Telangana High Court

Tsrtc vs L.Mallaiah Died For Lrs on 13 September, 2024

          THE HON'BLE SRI JUSTICE PULLA KARTHIK

                   WRIT PETITION No.38182 of 2022
ORDER:

This Writ Petition, under Article 226 of the Constitution of India, is

filed seeking the following relief:

"...to issue an appropriate writ order or direction especially one in the nature of writ of Certiorari calling for the records pertaining to the impugned award dt. 15.02.2021 passed in I.D. No.19 of 2017 on the file of the Presiding Officer, Labour Court-III, Hyderabad and published on 22.04.2021 in GO Rt. No. 178 and quash the same was being illegal, unjust, perverse and without jurisdiction and pass..."

2. The brief facts leading to filing of the present writ petition are that,

while respondent No.1 was working as a Welder in the petitioner

Corporation, he was issued with a charge sheet on 16.11.2015 alleging his

unauthorized absence from 21.10.2015 to 06.11.2015. In response to the

said charge sheet, respondent No.1 submitted his explanation on

18.11.2015. However, having been dissatisfied with the explanation, the

petitioners conducted enquiry and consequently, removed respondent No.1

from service on 16.01.2016. Thereafter, respondent No.1 filed an appeal

and a revision petitioner before the petitioner authorities. However, the

same were also rejected on the ground of delay as time barred. In the said

circumstances, respondent No.1 approached the Labour Court-III,

Hyderabad, and filed I.D.No.19 of 2017 which was allowed on 15.02.2021

setting aside the removal order dated 16.01.2016 and the petitioners

PK, J

herein were directed to reinstate respondent No.1 into service with

continuity of service, attendant benefits and back wages. Assailing the

said award, the petitioner Corporation filed the present writ petition.

3. Heard Sri B. Krishna Karthik, learned counsel, representing

Sri Gaddam Srinivas, learned Standing Counsel for the petitioners and

Sri V. Narasimha Goud, learned counsel appearing for the respondents.

4. Learned counsel for the petitioners contends that the Labour Court,

having held that the domestic enquiry is valid vide proceedings dated

13.10.2020, ought not to have exercised its power under Section 11 A of

the Industrial Disputes Act, 1947, (for short, 'the I.D. Act') in setting aside

the removal order dated 16.01.2016, directing reinstatement with

continuity of service, attendant benefits and backwages. Further, the

Labour Court, having held that the enquiry is vitiated for non-furnishing of

the enquiry report, ought to have remanded the matter back to the

disciplinary authority for conducting a fresh enquiry after furnishing the

enquiry report, in view of the law laid by the Constitution Bench of the

Hon'ble Apex Court in Managing Director, ECIL, Hyderabad v.

B. Karunakar and other 1. It is further contended that the Labour Court

failed to appreciate the fact that respondent No.1 did not file any affidavit

to the effect that he was not gainfully employed elsewhere from the date of

1 1993 (4) SCC 727

PK, J

his removal from service. As such, the Labour Court erred in awarding

backwages and attendant benefits. Therefore, learned counsel for the

petitioners prays this Court to allow the present writ petition.

