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WP No.29923 of 2017
HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION NO. 29923 OF 2017
ORDER:
This writ petition is filed for the following relief: "...to issue an appropriate Writ or direction, particularly one in the nature of writ of 'certiorari' to quash the impugned award dated 27.04.2017 passed in I.D No. 77 of 2015, published on 12.07.2017 on the file of the Industrial Tribunal-cum-Labour Court at Warangal in upholding the order of removal from service as illegal and unjust and to consequently, the petitioner prays this Court to direct the respondents to reinstate the petitioner into service along with all consequential benefits..."
2. It has been contended by the petitioner that he joined as a conductor in the respondents' Corporation on 03.04.1987 and his services were regularised w.e.f. 01.04.1988, but he was removed from service on 09.07.2008 by the 1st respondent on the charge that he was absent from his duties from 17.02.2008 to 11.03.2008. Aggrieved by the same, he preferred an appeal before the Appellate Authority on 16.05.2013 and the same was rejected vide orders dated 04.06.2013 on the ground that the appeal was time barred. 2.1 It is further contended by the petitioner that he preferred a revision under Regulation 29 of APSRTC, C.C & A Regulations, 1967 before the Regional Manager, Warangal, and the same was dismissed 2 RRN,J WP No.29923 of 2017 on merits vide orders dated 30.08.2013. Subsequently, the petitioner preferred a review before the Executive Director and the same was dismissed vide orders dated 20.01.2014. Aggrieved by the same, the petitioner raised I.D No.77 of 2015 before the Industrial Tribunal- cum-Labour Court, Warangal, by setting forth all contentions which are as follows:
i) The 1st respondent issued a charge sheet dated 14.03.2008 alleging that the petitioner's absence from duty from 17.02.2008 to 11.03.2008 was unauthorised.
ii) The charge sheet was issued based on the report dated 11.03.2008 submitted by Superintendent(T) of the 1st respondent but the 1st respondent failed to appreciate that the Superintendent(T) clearly informed about the petitioner's sickness duly submitting sick certificate issued by the Medical Officer of MGM Hospital certifying that the petitioner was not able to discharge his duties. 2.2 Upon the respondents contesting the issue before the Labour Court, an Award was passed by the Labour Court in I.D 77 of 2015 vide Award dated 27.04.2017 against the petitioner, confirming the removal of the petitioner. Hence, the present Writ Petition.
3. The respondents filed counter denying all the material contentions of the petitioner and contended that the petitioner was a 3 RRN,J WP No.29923 of 2017 chronic absentee and several punishments were imposed on him for having been involved in misconduct cases viz. censured (5) times, increments postponed (9) times, suspension (1) time, removed (3) times. The petitioner was very irregular in his duties by way of leave, sick and absenteeism and in the present case, the petitioner was absent for his duties from 17.02.2008 to 11.03.2008, as such, he was charge-sheeted on 14.03.2008. An opportunity was given to the petitioner to explain himself, but upon not being convinced, the then DM, Janagaon ordered a domestic enquiry into the charges by duly nominating the Assistant Manager (T)/JN as enquiry officer. The petitioner participated in the enquiry and admitted the fact of being absent from duties due to the reason that he was suffering from cervical problem and was undergoing treatment in a private Hospital.
4. It is further contended by the respondents that upon completion of the enquiry, and the petitioner receiving a report of the enquiry vide letter dated 16.05.2008, the petitioner did not choose to raise any objections. Hence, concurring with the report of the enquiry officer, the respondents came to a conclusion that the charges against the petitioner were proved beyond reasonable doubt and the petitioner committed serious misconduct. Accordingly, the respondents came to a conclusion that the punishment of removal of the petitioner from service is just and proper. A show cause notice 4 RRN,J WP No.29923 of 2017 dated 12.06.2008 was sent to the petitioner calling for explanation as to why the punishment of removal shall not be imposed, whereas the petitioner did not submit any explanation. Thus, upon careful examination, the respondent imposed the penalty of removal from service to the petitioner vide proceedings dated 09.07.2008. 4.1 It is further contended by the respondents that the petitioner preferred an appeal before the Deputy Chief Traffic Manager, Warangal, on 16.05.2013 after a lapse of three years and the same was rejected as time-barred by the Deputy Chief Traffic Manager, Warangal, vide proceedings dated 04.06.2013. Aggrieved by the same, the petitioner filed a review petition which was also rejected on merits by the Regional Manager, Warangal, vide proceedings dated 30.08.2013. The petitioner then preferred a mercy petition and the same was rejected on merits by the Executive Director, Karimnagar Zone vide proceedings dated 20.01.2014. Upon being aggrieved by the above, the petitioner filed I.D. No.77 of 2015 before the Labour Court, Warangal, and the Court below was pleased to dismiss the same vide orders dated 27.04.2017 and the Government vide G.O.Rt.No.492 dt.21.06.2017 published the Award of the Industrial Tribunal-cum-Labour Court. Accordingly, prayed to dismiss the Writ Petition.
