IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SIXTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No : 19606 of 1999 BETWEEN: The Depot Manager, APSRTC, Simhachalam Depot, Visakhapatnam District. ..... PETITIONER AND 1 The Industrial Tribunal-cum-Labour Court, Rep.by its Presding Officer. Visakhapatnam. 2 N.S.Kiran (died), EX-Driver of Simhachalam depot. 3 Smt.N.Venkata Ranganayaka Lalithamba, W/o.Late N.S.Kiran, 10.39.1,Vepagunata (post), Visakhapatnam-530027. 4 Akash Sainath S/o.Late N.S.Kiran,10-39-1, Vepagunata (Post), Visakhapatnam-530027. 5 Smt N.Sitabirat, M/o.N.S.Kiran,10-39-1, Vepagunata (Post), Visakhapatnam-530027. .....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, particularly one in the nature of Writ of Certiorari, calling for the records relating to I.D.No.392 of 1995 dated 19-1-1999 of the 1st respondent and quash the same and the said I.D is published in G.O.Rt.No.440 dt.15-4-1999 and pass such other order or orders. Counsel for the Petitioner : K.MADHAVA REDDY(SC FOR APSRTC) Counsel for the Respondents : MR.V.NARASIMHA GOUD The Court made the following : ORDER : This writ petition is filed by the Andhra Pradesh State Road Transport Corporation (APSRTC), through their Depot Manager, Simhachalam Depot of Visakhapatnam District, challenging the award dated 19th January 1999, passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam, in I.D.No.392 of 1995. 2. The 2nd respondent herein was the Driver in APSRTC, attached to Simhachalam Depot. He was temporarily appointed with effect from 18.11.1986 and his services were regularized from 1st August 1997. On the ground that he was unauthorisedly absent from duty with effect from 01.03.1992, during his life time, disciplinary proceedings were initiated and he was issued with the charge sheet dated 20.07.1992, framing the following charge : “For having absented unauthorisedly to your charted duty of 15.25 hours Route No.5 on 1-3-1992 and being continued to absent to the duty till date without obtaining leave, without any reasonable cause and without permission from your immediate Supervisor or from the undersigned resulting in dislocation of services, inconvenience to the travelling public besides loss of revenue to the Corporation which constitutes misconduct under Regulation 28(xxxvii) of A.P.S.R.T.C. Employees (Conduct) Regulations, 1963.” Though explanation was filed by the 2nd respondent-workman for the above said charge, but as the same was not accepted by the employer, and after following the necessary procedure of conducting inquiry, he was removed from service by an order dated 12.10.1992. Though the workman has filed departmental appeal before the appellate authority, his appeal was also rejected by an order dated 24th August 1995. As against the same, he has raised an industrial dispute by filing an application under Section 2-A(2) of the Industrial Disputes Act, 1947, which is numbered as I.D.No.392 of 1995 on the file of the Industrial Tribunal-cum-Labour Court, Visakhapatnam. Before the Labour Court, no oral evidence was let in by the parties, but however, documentary evidence was filed on behalf of the workman as well as the management. Exs.W-1 to W-7 were marked on behalf of the workman, and Exs.M-1 to M-11 were marked on behalf of the management. The Industrial Tribunal, accepting the defence of the workman to the effect that he has already tendered his resignation before his absence from 01.03.1992, it has reversed the findings of the inquiry officer and set aside the order of removal. Further, in view of the fact that the workman had died on 5th of August 1998 during the pendency of the proceedings, the Tribunal has ordered to treat as if the workman was in service upto 5th of August 1998 and ordered for payment of backwages to the legal representatives of the deceased from the date of removal to the date of death i.e. upto 5th August 1998, and also further directions were issued to extend the benefit of compassionate appointment to one of his family members. 3. In this writ petition, it is submitted by the learned Standing Counsel appearing for the petitioner-Corporation that merely because the workman has tendered resignation, he had no authority just to proceed on leave in the absence of grant of any leave or accepting the resignation. It is submitted that as much as his absence from 01.03.1992 was unauthorized, inspite of the same, the Tribunal, misconstruing the Conduct Regulations, has ordered for reinstatement. It is further submitted that in any event, in view of the limited jurisdiction conferred on the Industrial Tribunal, it has also exceeded its jurisdiction by directing the petitioner-employer to extend the benefit of compassionate appointment. On the other hand, Sri V.Narasimha Goud, learned counsel appearing for the legal representatives of the workman, submits that in view of the Conduct Regulations, only one month notice was required to be given, and in that view of the matter, after submitting the resignation, the petitioner did not attend to his duties. It is submitted that in view of submission of resignation by the workman, his absence from the date of resignation cannot be termed as unauthorized absence. It is further submitted that in view of the directions issued by the Tribunal, and the order passed by this Court in this writ petition on 29th September 1999 in WPMP.No.24549 of 1999, the 3rd respondent is appointed as a Shramik and she has already completed about ten years of service. It is submitted that any interference at this stage will cause undue hardship to the legal representatives of the deceased workman. 