HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 20037 OF 2009
ORDER:
By the Award dated 13.12.2008 in I.D.No. 43 of 2006, the Labour Court-II at Hyderabad while setting aside the removal order dated 03.03.2006, directed the Corporation to reinstate petitioner into service with continuity of service but denied back-wages and other service benefits for the involved period. The said part of the Award is questioned in this Writ Petition.
2. Petitioner was appointed as driver in the respondent Corporation in 1979 and while working as such at B.H.E.L. Depot, he was removed from service vide order dated 03.03.2006 under the charge of 'unauthorised absence' with effect from 10.12.2005 to 03.03.2006. The case of petitioner is that during the said period, he suffered spondylitis and was referred to Tarnaka Hospital and the said factum was also informed to the Corporation authorities and a sick certificate was also sent to that effect. His grievance is that without following the procedure of issuing charge-sheet, conducting enquiry, calling for explanation /objection/remarks on the enquiry report and show cause notice of removal, his services were terminated, thus violated APSRTC 2 (Leave) Regulations, 1963. Though petitioner requested several times, Corporation did not supply copies of charge sheet, enquiry proceedings, show cause notice of removal, etcetera enabling him prefer an Appeal against the order or removal, hence, petitioner was stated to have raised a dispute. The Labour Court after hearing the arguments of both the parties, passed the impugned Award, pursuant to which, he was reinstated into service in June 2009 and was working at Medchal depot.
3. It is represented that learned counsel for petitioner passed away long back. Though this Court on 01.09.2023 directed issue of notice to petitioner and also to print his name in the cause list, so far, there was no response from petitioner.
4. Heard learned Standing Counsel for Corporation Sri Thoom Srinivas. He placed reliance on the judgment in G.R. Reddy v. Presiding Officer, Labour Court, Godavarikhani 1 to contend that the High Court under Article 226 of the Constitution cannot interfere with the punishment imposed by the disciplinary authority. He therefore, requests to dismiss the Writ Petition.
5. Perused the record.
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1998(1) ALD 616 (FB) 3
6. It is very well-settled by the Hon'ble Apex Court throughout that this Court while exercising the power of judicial review under Article 226 of the Constitution cannot lightly interfere with the punishment imposed by the disciplinary authority, since the High Court does not sit as a Court of Appeal over the decision of the authority holding domestic enquiry against a public servant. It is not open to the High Court to re-appraise the evidence and to arrive at an independent conclusion on the evidence adduced in the case. However, the grey area where the High Court can interfere is only where during the course of departmental proceeding, principles of natural justice were violated causing prejudice to the delinquent officer. The High court may interfere with the punishment when the same is shockingly disproportionate to prove the guilt or misconduct no reasonable prudent man would award such a punishment which is so arbitrary and unreasonable attracting application of Article 14 and in such circumstances, the High Court may well be justified in treating such cases as amounting to discrimination calling for redressal under Article 14 of the Constitution of India.
7. In this case, the main grievance of petitioner is that he was not issued charge sheet nor intimation of enquiry and no comments on show cause notice of removal were sought and so on. It is the argument of learned counsel for respondent that the 4 Enquiry Officer sent notice on 03.12.2005 to the residential address of petitioner to attend enquiry on 08.12.2005 or 12.12.2005 or 16.12.2005 but petitioner failed to attend on any of the above dates, hence, ex parte enquiry was conducted. In support of his case, before the Labour Court, petitioner relied on the judgment of the Hon'ble Apex Court in Union of India v. Dinanath Shantaram Karekar (AIR 1998 SC 138). In the said judgment, it has been held that there being no tender to addressee of document by postal authorities, it cannot be legally treated to have been served, also service of show cause notice by publication in newspaper not shown to be popular in the area, held to be not sufficient and initiation of disciplinary proceedings upon such defective service held bad. He relied on another judgment in L. Robert D'Souza v. The Executive Engineer, Southern Railway (Civil Appeal No. 1613 of 1979 vol. 21, 642) wherein it has been held that even if a workman absents himself without leave his services cannot be terminated without holding enquiry and complying with the principles of natural justice. Since the Corporation failed to produce any evidence to prove that notices were served on petitioner and even thereafter, he did not respond, it cannot be said that notices were served legally.
8. Coming to the charge of unauthorised absence, petitioner submits that he informed his sickness on telephone to 5 the authorities and he also sent sick certificate through Union Leader. He filed copies of sick certificates and fitness certificates issued by APSRTC Tarnaka Hospital and Government Ayurvedic Hospital, which were disputed by the Corporation stating that they are only xerox and they cannot be taken into consideration. Be that as it may, the Labour Court observing that petitioner was due for retirement in 2010, and since he was out of employment from the date of his removal i.e. 03.03.2006 ie. more than three years, to meet the ends of justice, directed reinstatement with continuity of service which this Court feels it proper and justified.
9. As far as denying back-wages, which is questioned in this Writ Petition, though normal rule is reinstatement should follow back-wages, in the facts and circumstances, as the respondent failed to prove that principles of natural justice were strictly followed and that petitioner was gainfully employed during the period when he was not on duty, ends of justice, in the opinion of this Court, would meet if back wages at 40% is awarded.
10. The Writ Petition is accordingly, allowed directing the respondent Corporation to award back-wages to petitioner at 40% during the involved period within a period of eight weeks from the date of receipt of a copy of this order. No costs.
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11. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 31st October 2023 ksld