Telangana High Court

M. Thirupathaiah vs Tsrtc on 20 September, 2023

Bench: Juvvadi Sridevi

         THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

                  WRIT PETITION No.2096 of 2019

ORDER:

Petitioner has questioned the award, dated 24.08.2018 passed

by Labour Court-III, Hyderabad in I.D.No.04 of 2016.

2. I have heard the submissions of Sri Siddartha Goud, learned

counsel representing Sri V.Narasimha Goud, learned Counsel for the

petitioner, learned Standing Counsel for TSRTC appearing for

respondents and perused the record.

3. Petitioner joined the service of respondents-TSRTC as

Conductor on 25.02.1987 and his services were regularized with

effect from 01.11.1987. Thereafter he was promoted as Assistant

Depot Clerk (ADC) in the month of October, 2012. While so, the 2nd

respondent passed order, dated 05.12.2014 removing the petitioner

from service on the ground that he was absent for duty from

08.08.2014 to 26.08.2014. Questioning his removal, he filed

I.D.No.04 of 2016 before the Labour Court-III, Hyderabad which was

dismissed by impugned order.

4. Case of the petitioner is that due to illness, he made a

representation to the 2nd respondent on 07.08.2014 informing that

he was unable to attend his duties. Further, when he received the 2 JS, J W.P.No.2096 of 2019

notice in the inquiry proceedings, he made another representation on

16.10.2014 requesting the Inquiry Officer that he was unable to

attend the inquiry due to illness. Inspite of the same, the inquiry

was conducted ex parte. Basing on such inquiry report, he was

removed from service in an arbitrary manner. It is also stated that

the petitioner has submitted sick leave before the 2nd respondent for

the period from 08.08.2014 to 12.10.2014 and from 13.10.2014 to

05.12.2014, however, when he reported for duty on 06.12.2014

along with fitness certificate, the removal order was served on him.

The Tribunal, without considering all these aspects, has dismissed

the I.D. Hence, the present writ petition.

5. Counter affidavit is filed by the respondents stating that the

petitioner was engaged as Casual Conductor on 25.02.1987 in TSRTC

and subsequently his services were regularized with effect from

01.11.1987. During his service, he was censured for 15 times and

his annual increments were deferred for 26 times in various cases of

misconduct. In view of his unauthorized absence from duties, he

was removed from service with effect from 05.12.2014. Petitioner,

without availing the remedies of appeal/review/Mercy Petition with

the authorities, has filed the ID before the Labour Court which was

rightly dismissed. It is the further case of the respondents that a 3 JS, J W.P.No.2096 of 2019

charge sheet, dated 28.08.2014 was issued to the petitioner with the

following charge:

"For having absented un-authorizedly for your duties from 08.08.2014 to 26.08.2014 neither with Prior sanction leave from the Depot authorities nor submitted any sick certificate from the RTC Hospitals, which resulted in dislocation of day to day works at Earning Section, Kalwakurthy which constitutes misconduct under Reg.28(xvii) of APSRTC Employees (conduct) Reg. 1963."

6. When the above charge sheet was sent to the residential

address of the petitioner by the 2nd respondent through registered

post, the same was returned by the postal authorities with an

endorsement, "unclaimed, returned to sender". Hence, a detailed

inquiry was initiated. The petitioner was issued three notices on

16.09.2014, 07.10.2014 and 14.10.2014 calling upon him to appear

before the Inquiry Officer along with the material available with him.

Though the petitioner acknowledged the receipt of those notices, he

neither appeared before the Inquiry Officer nor sent any intimation to

the authorities or the Inquiry Officer. As there is no other

alternative, the Inquiry Officer conducted ex parte inquiry by duly

recording the statement of DC(E) of Kalwakurthy Depot. The Inquiry

Officer, basing on the evidence available on record, submitted his

report on 08.11.2014 to the Depot Manager, holding the petitioner

guilty of charge. Copy of the inquiry report and the statement

recorded during the inquiry proceedings were sent to the petitioner's 4 JS, J W.P.No.2096 of 2019

