HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 23446 OF 2009
ORDER:
Assailing the Award dated 07.08.2009 in I.D.No. 213 of 2005 on the file of Labour Court-I, Hyderabad insofar as directing the Corporation to reinstate the 1st respondent into service without continuity of service and with 50% back wages, the Writ Petition is filed by the Corporation.
2. The 1st respondent was engaged as a casual conductor on daily-wage basis and his services were regularised with effect from 01.04.1988. It is stated that during his service, he was censured - five times, annual increments were deferred - six times, removed from service on 16.03.1992 on the allegation of absenteeism. In this case also, he was charge-sheeted for unauthorised absence. Departmental enquiry followed. Thereafter, the Enquiry Officer submitted his report to the disciplinary authority holding that charge levelled against the 1st respondent was proved and thus, imposed penalty of removal from service on 03.05.2000. The Appeal and Revision preferred against the said order were also negatived. The 1st respondent therefore, raised a dispute wherein the Labour Court directed reinstatement of the 1st respondent into service without continuity of service and with 50% of back wages from the date of removal till the date of rejection of 2 review petition i.e. 03.05.2000 to 26.06.2001 and from the date of filing I.D. till the date of reinstatement. Aggrieved thereby, the Corporation is before this Court.
3. Learned Standing Counsel for Corporation Sri Thoom Srinivas submits that the Labour Court having held that charge of unauthorised absence for 33 days was proved, erred in setting aside the order of removal. Secondly, the Labour Court having denied continuity of service from 27.06.2001 till the date of filing the I.D., ought not to have awarded 50% back wages. Citing the judgment in J.K.Synthetics Ltd. vs K.P.Agrawal 1, it is contended that back wages and punishment cannot go together, as such awarding back wages is illegal.
4. Perused the record. The charge framed against the 1st respondent is as follows:
" For having not attended to your duties for 89 days during the period from January 1996 to November 1996 creating public criticism and inconvenience to the travelling public, which constitutes misconduct in terms of Regulation 28(ix)(a)&(xxxii) of APSRTC Employees' (Conduct) Regulations, 1963".
But from the cross-examination of M.W.1, it was elicited that unauthorised absence of petitioner was only for 33 days and for the remaining days, he was granted leave by the management. Petitioner also admitted that he abstained from duties unauthorisedly for 33 days. Though the Corporation alleged that 1 2007(2) SCC 433 3 previously also, he remained absent and he was removed from service on that ground, the past misconduct was not part of the subject charge. Hence, when the unauthorised absence was only for 33 days, punishment of removal from service appears to be disproportionate. Hence, this Court is not inclined to interfere with the said finding of the Labour Court.
As regards awarding 50% back wages is concerned, the Labour Court keeping in view the delay of nearly five years in approaching the Court i.e. from the date of rejection of review petition till filing the I.D., treated the said period as break in service. Though the 1st respondent stated that he sent representation to different higher authorities as well as the Government, he did not get any documents marked in proof of the same. The Labour Court is not convinced with the submission of the workman, hence, ordered only 50% back-wages. This Court is also not inclined to find fault with the same as the Corporation did not produce any evidence to show that the workman was gainfully employed during the said period.
5. In the light of the findings recorded by the Labour Court, this Court is of the opinion that the Award impugned does not merit consideration. The Writ Petition is therefore, liable to be dismissed.
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6. The Writ Petition is accordingly, dismissed. No costs.
7. Pending miscellaneous petitions, if any, shall stand closed.
-------------------------------------- NAGESH BHEEMAPAKA, J 27th September 2023 ksld