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BEFORE THE CHAIRMAN-CUM-PRESIDING OFFICER,
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ANANTAPURAMU
Present: K.V.L. Harinath Chairman-cum-Presiding Officer
Thursday the Fourth (4 th ) Day of October, 2018
I.D.No.198/2015
Between:
The Depot Secretary, APSRTC, Employees Union, Madanapalli-I Depot, Representing Sri A.Venkataramana, E.550740, Conductor.… Petitioner/Workman
AND
1)The Depot Manager, A.P.S.R.T.C, Madanapalle I Depot, Madanapalle , Chitoor dist.
2)The Regional Manager, A.P.S.R.T.C, Tirupathi, Chitoor dist. … Respondents / Management
This is an Industrial Dispute existing between the Workman and the Management and it is referred by the Joint Commissioner of Labour, Kurnool in Proceedings No.D1/1798/2015 dt.20-11-2015 under Section 10(1)(2), 33-C (1) and 34(1) of the Industrial Disputes Act 1947.
This Industrial Dispute coming on 26-9-2018 for hearing before me in the presence of Sri Y. Ramalinga Reddy, Advocate for the Workman and of Sri S.Chandrasekhar, Law Officer for the Respondents / Management and the matter having stood over for consideration till this day the Court passed the following.
A W A R D
1) This Petition is referred by the Joint Commissioner of Labour, Zone-IV,
Kurnool under Section 10(1)(2), 33-C (1) and 34(1) of the Industrial Disputes Act 1947 in his proceedings D1/1798/2015 dt.20-11-2015 for adjudication of the dispute that exists between the Depot Secretary, APSRTC Employees Union,
Madanapalli-I depot, who is representing Workman Sri A.Venkataramana,
E.550740 , Conductor and the Regional Manager, APSRTC, Tirupati.
The issue referred for adjudication is that:
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Whether the Depot Secretary, APSRTC Employees Union, Madanapalle-I Depot is justified in demanding revocation of punishment order No.PA/20(137)/2003-RMT, Dt.13-3-2004 issued by the Regional Manager, APSRTC, Tirupati against the Workman Sri A.Venkatarama, E.550740 by withholding of annual increment for a period of two years with cumulative effect and treating the period of intervening i.e., from the date of removal to the date of reporting for duty as not on duty.
If not, to what relief the Workman is entitled?
2) On receiving notice, the Depot Secretary, APSRTC Employees Union filed Claim statement on behalf of the Workman stating that the Workman was appointed in the year 1996 and discharged his duties sincerely, honestly continuously to the utmost satisfaction of his superiors and while so he was charge sheeted on 2-1-2003 alleging that the Workman absented to his duties from 27-8-2003 to 2-9-2003.
3) According to the Workman, when he was not doing well he could not attend to his duties and nothing more than that, but the Respondent ordered for enquiry. The enquiry conducted against the Petitioner is illegal, invalid and arbitrary. The Enquiry Officer did not follow the principles of natural justice in conducting the enquiry. The findings of the enquiry Officer are not in consonance with the evidence on record. The Depot Manager, without seeing the material on record and with closed and predetermined mind passed the illegal, invalid unjust and arbitrary removal order against the Workman. On appeal, the Regional Manager reinstated the Workman into service and passed the above mentioned punishment against the Workman and therefore they are liable to be set aside. The Workman is entitled for incremental arrears and full wages for the period from the date of removal till the date of reinstatement into service and for refund of the security deposit and prayed to direct the Respondent to pay increment arrears and full wages from the date of suspension till the date of reinstatement and grant such other relief.
4) Per contra, the Respondent / Corporation has filed the Counter stating that the Petitioner was appointed as Casual Conductor on 30-6-1986 and subsequently his services were regularized w.e.f 1-7-1987 and during his service, he was censured on seven occasions and his annual increments were deferred for twenty two occasions and thus he is bereft of any clean record or service.