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4.2 It is the further contention of the respondents that had it been the petitioner was suffering from any medical condition/ailments, he ought to have approached the RTC Hospital, Tarnaka, Hyderabad and not produce supporting certificates from private hospitals to cover up his absence. The petitioner was removed from service on an earlier occasion on similar grounds of misconduct in the year 2005 but was reinstated into service by the appellate authorities in the January, 2008 on humanitarian grounds, but within the next two months itself, he again resorted to unauthorised absence and misconduct, as such, the authorities had no other way but to remove him from service for the reasons stated, including that the respondent corporation suffered a loss of revenue due to the acts of the petitioner. Accordingly, prayed to dismiss the writ petition.
5. Learned counsel for the petitioner submitted that the Court below failed to appreciate that there was reasonable cause for the absence of the petitioner and that the petitioner submitted a private sick certificate issued by the MGM Hospital, Warangal which is also a Government General Hospital. Moreover, when the Labour Court came to a finding that the I.D. is not maintainable in law on the ground that the petitioner did not approach the Labour Court within (3) years from the date of removal, it ought not to have addressed any findings on merits of the case.
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6. Learned counsel for the petitioner further contended that the punishment of removal from service is highly disproportionate to the gravity of the charge and the very purport of inserting Sec.11-A of the I.D. Act was defeated. Further, there was no delay in raising the I.D. before the Labour Court as it is deemed that the delay is condoned as the Revisional Authority decided the matter on merits. Hence, prayed to allow the writ petition.
7. Learned counsel for the petitioner relied upon the following judgments in support of his stand:
i) N. Balakrishna vs. Security Officer, APSRTC1
ii) Chinta Muniswamy vs Depot Manager, Andhra Pradesh2
iii) K. Prasad vs. Managing Director, APSRTC, Hyderabad 3
8. Learned counsel for the respondents contended that the petitioner was a chronic absentee and several punishments were imposed on him for having been involved in misconduct cases viz. censured (5) times, increments postponed (9) times, suspension (1) time, removed (3) times. The petitioner was very irregular in his duties by way of leave, sick and absenteeism. A show cause notice dated 12.06.2008 was sent to the petitioner calling for explanation as 1 MANU/AP/0193/2003 2 MANU/AP/0945/2015 3 MANU/AP/0399/1999 7 RRN,J WP No.29923 of 2017 to why the punishment of removal shall not be imposed, whereas the petitioner did not submit any explanation. Thus, upon careful examination, the respondent imposed the penalty of removal from service to the petitioner vide proceedings dated 09.07.2008. 8.1 The counsel for the respondents further contended that had it been the petitioner was suffering from any medical condition/ailments, he ought to have approached the RTC Hospital, Tarnaka, Hyderabad and not produced supporting certificates from private hospitals to cover up his absence. The petitioner was removed from service on an earlier occasion on similar grounds of misconduct but was reinstated into service by the Appellate Authorities on humanitarian grounds, but within the next two months itself, he again resorted to unauthorised absence and misconduct, as such, the authorities had no other way but to remove him from service for the reasons stated, including that the respondent Corporation suffered a loss of revenue due to the acts of the petitioner. Accordingly, prayed to dismiss the writ petition.
9. Heard Sri V. Narasimha Goud, learned counsel appearing for the petitioner, and Sri B. Mayur Reddy, learned Standing counsel appearing for the respondents. Perused the record.
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10. It is evident from the material placed by the parties that though the petitioner was removed from service in the year 2008, he filed an appeal before the Appellate Authority only in the year 2013 i.e after the lapse of more than four years and the same was rejected on the ground that the appeal was time-barred. The petitioner filed a review and mercy petition and the same were rejected. Unsuccessfully the petitioner raised I.D. No. 77 of 2015 before the Labour Court, wherein the Court elaborately discussed the issue on hand and dismissed the claim of the petitioner.
