitioner was that he was unauthorisedly absent from 03.07.1997 onwards. The answer furnished by the writ petitioner-workman was that he has availed day off on 3rd July and 4th July and hence, his absence cannot be treated as mis-conduct for those two days. Whereas from 5th July, 1997 he was undergoing treatment at the Government Civil Hospital, Metpally, which is one of the recognized hospitals by the respondent-corporation for its employees to receive treatment and he followed it up with treatment at the R.T.C dispensary at Siddipet and subsequently he has also been referred to the head quarters hospital at Tarnaka. Therefore, there was justifiable reason for his absence from service beyond 5th July, 1997. He has produced the sick certificate Ex.W-1 and the reference of the Deputy Civil Surgeon, R.T.C hospital at Metpally to head quarters hospital at Tarnaka as Ex.W-2. Ex.W-3 was the certificate issued about his sickness. Similarly Ex.W-5 is the sick certificate issued by the senior medical officer, Tarnaka dated 18.11.1997. Therefore, in the face of Exs.W-1 to W-5, the writ petitioner could not have been seriously faulted for his absence from duties. At best he can be accused of not obtaining leave of absence in advance. The labour Court had failed to appreciate that if an employee is seriously ill and he is receiving medical attention or treatment for his sickness, he can hardly be expected to be in a position to perform his duties. Therefore, for a justifiable reason or cause, if an employee had stayed away from performing his duties, he cannot be accused of committing a grave misconduct warranting imposition of the punishment of removal from service. Imposition of removal from service is a grossly disproportionate punishment to the proven misconduct. The enquiry officer could not have returned a finding that the writ petitioner is guilty of the misconduct, when the writ petitioner was in fact undergoing treatment. It is a case where the writ petitioner has been proceeded against in a mechanical fashion and in normal circumstances, I would have preferred to set aside this award for its lack of appropriate reasons and consideration. However, by remitting the matter back, the litigation would only get prolonged apart from hightening the agony of the writ petitioner. In those set of circumstances, when I made request to the learned standing counsel for the A.P.S.R.T.C to ascertain as to whether the management would be willing to consider substituting any other punishment, instead of remitting the matter to the labour Court to cut short the litigation, the learned standing counsel is fair enough to submit that the corporation would be willing to re-employ the writ petitioner as a fresh conductor. What punishment should be imposed for the quantum of proven misconduct is an area which squarely falls within the domain of exercise of power by disciplinary authority. Courts, which normally exercise judicial review power, have seldom substituted any punishment in so far as the proven misconduct is concerned. The matter was required to be remitted back, but, however, since the corporation itself has shown a certain degree of reconsideration of the entire matter, I consider it appropriately to substitute the following for the award passed by the labour Court in the I.D. No.45 of 2001 raised by the writ petitioner. Since the writ petitioner was found to be truly and seriously sick during the relevant period of his absence from duty, he cannot be accused of lacking any justification for his absence from reporting to duty. If running staff like conductors and drivers do not turn up for resuming duty on the next working day, the operations of the corporation will be badly affected. Additional manpower may not be readily available for the corporation to continue its fleet. As the situation may even bring about cancellation of certain bus services, such cancellations at the last minute will cause innumerable hardships to the commuter public apart from causing irreparable damage to the reputation of the corporation itself. The credibility of the institution will receive a beating. Therefore, to the extent of failure to intimate the reasons for his absence to the Depot Manager, the writ petitioner deserves to be penalized. Since he has got justifiable reasons to stay away from duty, termination from employment is not the appropriate of the penalties. Therefore, the petitioner is directed to be reinstated to duty as a conductor, he will however be not entitled for any back wages or attendant benefits for the period between the date of his removal to the date of his reinstatement now. He will not be entitled to draw his next two increments as a punishment, without cumulative effect. The period of absence shall not count even for terminal benefits. This itself suffice in the circumstances of the case. The writ petition is accordingly disposed of to the extent indicated supra. No costs. _____________________________ JUSTICE NOOTY RAMAMOHANA RAO December 03, 2009 KSH