5) The Respondent further contended that the Senior Traffic Inspector of B.Kothakota depot reported that the Petitioner was absent to his duties unauthorizedly from 28-12-2002 to 30-12-2002 i.e., without intimation or prior sanction of leave and due to such absence of the Petitioner much inconvenience was caused in operation of services and there was loss of revenue also to the Corporation, besides inconvenience to the travelling public at large and thus he was charge sheeted on 2-1-2003 with the following charge.
3 “For having absented for your duties from 28-12-2002 to 30-12-2002 unauthorisedly without any intimation or prior sanction of leave causing much inconvenience to the travelling public besides loss of revenue to the Corporation, which constitutes misconduct vide Reg.28 (xxvii) of APSRTC Employees (Conduct) Regulations 1963.
6) Respondent further contended that all relevant documents were supplied to the Petitioner and the Petitioner submitted his explanation also. Having not satisfied with the same and so also with a view of fullest opportunity, it was entrusted to Sri G.Ramachandra, Head Clerk, B.Kothakota Depot for conducting domestic enquiry. He in turn recorded the statements of witnesses besides the statement of Petitioner and the enquiry was conducted in fair and proper manner in accordance with C C & A Regulations duly following the principles of natural justice and basing on the entire evidence available on record, the enquiry officer submitted his report holding that the charge levelled against the Petitioner was proved and therefore the disciplinary authority arrived to a conclusion that it is a fit case to order for removal and accordingly, a show cause notice of removal from service was issued on 9-9-2003 and the Petitioner submitted his explanation and final orders of removal were issued on 9-10-2003. Aggrieved by the same, the workman preferred appeal to the Divisional Manager, Chittoor and the same was rejected on merits vide proceedings order dt.30-11-2003 and the Petitioner again preferred appeal to the Regional Manager, Tirupati and it was considered vide proceedings dt.13-3-2004 and reinstated the Petitioner into service and as a measure of punishment his annual increment is ordered to be with-held for a period of two years with cumulative effect. Review authority taken lenient view and reinstated him into service and the punishment awarded is just. Petitioner was very irregular in attending duties and is habituated for unauthorized absenteeism and therefore the I.D need to be dismissed.
7) During the course of proceedings, the learned Counsel for the Petitioner filed a Memo stating that the Petitioner is not questioning the validity of domestic enquiry procedurally and requested to reappraise the same along with the merits of the case. Keeping in view of the said Memo, the domestic enquiry proceedings are looked into.
8) Ex.W-1 is marked on behalf of the Petitioner and whereas Ex.M-1 to M-11 were marked on behalf of the Respondent by consent.
9) Heard on both the sides.
10) The learned counsel for the Petitioner argued that the Workman was not doing well in between 27-8-2003 to 2-9-2003 and therefore he could not attend for duties and for such simple absence the Respondent Corporation framed the charges against him and for that the Workman gave the explanation and submitted circumstances under which he could not attend for his duties, but by conducting a formal enquiry the Depot Manager concerned with predetermined mind passed 4 illegal, invalid and unjust orders of removal and on being aggrieved by the same the Workman also preferred appeal before the Regional Manager and he was pleased to set aside the orders of removal, but ordered for deferment of annual increment for a period of two years with cumulative effect and treating the period of intervening i.e., from the date of removal till the date of reporting for duty as not on duty. And on that he also preferred review, but it was not materialised and therefore he was constrained to make representation before the Assistant Commissioner of Labour for conciliation.
11) The learned Counsel for the Petitioner further submitted that, having conducted enquiry in respect of the absence from 27-8-2003 to 2-9-2003, the disciplinary authority looked into other absent period also and taking the same into consideration, for which no charges were framed, he ordered for punishment and therefore such punishment itself is illegal, because no opportunity was given to him to explain about such absence. To substantiate his contention the learned counsel
for the Petitioner also cited the judgment of our Hon’ble High Court in Writ Appeal
No.769/2005 in the matter of M.Murali Krishna Vs. APSRTC Musheerabad Hyderabad; Judgment in W.P.No.6869/2004 in the matter of P. Muni Raju Vs. Depot Manager, Proddatur and Judgment in W.A.No.324/1990 in between Depot Manager, APSRTC, Charminar depot Vs. K.Jelman Reddy.
