HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 24295 OF 2009
ORDER:
Calling in question the Award dated 09.04.2004 in I.D.No. 135 of 2000 on the file of the Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad in so far as denying continuity of service and backwages while directing his reinstatement, petitioner is before this Court.
2. Petitioner raised the Dispute questioning his termination order dated 23.09.1999. While he was working as Security Guard under the Depot Manager, Nagarkurnool, he was charged for unauthorised absence from 10.10.1998 till 03.11.1998. It is his case that he was not keeping good health; after his duty on 08.10.1998, he availed weekly-off on 09.10.1998 and applied for leave on 10.10.1998 and 11.10.1998, however he could not attend his duty from 12.10.1998 due to sickness and took treatment up to 30.10.1998. Appeal and Review preferred against the termination order turned futile. Petitioner submits that pursuant to the impugned Award, he was reinstated into service on 04.01.2005.
3. Learned counsel for petitioner Sri V. Narsimha Goud submits that it is natural law that reinstatement should 2 follow continuity of service and backwages. The Tribunal having found that punishment of removal is disproportionate to the gravity of the charge, failed to grant consequential reliefs, hence, petitioner was deprived of his eventual promotion. Learned counsel relied on the judgments of the Hon'ble Apex Court in Colour-Chem Limited v. A.L. Alaspurkar 1, Union of India v. Giriraj Sharma 2 and A.L. Kalra v. Project and Equipment Corporation of India Ltd. 3 in support of his contentions.
4. Per contra, in the counter-affidavit, respondent Corporation stated that personal records of petitioner were called for, for conducting selections to the post of Security Head Guard on 29.12.2008, according to the seniority list of Security Guards published on 01.06.1992; during the selections, the Selection Committee perused the personal records of petitioner together with the impugned award, pursuant to which, seniority of petitioner was reckoned from the date of his reinstatement into service, hence, his case was not considered for promotion. The contention of petitioner that he was waiting for promotion and the Corporation dodged the matter by not disclosing the actual facts is denied. Since the records will be called for consideration of 1 AIR 1998 SC 948 2 AIR 1994 SC 215 3 AIR 1984 SC 1361 3 promotion at 1:3 ratio, all the employees whose records were called for will not get promotion.
5. Learned Standing Counsel submits that the Writ Petition is liable to be dismissed for more than one reasons: 1) Award in question is perfectly valid and legal; 2) on the ground of latches as petitioner approached this Court after long lapse of five years; 3) for non-joinder of necessary party as Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad being a proper and necessary party was not impleaded to this Writ Petition. He also relied on the order in Writ Petition No. 8347 of 2004 (Mohd. Shareef v. The Presiding Officer, Labour Court-II), wherein this Court relying on the judgments of the Hon'ble Apex Court in State of Andhra Pradesh v. Sree Rama Rao (AIR 1963SC 1723), State of Bikaner and Jaipur v. Nemi Chand Nalwaya {(2011) 4 SCC 584}, Union of India v. P. Gunasekaran {(2015) 2 SCC 610} and NEKRTC v. H. Amaresh {(2006) 6 SCC 187}, dismissed the Writ Petition filed seeking the relief of reinstatement with continuity of service, full back wages and other reliefs.
He submits that the Labour Court having held that the charges levelled against petitioner were proved modified the punishment of removal from service and directed Corporation to reinstate him into service without backwages and without 4 continuity of service, hence, the Award passed by the Labour Court is perfectly valid and legal.
6. Perused the record. The main contention of petitioner is that the period of unauthorised absence alleged was covered by the sick certificate issued by RTC dispensary at Wanaparthy from 14.10.1998 to 18.10.1998 and 19.10.1998 to 30.10.1998; the leave application dated 08.10.1998 sanctioning leave on 30.10.1998 and another leave application dated 10.10.1998 with an endorsement of Security Inspector was filed along with claim petition. On the contrary, Corporation case is that petitioner was absent from 10.10.1998 till the date of removal which clearly shows that he has no interest on job. It was denied that petitioner applied for leave and the same was granted on 10.10.1998 and 11.10.1998. Absence period from 14.10.1998 to 30.10.1998 was also covered by sick certificate issued by RTC Dispensary at Wanaparthy is totally false. The Labour Court relying on Ex.M13 Enquiry Report, observed that petitioner received charge sheet but he failed to submit explanation and in spite of receipt of enquiry notices, he refused to take part in the enquiry; as per the statement given by K. Gundu Rao before Enquiry Officer, petitioner was absent from 10.10.1998 till the date of charge sheet i.e. 03.11.1998, and he sent medical certificates issued by the Medical Officer, Government Hospital, 5 Wanaparthy from 14.10.1998 to 18.10.1998 and he had not reported to duty on 19.10.1998; so by virtue of Ex.M13, it is proved that charge levelled against petitioner was proved but as he was absent after securing medical certificate from a government hospital, in view of the judgment in Writ Petition No. 30036 of 1995 (Thimmaiah v. The A.I.T.-cum-ALC, Andhra Bhoomi), wherein the Court directed respondent to reinstate petitioner without backwages and continuity of service, in this case, the proper punishment must be reinstatement into service but without back wages and continuity of service.
7. It is quite appropriate at this stage to see the law laid down by in Union of India v. P. Gunasekaran 4, wherein the Hon'ble Apex Court while dealing with the case of reappreciating evidence held that the High Court cannot act as an appellate authority in the disciplinary proceedings and laid down the parameters as to when the High Court shall not interfere in the disciplinary proceedings.
" 13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been
conducted in accordance with law;
4
(2015) 2 SCC 610
6
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere if there be some legal evidence on which findings can be based;
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
8. In view of the findings arrived at by the Labour Court after appreciation of evidence and facts borne out by record and in the light of the law laid down in the judgments supra, this Court cannot re-appreciate the evidence on record and take a different view from the one taken by the Labour Court in the absence of perversity. Further there is no violation of principles of natural justice and adequate opportunity was given to petitioner by the Enquiry Officer to disprove the charges, as is evident from the documents got marked on behalf of the Corporation.
9. In so far as the judgments relied on by the learned counsel for petitioner, though it is normal rule that reinstatement should follow continuity of service and back wages, in the facts and circumstances of the case, this Court is unable to apply the said rule as petitioner failed to prove that he applied leave from 30.10.1998 up-till the date of charge sheet.
The punishment imposed by the Labour Court cannot be said to 7 be disproportionate to the misconduct exhibited by the employee, hence, the Writ Petition is liable to be dismissed.
10. Further, in the counter, the respondent Corporation stated that petitioner approached this Court after lapse of five years which remained unexplained and he failed to implead the Labour Court as party respondent. In the absence of any reasons in justification, this Court is of the opinion that the Writ Petition is liable to be dismissed on the above grounds also.
11. The Writ Petition is accordingly, dismissed. No costs.
12. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 31st October 2023 ksld