*THE HON’BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO: 2985 OF 2006 % 24-07-2008 # APSRTC, rep. By its Divisional Manager, & another …Petitioner and $ The Presiding Officer, Labour Court-III, Hyderabad and another …Respondents ! COUNSEL FOR PETITIONERS: Sri V.T.M. Prasad ^ COUNSEL FOR RESPONDENTS: G.P. for Labour, Sri V. Narasimha Goud < Gist: > Head Note: ? CITATIONS: 1. 2000 SCC (L&S) 825 THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No. 2985 OF 2006 ORDER: The 2nd respondent (for short “the respondent”) was employed as a conductor in the APSRTC. A charge sheet, dated 29.4.1999, was issued to him, alleging certain irregularities, in the matter of accounting the bundles of tickets of various denominations. He was also placed under suspension. Domestic enquiry was ordered, but the respondent did not participate in it. Complaining that the subsistence allowance was not paid and that documents were not supplied, the respondent approached this court, more than once. Ultimately, through order dated 12.2.2002, the 2 nd petitioner removed the respondent from service. Appeal ﬁled against the same, before the 1st petitioner, was also rejected on 9.1.2003. Thereupon the respondent ﬁled I.D.No.8 of 2003, before the Labour Court-III, Hyderabad. Through its award dated 7.2.2005, the Labour Court allowed the I.D., setting aside the order of removal, and directed reinstatement of the respondent, with continuity of service, full back wages, and attendant benefits. The same is challenged in this writ petition. Learned counsel for the petitioner submits that the Labour Court did not deal with the matter on merits, though very serious charges were framed and proved against the respondent. He contends that the Labour Court had set aside the order of removal, only on the ground that subsistence allowance was not paid in time, and in view of the fact that the said issue was the subject matter of various proceedings before this court, it was totally outside the scope of the powers of the Labour Court. Sri V. Narasimha Goud, learned counsel for the respondent, on the other hand, submits that his client was disabled from participating in the domestic enquiry, on account of non-payment of subsistence allowance, and following the judgment of the Supreme Court in JAGADAMBA PRASAD SHUKLA v. STATE OF UP [1], the Labour Court had granted the relief. Various charges were framed against the respondent, in relation to the maintenance of accounts of ticket blocks. Almost simultaneously, he was placed under suspension. He initially approached this court, by ﬁling W.P.No.13917 of 1999, alleging that certain documents were not supplied to him. He ﬁled W.P.No.11789 of 2000, alleging that subsistence allowance was not paid. That writ petition was disposed of on 11.9.2000, with certain directions. C.C.No.308 of 2001 was ﬁled, stating that directions were not complied with. While disposing of the contempt case, this court took note of the fact that the enquiry was concluded, report thereof was submitted, and ultimately, it gave liberty to the 2nd petitioner herein, to pass ﬁnal orders in the disciplinary proceedings. Accordingly, a show-cause notice was issued and that, in turn, was challenged in W.P.No.1595 of 2002. Against the ultimate order of removal from service, dated 12.2.2002, the respondent approached the Labour Court. The only ground, on which the Labour Court had set aside the order of removal, is that there was delay in payment of subsistence allowance, and the employee cannot be expected to participate in the disciplinary proceedings, without payment of the said amount. He found fault with the ex parte report of the enquiry officer. It is no doubt true that in Jagadamba Prasad Shukla’s case1, the Supreme Court held that in case an employee is not paid the subsistence allowance, and thereby incapacitated to participate in the disciplinary proceedings, the enquiry report cannot be sustained. In the instant case, the respondent approached this court on number of occasions, and on the basis of the directions issued at various points of time, he was paid the subsistence allowance. Either while receiving the amount, or while canvassing his grievance, he did not plead that the domestic enquiry is vitiated. On the other hand, this court directed the 2nd petitioner to pass ﬁnal orders, after taking note of the fact that the report was submitted. Therefore, if at all the respondent was of the view that the enquiry is vitiated, on account of non- payment of subsistence allowance, he ought to have canvassed such a ground, before this court. Once the report of the enquiry oﬃcer was taken note of and permission was accorded to the 2nd petitioner, to proceed to pass ﬁnal orders, it was totally impermissible for the Labour Court, to go into that aspect. Unfortunately, in this case, the Labour Court had set aside the order of removal, only on that ground, and did not undertake discussion on any other aspect. This court is of the view that the Labour Court had exceeded its jurisdiction, in ﬁnding fault with the report of the enquiry oﬃcer, on the ground that the subsistence allowance was not paid. Therefore, the writ petition is allowed, and the impugned order is set aside. The mater is remanded to the Labour Court, and it is directed that the question as to whether the report of the enquiry oﬃcer is vitiated, on account of non-payment of subsistence allowance, shall not be taken into account by the Labour Court, since that was dealt with by this court, in the earlier set of proceedings. The matter shall be examined on other aspects, and it shall be disposed of, within a period of two months, from the date of receipt of a copy of this order. There shall be no order as to costs. ________________ 24th July 2008 Note: L. R. copies to be marked. (B/o) PAN [1] 2000 SCC (L&S) 825