4. Before dealing with the various contentions of the learned counsel for the parties, I deem it appropriate to refer to certain Regulations, which will have a bearing on the issue involved in this writ petition. The service conditions of the employees of APSRTC are governed by the regulations titled as “APSRTC Employees (Service) Regulations, 1964”, framed under Section 45(1) of the Road Transport Corporation Act, 1950. There is yet another set of regulations titled as “APSRTC Employees (Conduct) Regulations, 1963”, which deals with the conduct of the employees including the general provisions dealing with misconduct. Regulation 6(B) of Service Regulations deals with determination of service. Regulation 6(B)(1) contemplates for one month notice on the part of the employee to the Corporation for determination of service. In case of breach of such clause for giving notice as contemplated under Regulation 6(B)(1), 6(B)(2) provides for payment of compensation. But however, so far as Conduct Regulations are concerned, Clause 28 of the Regulations deals with the acts or omissions which shall be treated as misconduct. Under Regulation 28(xxvii), absence without leave without reasonable cause and absence without permission, is a misconduct. Though in the domestic inquiry, the inquiry officer has recorded a finding that the deceased-employee had unauthorizedly absented from duty, but without examining the scope of the Conduct Regulations, the Tribunal, by merely recording a finding that even in case one month notice is not given, the employer can have lean upon the terminal benefits, has set aside the order of removal. Even from the admitted facts, it is not in dispute that pursuant to tendering of resignation by the deceased employee, at no point of time, his resignation was accepted. In that view of the matter, it is a clear case of unauthorized absence from 01.03.1992 onwards. The effect of Regulation 6(B) of Service Regulations, is independent only for determination of service, but however, so far as misconduct is concerned, as much as resignation tendered by the workman was not accepted, and inspite of the same, as he has proceeded on leave from 01.03.1992, it is a misconduct within the meaning of Regulation 28 (xxvii) of the Conduct Regulations. In that view of the matter, the reasoning recorded by the Tribunal for setting aside the order of removal, is wholly erroneous. Therefore, the question of treating as if the workman was in service up to 5th August 1998, will not arise. On the proven misconduct, the workman was removed from service, and as much as the Tribunal has not considered the relevant Regulations before judging the validity of the removal order, the workman was not entitled for any benefits either on account of backwages or any other benefits. Even the further argument of the learned Standing Counsel appearing for the petitioner-Corporation assailing the direction of the Tribunal to extend the benefit of compassionate appointment, also merits acceptance. The limited scope and jurisdiction vested on the Tribunal is with regard to validity of the removal order, but the Tribunal has exceeded its jurisdiction by directing to extend the benefit of compassionate appointment to one of the family members of the deceased-employee. But at the same time, it is also to be examined that in view of the interim orders passed by this Court in the present writ petition and in compliance to the directions issued by the Tribunal, it is stated that the 3rd respondent was given compassionate appointment as a Shramik in the year 1999, and she is being continued in service for the last about ten years. In that view of the matter, and in view of the peculiar circumstances of the case, as the workman had died during the pendency of the proceedings, and the wife of the deceased was appointed about ten years back, I deem it appropriate to direct the respondents not to disturb the service of the appointee, particularly after this length of time. 5. For the aforesaid reasons, the award of the Tribunal is set aside, but however, it is made clear that the 3rd respondent is entitled to continuance of service as per the terms and conditions of her appointment. 6. Writ petition is allowed to the extent indicated above. No order as to costs. ______________________ R. SUBHASH REDDY, J 26th November 2008 ajr