12) Per contra the learned Law Officer for the Respondent Corporation argued that, when the disciplinary authority passed the orders of punishment in the year 2004, the Petitioner approached the Court in the year 2015 i.e., after lapse of 11 years and by virtue of the Judgment of Hon’ble High Court of A.P reported in 2013 (3) ALT-711 in the matter of P.V.Narayana and other etc Vs. A.P State Road Transport Corporation and others such delay can not be condoned. The Petitioner used to work as Conductor since 30-6-1986 and subsequently his services were regularised w.e.f 1-7-1987 and thereafter he was censured on seven times and his annual increments were also deferred on twenty two occasions and therefore there was no clean record.
13) Coming to the factual aspects, the Senior Traffic Inspector B.Kothakota depot reported that from 28-12-2002 to 30-12-2002 the Workman was absent for his duties unauthorizedly and without any intimation or prior sanction of leave and because of such act of the Workman the services were dislocated for want of conductor and thereby caused much inconvenience to the travelling public at large besides loss of revenue to the corporation and therefore because of such prima facie evidence available on record a charge sheet was served on him and conducted domestic enquiry through Sri G.Ramachandra Head Clerk of B.Kothakota depot and he in turn recorded the statements of witnesses including the Workman and sufficient opportunity was given to the Workman/delinquent employee by following the principles of natural justice and finally enquiry officer submitted the report stating that the charges levelled against him are proved. The Disciplinary authority, 5 having considered not only the absent period under enquiry, but also the subsequent unauthorized absence of the Workman and ordered for removal from service, but however keeping in view of the family of the Workman etc., the appellate authority was pleased to pass the orders of reinstatement and as a matter of fact he does not deserve for such leniency also and it seems on the ill advise of some of his colleagues simply ignited the matter after 11 years and there are no merits and therefore the Petition may be dismissed.
14) As far as the citations are concerned they are not applicable to the present case on hand, because the disciplinary authority, of course, looked into the other absence period also, but the punishment was given only to the absent period for which the charges were made and enquiry was conducted and hence the present petition may be dismissed.
15) The reference was made by the Assistant Commissioner of Labour cum Conciliation Officer Madanapalli only with regard to the issue that was placed before him by the Workman through their union in respect of the so called punishment given to the Workman because of his alleged unauthorised absence from 27-8-2003 to 2-9-2003.
The points for consideration are that:
1. Whether the punishment given to the Workman is related to the absent period of 27-12-2002 to 30-12-2002 or 27-8-2003 to 2-9-2003? And if so, whether the present punishment is without domestic enquiry as alleged?
2. Whether the punishment given is disproportionate to the misconduct alleged?
POINT No.1:
16) It is true that the Workman submitted through the union a conciliation application in the year 2015 and the Assistant Commissioner of Labour Madanapalli in turn referred the same to the Joint Commissioner of Labour Kurnool Zone and he in turn finally referred the same to the court, and all such correspondence shows the Workman A.Venkataramana E.No.550740 worked as Conductor at B.Kothakota depot was issued charge sheeted alleging that he was absent for duties from 27-8-2003 to 2-9-2003 and for that he replied that he could not attend for such duties only because of illness and the punishment given by the authority concerned is illegal and unjust etc. The material filed by the Respondent Corporation is marked as ex.M- 1 to Ex.m-11.
