IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FIFTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT HONOURABLE SRI JUSTICE C.V. RAMULU W.P.No.23133 OF 2002 Between: M.Vara Prasad Rao ..... PETITIONER AND The Chairman cum Presiding Officer, Industrial Tribunal cum Labour Court, Anantapur and another. .....RESPONDENT(S) HONOURABLE SRI JUSTICE C.V. RAMULU W.P.No.23133 OF 2002 ORDER: This writ petition is directed against the award made in I.D.No.182 of 1999, dated 18-01-2002, on the file of the learned Chairman-cum- Presiding Officer, Industrial Tribunal-cum-Labour Court, Anantapur, whereunder, the petition, filed by the workman under Section 2 (A) (2) of the Industrial Disputes Act (for brevity ‘the Act’) seeking to set aside the removal order dated 14-01-1999 passed by the respondent and direct the respondent to reinstate the workman into service with all other consequential benefits, was allowed partly, directing the respondent to appoint him as fresh conductor. 2. Petitioner is the workman. Respondent No.2 is the Management. 3. It appears petitioner while working as a Conductor in A.P.S.R.T.C. he was issued with a charge sheet, dated 10-09-1998 enumerating the following charges: 1. “For having unauthorisedly absented for your charted duty of 9.00 hours, Proddatur-Moulicheruvu service on 07-08-1998 and remained absent from there onwards causing inconvenience to the traveling public and loss of revenue to the corporation due to cancellation/dislocation of service, which constitutes misconduct under Reg.28 (XXVIII) of A.P.S.R.T.C. Employees (conduct) Reg-1963”. 2. “For having maintained very irregular attendance causing much inconvenience to the traveling public which constitutes misconduct under Reg-28 (XXVIII) of A.P.S.R.T.C. Employees (conduct) Reg-1963.” 3. “For having left head quarters without the permission.” Petitioner submitted his explanation on 07-08-1998. Having not satisfied with the explanation submitted by the petitioner, an enquiry was ordered and the enquiry officer submitted a report holding the petitioner guilty of the charges. On the basis of the enquiry officer’s report and on his own examination, respondent No.2 passed orders dated 14-01-1999 removing the petitioner from service. Aggrieved thereby, the petitioner raised a dispute under Section 2 (A) (2) of the Act before the Labour Court. 4. It was the case of the petitioner, before the Labour Court, that he was appointed in the year 1984 and his services were regularized with effect from 01-07-1987 and he had put in a clean record of service. On 07-08-1998, he fell sick due to Typhoid fever and he could not attend to his duties. Later he submitted a sick certificate and requested for a long leave, which was rejected. Thereafter, he was attacked with Jaundice and advised to take bed rest. However, after issuing charge sheet, he submitted explanation. The same was not considered by the 2nd respondent and ultimately he was removed from service. The enquiry was not properly conducted and absolutely there was no evidence to hold the petitioner guilty of the charges. Even otherwise, the removal from service for such trivial misconduct of absenteeism in view of sickness is highly disproportionate. 5. Respondent No.2 filed counter affidavit denying the allegations made by the petitioner and further stated that the domestic enquiry was conducted as per procedure in vague and absenteeism of the petitioner is a matter of record and the question of reinstatement does not arise. The petitioner never approached the 2nd respondent and he did not submit any valid medical certificate for the purpose of treating absenteeism as leave on medical grounds. The 2nd respondent also contended that the past record of the petitioner was also very bad. Previously, he was removed from service and his annual increments were also deferred on several occasions on account of his absenteeism. The removal order passed on 14-01-1999 does not deserve any interference at the hands of the Labour Court. 6. None were examined on behalf of both the parties nor any documents were marked. 7. On the basis of the record available, the Labour Court came to the conclusion that the enquiry was properly conducted and the charges were proved, but however, the Management had imposed extreme penalty of removal from service for his unauthorized absence which appears to be harsh and disproportionate to that of the mis-conduct and accordingly, by exercising its powers under Section 11-A of the Act, set aside the removal order and directed fresh appointment of the petitioner as Conductor and it was further made clear that the petitioner is not entitled to any monitory or service benefits for the past service and the 2nd respondent was also directed to defer six annual increments with cumulative effect after issuing fresh appointment. Aggrieved thereby, the present writ petition is filed. 