11. The petitioner contends that that the period of limitation as set out in Section 2A(3) of the Industrial Disputes Act that the employee/workman who was dismissed/removed/retrenched from service shall approach the Industrial Tribunal or the Labour Court within a period of 3 years from the date of such dismissal/removal/retrenchment and there was no delay in raising the I.D. before the Labour Court as it is deemed that the delay is condoned as the Labour Court decided the matter on merits. As the Labour Court itself decided the matter on merits, there is no need to discuss with regard to delay.
12. It is evident from the material available on record that the petitioner was issued a charge-sheet on 14.03.2008 and the petitioner submitted his explanation on 29.03.2008, as the same was 9 RRN,J WP No.29923 of 2017 not convincing, an enquiry was conducted and the Enquiry Officer submitted his findings on 27.04.2008 holding that the acts of the petitioner constitute misconduct in terms of Regulation 28(xxvii) of APSRTC Employees (Conduct) Regulations, 1963. The 1st respondent came to the conclusion to impose the punishment of removal of the petitioner from service and issued a show cause notice for removal from service on 12.06.2008, but the petitioner has failed to submit his explanation to such notice, which would mean that he accepted his fate. The petitioner had every opportunity to challenge the removal order in time, but was negligent in pursuing his remedies and only after lapse of more than 4 years he approached the appropriate authorities without any cogent reasons.
13. It is also pertinent to mention here that the petitioner claims that he was sick from 17.02.2008 to 11.03.2008 and as he was fit for duty from 12.03.2008, he submitted sick and fitness certificate, but he was not allowed to join duty despite the sick certificate submitted by him was obtained from a Government Hospital itself and claimed that the Management ought to have referred the case to the competent Medical Officer for investigation, advice and report. In support of his contention, he relied upon the decision in N. Balakrishna (supra); wherein it was held that the action of the respondent in not referring the case to a competent Medical Officer 10 RRN,J WP No.29923 of 2017 regarding authenticity of private sick certificate for the purpose of granting sick leave, was in violation of the Corporation Leave Rules. The facts in the above case are not squarely applicable to the facts on hand as in the above case the petitioner throughout was pursuing the authorities to grant sick leave on the ground that he is unable to his duties due to illness. Whereas in the present case, the petitioner did not choose to pursue for grant of sick leave and he simply submitted sick certificate as per his convenience. Further, the petitioner did not produce any medical certificate or record neither before the authorities nor before the Court below to show that he was under treatment at any Hospital during the period of his absence.
14. It is necessary to discuss the Regulation 28(xxvii) of APSRTC Employees (Conduct) Regulations, 1963 which is extracted and reproduced hereunder:
"28. General Provisions: Without prejudice to the generality of the foregoing regulations, the following acts or omissions shall be treated as misconduct:- xxvii) habitual late attendance, irregular attendance, absence without leave and without reasonable cause and absence without permission and wasting time or loitering while on duty."
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15. The actions of the petitioner fall within the parameter of the above rule as the petitioner resorted to unauthorised absence which is without permission, causing loss of revenue to the respondent Corporation.
16. As seen from the record, it reveals that even before to the impugned proceedings of removal, the petitioner was removed from service earlier i.e. one in a cash and ticket irregularities case and one in unauthorized absenteeism. This is not disputed by the petitioner and it only goes to show that he is irregular in attending to his duties and also indulges in misconduct. Despite the respondent's Corporation removing the petitioner from service on an earlier occasion i.e. on 01.08.2005 and reinstated on 11.01.2008, the petitioner resorted to unauthorised absence just within two months from the date of his reinstatement. As such, the acts of the petitioner constitute misconduct in terms of Reg.28(xxvii) of APSRTC Employees (Conduct) Regulations, 1963.
17. In view of the foregoing discussion, the Writ Petition is devoid of merits and no interference is required in the order dt.27.04.2017 rendered by the Industrial Tribunal, Warangal in I.D.No.77 of 2015. Hence, the Writ Petition is liable to be dismissed.
18. Accordingly, the Writ Petition is dismissed. No order as to costs.
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As a sequel, miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.
____________________________________ NAMAVARAPU RAJESHWAR RAO, J 6th day of January, 2023 BDR