Telangana High Court

G.N.Bhaskar, Mahabubnagard ... vs The Security Officer, Apsrtc., ... on 31 October, 2023

Bench: Nagesh Bheemapaka

          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

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

AIR 1998 SC 948

AIR 1994 SC 215

AIR 1984 SC 1361

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

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,

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;



               (2015) 2 SCC 610





(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

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