8. The learned counsel for the petitioner strenuously contended that though absenteeism is a matter of record, but the disciplinary authority has not taken into consideration the circumstances under which the petitioner had absented for duty and though he submitted an explanation, the same was not taken into consideration and that the 2nd respondent has taken a peculiar stand that if really the petitioner was sick, he could have admitted in R.T.C. Dispensary at Kadapa, and from there he could have gone to R.T.C. Hospital, Tarnaka, Hyderabad, but he did not do so, therefore, any explanation submitted by him cannot be taken into consideration. The Labour Court has taken the circumstances into consideration, but denied the continuity of service. The petitioner had put in 26 years of long service and if that is denied, he would not get any benefit at the end of the day. Therefore, the Labour Court ought to have directed reinstatement with continuity of service etc. Instead of doing that the Labour Court while exercising powers vested under Section 11-A of the Act denied past service which is arbitrary and illegal. 9. The learned counsel for the 2nd respondent supported the award passed by the Labour Court and submitted that since the mis- conduct of the petitioner being grave in nature, the Labour Court ought to have dismissed the claim petition. However, by taking a lenient view, it has passed an award ordering fresh appointment of the petitioner which cannot be said to be either arbitrary or illegal and that the petitioner does not deserve for any further relief from this Court. 10. I have given earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned order and other material made available on record. 11. Admittedly, the mis-conduct of absenteeism is a matter of record. The petitioner absented for 73 days continuously. Though he gave an explanation and stated that he was suffering from typhoid fever, which ultimately resulted in Jaundice etc., no acceptable evidence was placed before the disciplinary authority. Therefore, the disciplinary authority passed an order of removal from service. However, the Labour Court took a lenient view of the matter even while noticing the fact that the petitioner was removed from service for the similar mis-conduct earlier. 12. In this regard, the learned counsel for the petitioner relied upon judgment rendered in Chairman-cum-Managing Director, Coal India Ltd., & Another Vs. Mukul Kumar Choudhuri & Others[1] and drawn attention of the Court to para-26, which reads as under: “26. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company’s Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No.1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months.” and submitted that the allegation, levelled against the petitioner that earlier on the same ground he was removed from service, cannot be taken into consideration since he was reinstated into service on the appeal filed by him. 13. In the light of the judgment of the Apex Court in Mukul Kumar Choudhuri’s case (supra 1) and also in view of the fact that the petitioner had put in more than 26 years of service as of today, I am of the opinion that the Labour Court while exercising its powers under Section 11-A of the Act, did not exercise the discretionary powers properly. The Labour Court ought not to have directed deferment of six annual increments with cumulative effect after having ordered fresh appointment of the workman. This in fact would amount to denying the six annual increments with cumulative effect which would result in heavy financial loss to the petitioner while denying the back wages and other attendant benefits. The Labour Court ought to have directed reinstatement with continuity of service but without any back wages and without any attendant benefits. Therefore, I am of the opinion that the Labour Court was not right, in a case of this nature, directing deferment of six annual increments with cumulative effect after directing fresh appointment. 14. For the foregoing reasons, the award passed by the Labour Court is modified to the following effect: The respondent-Management is directed to reinstate the petitioner with continuity of service, but without any back-wages and without any attendant benefits. His increments from the date of reinstatement shall be restored notionally with effect from 01-09-2010. It is further made clear that the petitioner is not entitled to any arrears of the annual grade increments, which was denied after his fresh appointment in pursuant to the award passed by the Labour Court. 15. With the above modification, the writ petition is disposed of. There shall be no order as to costs. _________________ August 25, 2010 kvr [1] 2009 LAB.I.C. 3890 (S.C.)