17) It is true that the enquiry report dt. 25-6-2003 was submitted by one G.Ramachandra Head Clerk B.Kothakota depot to the Depot manager B.Kothakota under Ex.M-4 and on that the said Depot Manager B.Kothakota issued show cause notice by referring to the said enquiry report alone under Ex.M-7 and the proceedings under Ex.M-8. When the Depot Manager B.Kothakota disciplinary authority ordered for removal from service and when the same was served under 6
Ex.M-9 acknowledgement the Workman preferred appeal before the Divisional Manager Chittoor but he was pleased to reject the same under Ex.M-10. However the Regional Manager entertained the review petition and issued proceedings of modified punishment i.e., he set aside the orders of removal and ordered for reinstatement into service with immediate effect and ordered for deferment of one annual increment for a period of two years with cumulative effect etc. Therefore on perusal of all such documents it is clear all the authorities concerned were pleased to look into and relied upon the enquiry report dt.25-6-2003 alone.
18) Therefore now it has to be looked into that what exactly Ex.M-4 enquiry report speaks. It shows that the Enquiry was conducted when the senior Traffic Inspector of B.Kothakota addressed a letter to the Depot Manager about the unauthorized absence of the Workman A.V.Ramana, when he was absent from his duties unauthorizedly from 27-12-2002 to 30-12-2002. Enquiry officer was pleased to look into Ex.M-1 letter addressed by the Senior traffic inspector B.Kothakota depot to the Depot Manager APSRTC B.Kothakota on 2-1-2003 about his unauthorized absence from 28-12-2002 to 30-12-2002 and the said letter is dated 2- 1-2003.
19) Ex.M-2 is the charge sheet served on the delinquent employee Workman A.V.Ramana about his unauthorized absence from 28-12-2002 to 30-12-2002. The same was served under Ex.M-3 acknowledgement. The statement of the delinquent employee was also recorded by the enquiry officer on 25-6-2003 and on the same day the enquiry officer prepared the report and sent the same to the depot manager concerned. The said statement of the delinquent employee is also one of the documents under Ex.M-4. Therefore from Exs.M-1 to Ex.M-4 it is clear that the said enquiry report dt.25-6-2003 is speaking about the enquiry conducted against the delinquent employee in respect of the unauthorized absence period from 28-12- 2002 to 30-12-2002 only.
20) Of course it is true that on 1-9-2003 the very same STI B.Kothakota addressed a letter to the Depot manager APSRTC B.Kothakota under Ex.M-5 about the unauthroized absence of the very same Workman A.V.Ramana from 27-8-2003 till date of the said letter. Therefore it is clear that by the date the depot manager cum disciplinary authority issued show cause notice on 9-9-2003 he was having not only enquiry report dt.25-6-2003 on hand, but also the report dt.1-9-2003 about the unauthorized absence of the Petitioner Venkataramana from 27-8-2003 till 1-9- 2003. Therefore by considering the enquiry report dt.25-6-2003, which refers to the enquiry with regard to unauthorized absence dt. 28-12-2002 to 30-12-2002, he issued show cause notice and in such context he also referred to about subsequent absent period of 27-8-2003 to 2-9-2003 and thereby proposed punishment of removal from service. In the said show cause notice it was referred to in paragraph No.2 that the attendance particulars of the delinquent employee for a period of one year was also referred to and came to conclusion he is chronic absentee and 7 thereby he is not profitable employee to the Corporation and thereby decided to send him back and therefore proposed punishment of removal from service.
21) Since there was no rely or explanation from the side of the delinquent employee the disciplinary authority was constrained to order for removal from service on 9-10-2003 under Ex.M-8.
22) Even as can be seen from Ex.M-10 proceedings passed by the Divisional Manager Chittoor, the very same period of absence from 28-12-2002 to 30-12-2003 was referred to. Ex.M-11 is the proceedings of Regional Manager, Tirupati and he also referred the very same period and set aside the orders of removal and ordered for reinstatement but with deferment of increment.
23) Therefore for all practical purposes right from the Depot Manager of B.Kothakota till Regional Manager, Tirupati they have referred to about the absent period of 28-12-202 to 30-12-2002 alone, but incidentally they referred to about subsequent period of absence also while discussing about the entire conduct and attitude of the delinquent employee and merely because they also referred to about the punishment period from 27-8-2003 to 2-9-2003, it cannot be considered as it is the punishment relating to the absent period of 27-8-2003 to 2-9-2003.
