THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.26500 OF 2008 DATED NOVEMBER, 2010 BETWEEN P.Sanjeeva Rao … Petitioner And The Presiding Officer, Labour Court-II, Chandravihar, Hyderabad. And Another. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.26500 OF 2008 ORDER: Aggrieved by the NIL Award dated 23.11.2007 passed by the Labour Court-II, Hyderabad, in I.D.No.42 of 2005, the unsuccessful petitioner therein is before this Court. The petitioner entered the service of the Andhra Pradesh State Road Transport Corporation (APSRTC) as a Conductor in the year 1988. His services were regularized with effect from 01.06.1990. He absented himself from duty from 19.12.2004 to 17.01.2005. By order dated 22.02.2005, the APSRTC removed him from service. His appeal met with failure on 25.05.2005. He thereupon approached the Labour Court by way of the subject I.D. By the NIL Award dated 23.11.2007, the Labour Court upheld his removal from service and dismissed the I.D. Hence, this writ petition. Sri V.Narasimha Goud, learned counsel for the petitioner, contended that his client’s removal from service is vitiated on grounds more than one. He submitted that the Labour Court failed to exercise its jurisdiction under Section 11-A of the Industrial Disputes Act, 1947 as per settled norms. Sri Anand Shinde, learned counsel representing the standing counsel for the APSRTC, on the other hand, sought to support the APSRTC’s order dated 22.02.2005 removing the petitioner from service which found approval with the Labour Court. The petitioner was subjected to disciplinary proceedings under charge sheet dated 17.01.2005 which reads as follows: “ALLEGATION: It is alleged and reported by STI/T12 Dubbak, that you have absented for your duties from 19.12.2004 to 17.01.2005 without any prior intimation or without any prior sanction of leave, causing dislocation of services and thereby inconvenience to the travelling public, besides loss of revenues to the Corporation and bringing bad image to the Organisation. Based on the above allegations, the following charge is levelled against you. CHARGE NO.1: ‘For your unauthorized absence for duties, from 19.12.2004 to 17.01.2005 which constitutes misconduct under Regulation No.28(xxvii) of APSRTC Employees (Conduct) Regulations, 1963.’ Please submit your explanation within seven days, from the date of receipt of this charge sheet, failing which it shall be assumed that you have accepted the charge, and further action will be taken, basing on the evidences available on record. Please acknowledge the receipt.” By report dated 17.01.2005 the Enquiry Officer, while referring to the unauthorized absence of the petitioner from 19.12.2004 to 16.01.2005 in the subject caption of the report, stated thereunder that it was a case of chronic absenteeism of the petitioner and dealt with not only the petitioner’s absence between the stipulated dates but also various other absences. Pertinent to note, the said absences were not made the subject matter of the charge sheet. Having transgressed his warrant, the Enquiry Officer returned a positive finding against the petitioner. Basing thereupon, the APSRTC issued a ‘show cause Notice for removal from service’ on 20.01.2005 wherein two charges were levelled against the petitioner. In addition to the charge contained in the charge sheet, a second charge was included and reads as under: “CHARGE No.2: For your irregular attendance for duties.” This second charge was held proved by extracting the observations of the Enquiry Officer in his report. It is on the basis of these proceedings that the petitioner was removed from service under order dated 22.02.2005. The approach adopted by the APSRTC is unorthodox to say the least and wholly illegal. The charge levelled against the petitioner was with regard to a specific absence between two particular dates. The Enquiry Officer went beyond the said charge and dealt with the misconduct of chronic absenteeism, which was not levelled against the petitioner in the charge sheet. Based on this irregular enquiry report, the disciplinary authority issued a Show Cause Notice including a fresh charge, viz. ‘irregular attendance from duty’, which did not figure either in the charge sheet or in the enquiry proceedings. This clearly shows that the APSRTC resorted to building up its case from stage to stage, which is not only irregular but also prejudicial to the workman involved. Such a procedure has no legal sanction and is utterly opposed to the rule of law. The Labour Court surprisingly overlooked this aspect and found fault with the petitioner for not examining a Doctor to prove his alleged ill-health during the period that he remained absent. Opining that the petitioner had absented himself without applying for leave and obtaining prior sanction leading to violation of Regulation 11 of the APSRTC Employees (Leave) Regulations, 1963, which requires an employee who is unable to attend duties by reason of illness to produce a sick certificate within 48 hours, the Labour Court found the action taken against him to be appropriate and justified. In this regard, it also placed reliance on the past record of the petitioner which was placed before it by the APSRTC. The approach of the Labour Court in this regard was equally unsustainable being opposed to the facts on record and the settled legal position. The report dated 17.01.2005 of the Deputy Superintendent (Traffic), Dubbak Depot of the APSRTC, clearly manifested that the petitioner submitted a sick certificate on 20.12.2004 itself. No doubt, the said certificate was said to have been issued by a private hospital. However, this fact evidences that the petitioner complied with the requirement of Regulation 11 of the APSRTC Employees (Leave) Regulations, 1963 by submitting his sick certificate within 48 hours. Reference in this regard may be made to the Judgment of this Court in DEPOT MANAGER, APSRTC, BUS DEPOT, NARAYANKHED, MEDAK DISTRICT V. R.BHEEMAIAH[1], wherein a learned Judge of this Court observed: “5. ……… 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. ………” That being so, the APSRTC, having failed to refer the case of the petitioner to its own Medical Board, cannot find fault with the petitioner once he submitted a sick certificate one day after his absence from duty commenced. The record also establishes that the petitioner again sent a sick certificate on 05.01.2005 but the same did not evoke any response from the APSRTC. These facts speak against the APSRTC and clearly establish its own inaction in the case. The petitioner seems to have reported for duty on 17.01.2005 and on the very same day he was issued a charge sheet and subjected to an enquiry. The manner in which this enquiry progressed has already been dealt with supra. It is on the basis of this irregular procedure and erroneous appreciation of the record that the APSRTC resorted to remove the petitioner from service. The Labour Court, when seized of the matter in exercise of jurisdiction under Section 11-A of the Industrial Disputes Act, 1947, ought not to have placed reliance on the past record of the petitioner when the same was not put to him either during the enquiry or by the disciplinary authority. The prejudice caused by such past record upon the mind of the Labour Court is manifest. Further, the Labour Court did not go into the issue as to the proportionality of the punishment by confining the charge of absence to the dates stipulated in the charge sheet. I n CHAIRMAN-CUM-MANAGING DIRECTOR, COAL INDIA LTD. v. MUKUL KUMAR CHOUDHURI[2], the Supreme Court observed: “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.” Thus, for reasons more than one grounded both in law and on facts, the Award of the Labour Court upholding the removal of the petitioner from service cannot be sustained and is accordingly set aside. The APSRTC is directed to reinstate the petitioner in service with continuity of service and attendant benefits. In so far as the relief of back wages is concerned, it is pertinent to note that the petitioner stated before the Labour Court that since his removal from service he could not get any alternate employment or source of income to eke out his livelihood and maintain his family. The APSRTC failed to lead any evidence to rebut this factual averment. As the procedure followed by the APSRTC in the course of the disciplinary proceedings is held to be unsustainable being contrary to the rule of law, the petitioner’s removal from service stemming therefrom would be void ab initio. The petitioner is therefore entitled to full back wages. The Writ Petition is allowed but in the circumstances, without any order as to costs. ____________________ SANJAY KUMAR, J. _______ NOVEMBER, 2010. VGSR [1] 2010 (4) ALD 193 [2] 2009 LAB. I. C. 3890