5. Learned counsel for respondent No.1 contends that after filing the

counter and documents filed by the petitioners herein in the I.D., the

Labour Court was pleased to take the domestic enquiry as a preliminary

issue, heard on it, and held it as valid vide order dated 13.10.2020, and on

re-appreciation of the material available under Section 11-A of the I.D. Act,

the Labour Court has held the charges as not proved for the reason that

the main witness i.e., the witness on whose report basis the charge sheet

was issued, was not examined and basing on his report, respondent No.1

was removed from service. Further, while removing respondent No.1 from

service, petitioner No.4 has considered absenteeism report dated

06.01.2016 stating that the deceased respondent was absent from

03.01.2016 till the date of removal, but no charge was framed to that effect

nor any opportunity was provided to respondent No.1. As such, the action

of the petitioners in removing respondent No.1 from service is illegal and

arbitrary. Thus, the Labour Court, after considering the binding precedent

as well as on appreciating the material before the enquiry officer, has

rightly granted reinstatement with continuity of service, attendant benefits

and backwages vide impugned award dated 15.02.2021. It is further

PK, J

contended that there is no substance in the grounds urged in the present

writ petition as it is settled law right from the decision of the Supreme

Court reported in AIR 1973 SC 1227 onwards, wherein, it was held that,

where the Labour Court holds an enquiry as valid, still it has the power to

re-appreciate the material available under Section 11-A of the I.D. Act,

which is the material placed during the domestic enquiry but not any

other material. Further, the impugned award was published in the

Government Gazette vide G.O.Rt.No.178 dated 30.03.2021 and it has come

into force w.e.f., 22.04.2021 and the workman i.e., respondent No.2's

husband passed away on 06.08.2021 even prior to filing of the present writ

petition. Despite the award of the Labour Court dated 15.02.2021, the

petitioners have not reinstated respondent No.1 into service while he was

alive. Moreover, no leave was sought to file the present writ petition

against respondent No.2 to 6 i.e., the legal heirs of the deceased workman,

as they were not the parties to the impugned award. As such, the writ

petition is not maintainable. Therefore, it is prayed to dismiss the present

writ petition. In support of his contentions, learned counsel relied on the

decision of the Hon'ble Apex Court in State of U.P. and others v. Saroj

Kumar Sinha 2 and the decisions of this Court in A.V. Swami v.

2 2010 (2) SCC 772

PK, J

Industrial Tribunal-cum-Labour Court, Warangal, 3 and also in

A.P.S.R.T.C. and others v. N.V. Subbaiah and others 4.

6. This Court has taken note of the rival contentions made by the

learned counsel for the respective parties.

7. A perusal of the record discloses that the Labour Court allowed

I.D.No.19 of 2017 vide award dated 15.02.2021, mainly on two grounds:

that respondent No.1 was not afforded any opportunity to submit the

relevant medical documents to substantiate the reason for his absence and

on 18.11.2015, when he finally became fit and reported to duty, he was

not allowed to join duty; and that the main witness i.e., petitioner No.4

herein, who was the complainant, was not at all examined by the enquiry

officer to prove the contents of the complaint. The relevant portion of the

aforementioned award is extracted hereunder:

"During domestic enquiry the enquiry officer did not bother call the Asst. Engineer(M) TSRTC., Suryapet to prove the contents of the complaint. Inspite of calling the Asst. Engineer(M) TSRTC., Suryapet, the enquiry officer deviated the procedure and called only the petitioner and recorded his statement. This procedure is unknown to law. When the complainant himself fails to appear before the enquiry officer, it is not correct to say that the contents of the complaint are proved. What made the enquiry officer to not summon the Asst.Engineer(M), is not explained in the enquiry report. It is the minimum duty to call the complainant and get the letters addressed by him marked through his statement. The law was set in motion because of the complaint. When the said complaint itself is not marked, it is untenable to say that the allegations are well founded. Therefore the findings of the enquiry holding that the charge is proved against the petitioner, is not correct. When the petitioner has assigned the reason that

3 MANU/AP/0065/1989 4 2016 3 ALD 517

PK, J

because of the viral fever and attending his mother for her eye operation he could not attend to duty, the enquiry officer should have asked the petitioner to bring the sick certificate from the competent doctor. Without giving an opportunity to the petitioner to produce the required sick certificate and without appreciating the cause mentioned by the petitioner straight away issuing the show cause notice for removal is also a strange practice."

8. For better appreciation of the case on hand, it is pertinent to refer

the decision of the Hon'ble Apex Court in Saroj Kumar Sinha (supra),

and the relevant portion of the said judgment is extracted hereunder:

"18. Upon due consideration of the extensive pleadings of the parties, the Division Bench has recorded the following conclusions:

After hearing the rival submission of learned Counsel for the parties as well as the averments made in the affidavits, we are of the view that the inquiry officer has not afforded opportunities to the petitioner insofar as he fails to supply the documents to the petitioner which he has relied while framing the charges and further the petitioner was not afforded opportunity to lead the evidence and also denied the opportunities to cross-examination of the person. The inquiry officer has also failed to prove the charges during the inquiry proceedings by the recording any evidence. Thus, the inquiry is vitiated and is violation of principle of natural justice.

...

26. A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge. Enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the

PK, J

aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

27. Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.

28. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. In the case of Shaughnessy v. United States 345 US 206 (1953) (Jackson J), a judge of the United States Supreme Court has said "procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied.

...

31. As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the enquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of principles natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge sheet."

9. It is also pertinent to refer to the order of this Court in A.V. Swami

(supra), wherein, it is held as follows:

"4. To appreciate the above argument of the Learned Counsel, it would be necessary to have a close look at the provisions of Section 11-A of the Industrial Disputes Act which is in the following terms :

"11-A Power of Labour Courts, Tribunals and National Tribunal to give appropriate relief in case of discharge or

PK, J

dismissal of workman : Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or national Tribunal, as the case may be, is satisfied with the order or discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require :

Provided that in any proceedings under this Section, the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only the materials on record and shall not take any fresh evidence in relation to the matter."