24) It is true that no separate enquiry was conducted in respect of the above absent period. It is true that the deferment of increment with cumulative effect is major punishment and it can be awarded only after conducting regular domestic enquiry and it is only gist of judgment cited by the learned counsel for the Petitioner. But here is a case where such period was incidentally referred to, but actual punishment was given only in pursuance of the report under Ex.M-4 dt.25-6- 2003, which shows about conducting of enquiry relating to the unauthorized absence period from 28-12-2002 to 30-12-2002.
25) But mischievously the Workman with the support of the union filed the present I.D by getting it referred through Joint commissioner of labour as if the punishment was awarded without conducting domestic enquiry etc. Therefore this point is decided in favour of the respondent Corporation and against the Petitioner.
POINT No.2:
26) Coming to the quantum of punishment, the Court has to look into the proportionality by looking into the circumstances around. It is true that unauthorized absence that was complained of was only three days i.e., from 28-12-2002 to 30-12- 2002, but the pitiable situation is, the delinquent employee, despite service of charge sheet under Ex.M-3, he did not offer any explanation. So also when the show cause notice was served by the disciplinary authority he did not offer his explanation even for the same. Thereby the delinquent employee / Workman did not put forth any reason for his unauthorised absence and he did not intimate the authorities concerned in advance or even submitted the medical certificate within a 8 reasonable period, but he simply said to have sent the sick certificate thereafter. This attitude clearly shows not only the negligence but also lethargitic attitude in his duties. Even while the enquiry was under the process he again remained absent from 28-8-2003 to 2-9-2003, for which he said to have sent the doctor certificates at a subsequent point of time and that too when the punishment was given in the year 2004, he knocked the doors of justice again in the year 2015 i.e., after 11 years. The astonishing point herein is that even in the claims statement filed by the Petitioner he did not assert not even a single reason for not approaching the Court of justice for about 11 years. Therefore under these circumstances there are no reasons to interfere with the punishment, but however keeping in view of his age and ailments, besides family condition this Court feels that it is just and appropriate to reduce the punishment.
In the result the punishment imposed by the Regional Manager APSRTC dt.13- 3-2004 is modified to an extent of one year with cumulative effect from the date of Award and without any earlier monetary benefits.
Accordingly Award is passed.
Dictated to the Incharge Steno-Typist, transcribed by him, corrected and passed by me on this the 4 th day
of October, 2018.
Sd/-K.V.L HARINATH
Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,
ANANTAPURAMU.
APENDIX OF EVIDENCE
WITNESS EXAMINED
FOR PETITIONER:FOR RESPONDENT:
-None- -None-
DOCUMENTS MARKED
FOR PETITIONER:
1)Ex.W-1 Dt.13-3-2004Proceedings of the Regional Manager, APSRTC, Tirupati.
FOR RESPONDENT:
1)Ex.M-1 Dt.2-1-2003Report of the STI B.Kothakota depot.
2)Ex.M-2Dt.2-1-2003Charge sheet.
3)Ex.M-3Dt.-Acknowledgment of the Petitioner.
4)Ex.M-4Dt.25-6-2003Domestic enquiry report.
5)Ex.M-5Dt.1-9-2003Report of the STI, B.Kothakota depot.
6)Ex.M-6Dt.-Sick certificate submitted by the petitioner.
7)Ex.M-7Dt.9-9-2003Show cause notice for removal from service.
8)Ex.M-8Dt.9-10-2003Proceedings of the disciplinary authority.
9)Ex.M-9Dt.-Acknowledgment of the petitioner.
10)Ex.M-10Dt.30-11-2003Proceedings oftheAppellate Authority.
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11)Ex.M-11Dt.13-3-2004Proceedings of the Review Authority.
Sd/-K.V.L HARINATH
Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,
ANANTAPURAMU.