R. Ganesh, vs The Depot Manager, Tsrtc Apsrtc, ...
2023 Latest Caselaw 117 Tel

                                   1                                  RRN,J
                                                              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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                                                        WP No.29923 of 2017

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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                                                       WP No.29923 of 2017

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

MANU/AP/0193/2003

MANU/AP/0945/2015

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.

                                  8                             RRN,J
                                                       WP No.29923 of 2017

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."

                                  11                             RRN,J
                                                        WP No.29923 of 2017

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.

                                 12                              RRN,J
                                                        WP No.29923 of 2017

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