5. An analysis of this section shows that if the Labour Court is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal, as the circumstances of the case may require. The proviso to the said section is extremely important for the purpose of the case on hand which reads that in any proceeding under this section, the Labour Court shall rely only on the material on record and shall not take any fresh evidence in relation to the matter. Therefore, the question is whether the past record of service comes within the category of "materials on record" for the purpose of this case. It is an undisputed fact that the past record of service was neither considered nor referred to by either the workman or the second respondent-corporation at the time of the enquiry against the petitioner. But the past record of service has been considered in a detailed fashion by the Labour Court while coming to the conclusion that the order of removal is justified in the circumstances of the case. In fact, about three full pages have been written about the past record of service of the petitioner. This past record of service is evidently not material on record as visualised in the proviso to Section 11-A. Therefore, the question is, would the Tribunal have come to the same conclusion, viz., that the order of removal is justified had it not looked into the past record of the petitioner. Suffice it to state that from the manner in which the award has been passed, it is easy to see that a lot of emphasis has been placed on the past record of service of the petitioner. The approach of the Industrial Tribunal was clearly wrong and not justified by the proviso to Section 11-A. The Labour Court should have come to the conclusion that the order of removal is justified only on the basis of the appreciation of the material on record and not by taking into consideration the past record of service of the petitioner. In this view of the matter, the award dated April 3, 1987, passed by the Labour Court in I.D. No. 141 of 1986 is set aside and the matter is remanded to the

PK, J

Industrial Tribunal for fresh consideration in accordance with the provision of Section 11-A of the Industrial Disputes Act. Especially the proviso to the said section, by taking into consideration only the materials on record and not the past record of service of the petitioner, The Labour Court may consider the matter and pass an award within two months from the date of receipt of this order."

10. From the above, this Court is of the opinion that the Labour Court

has rightly held that the petitioner Corporation has completely deviated

from the procedure contemplated under the Regulations by taking the

petitioner's past absenteeism into consideration while passing the removal

order in spite of the fact that there was no reference of past absentieesm in

the charge sheet.

11. In N.V. Subbaiah (supra), a learned Single Judge of the High Court

of Judicature for the State of Telangana and the State of Andhra Pradesh

held as follows:

"5. The main ground urged by the learned Standing Counsel for the Corporation is that the Tribunal erred in re-appreciating the evidence on record by upsetting a factual finding given by the enquiry officer which was confirmed in appeal and revision by the authorities of the Corporation. He further submits that this Hon'ble Court has no jurisdiction to entertain the present writ petition seeking issuance of writ of certiorari in view of the judgment of the Apex Court in Union of India and others v. P. Gunasekaran MANU/SC/1068/2014 : (2015)2 SCC 610. Lastly he submits that no explanation is forthcoming from the petitioner as to the delay in filing W.P. No. 29218 of 2008.

...

14. From the judgments referred to above, is clear that Section 11-A of the Act authorizes the Labour Court with the power to adjudicate a dispute on merits by re-appreciating the evidence placed on record and also to examine the aspect of proportionality of punishment imposed upon a workman if the acts of misconduct alleged against the workman are proved. Hence, the argument of the learned Standing Counsel for the

PK, J

Corporation that the Labour Court has erred in re-appreciating the evidence on record by upsetting a factual finding given by the enquiry officer cannot be accepted.

...

25. From the judgments referred to above, it is clear that the workman, who has not been found guilty of the charges leveled against him and was not gainfully employed elsewhere during the period of his removal, is entitled not only for reinstatement with continuity of service but also with full back wages along with other consequential benefits."

(Emphasis supplied)

12. In view of the above, this Court is of the opinion that the Labour

Court has an ample jurisdiction under Section 11-A of the I.D. Act, to

re-appreciate the material on record and adjudicate the case on its merits.

A perusal of the impugned award dated 15.02.2021 reveals that, on

appreciating the entire material on record, the Labour Court has rightly

held that the removal order passed by the petitioner Corporation is

disproportionate to the charge leveled against respondent No.1, and on

considering the fact that the deceased husband of respondent No.2 has

specifically pleaded before the Labour Court that he was not gainfully

employed anywhere, the Labour Court has passed the award dated

15.02.2021 and the operative portion of the said award is extracted