residential address by registered post, but the postal authorities

returned the undelivered cover with an endorsement, "refused". The

petitioner neither submitted comments/objections for the inquiry

report nor reported to the Depot Manager. Thereafter, a show cause

notice of removal from service, dated 22.11.2014 was sent to the

residential address of petitioner by registered post, however the

same was returned with an endorsement "refused". Under those

circumstances, the Depot Manager passed the final order of removal

from service vide proceedings, dated 05.12.2014 and the same was

also sent to the residential address of the petitioner by registered

post which was also returned with an endorsement, "continuously

door locked". It is stated that 7 ½ months after passing the removal

order i.e. on 13.08.2015 the petitioner submitted a representation to

the 2nd respondent requesting to supply copy of the proceedings,

which were supplied on the same day. In view of the above, as the

petitioner did not participate in the inquiry and did not receive the

notices, he is not entitled to any relief in the writ petition and the

same is liable to be dismissed.

7. The allegation against the petitioner was his absence from duty

during the period from 08.08.2014 to 26.08.2014. The case of the

petitioner is that he intimated about his illness to the 2nd respondent

on 07.08.2014 itself but inspite of the same, inquiry was initiated, for 5 JS, J W.P.No.2096 of 2019

which, he could not attend due to his illness and the same has

resulted in the order of removal. Though the petitioner has stated

that he intimated about his illness by representation, dated

07.08.2014, copy of such representation is not filed and he also

failed to follow-up with the respondents as to what happened to such

representation. The respondents are also silent about receiving such

representation and their simple case is that the petitioner was on

unauthorized absence from 08.08.2014 to 26.08.2014. It is to be

seen that right from the initiation of inquiry proceedings, all the

notices sent to the residential address of the petitioner through

registered post were returned with endorsements like

unclaimed/refused. Though the petitioner has received the notices

sent by the Inquiry Officer on 16.09.2014, 07.10.2014 and

14.10.2014, for the reasons best known to him, he failed to appear

before the Inquiry Officer nor he submitted any representation

stating his inability to appear. If the petitioner is suffering from ill-

health, he should have sought for some time to participate in the

inquiry proceedings. Inspite of receiving notices, the petitioner

remained silent, which resulted in adverse report against him. The

inquiry report sent to the petitioner's address was also returned with

an endorsement "refused" and the subsequent show cause notice of

removal sent to the petitioner's address was also returned with an

endorsement "refused". This shows the indifferent attitude of the 6 JS, J W.P.No.2096 of 2019

petitioner towards the steps taken by the authorities against his

unauthorized absence. Such behaviour of petitioner falsifies his

contention that he intimated about his illness to the 2nd respondent

by representation, dated 07.08.2014.

8. In support of his contentions, learned counsel for petitioner has

relied on the judgment in T.Charanjeevi vs. Telangana State

Road Transport Corporation, Hyderabad 1, wherein when the

petitioners therein were removed from service for their absence for

five days and eight days, this Court set aside the orders of removal

holding that such removal was disproportionate to the misconduct

alleged.

9. The learned counsel for the petitioner has also relied on

another judgment of this Court in APSRTC, Hyderabad and

another vs. N.V.Subbaiah and another 2, wherein this Court held

that the cases in which the competent Court/Tribunal finds that the

employer has acted in gross violation of the statutory provisions

and/or the principles of natural justice or is guilty of victimizing the

employee or workman, then the concerned Court or Tribunal will be

fully justified in directing payment of full backwages.






    2016 (1) ALD 32

    2016 (3) ALD 517
                                        7                                  JS, J
                                                           W.P.No.2096 of 2019

10. Both the above judgments are not applicable to the facts of the

present case. In the present case, the punishment of removal was

imposed for the unauthorized absence of petitioner from 08.08.2014

to 26.08.2014 i.e. for a period of 18 days. Here, it is to be seen that

earlier, the petitioner was censured for 15 times and his annual

increments were deferred for 26 times in various cases of

misconduct. Therefore, the present unauthorized absence of

petitioner shall be looked conjointly with the earlier incidents of

misconduct. Further, the petitioner was indifferent towards the

correspondence from the authorities. On some occasions he refused

to receive the notices and on some other occasions inspite of

receiving such notices, he did not respond/participate in the