Mohd. Abdul Azeem, Hyd. vs The Depot Manager And Another
2023 Latest Caselaw 3431 Tel

            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

(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.

1998(1) ALD 616 (FB)

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

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

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.

11. Consequently, the miscellaneous Applications, if

any shall stand closed.

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NAGESH BHEEMAPAKA, J

31st October 2023

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