Sri S.Ramanaiah, Chairman, Labour Court, ATP

1

BEFORE THE CHAIRMAN-CUM-PRESIDING OFFICER,

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ANANTHAPURAMU

Present: Sri S.Ramanaiah, Chairman-cum-Presiding Officer

WEDNESDAY THE 26TH DAY OF APRIL, 2023

I.D.No.20/2020

Between: Saginala Nagaraju, S/o S.Pullanna, Aged 43 years, E.No.427114, Ex.Driver, D.No.8/17-3, Indiranagar, Atmakur (Mandal), Kurnool (District)…. Petitioner

AND

1)The Depot Manager, A.P.S.R.T.C., Adoni Depot.

2)The Deputy Chief Traffic Manager, A.P.S.R.T.C, Kurnool.

3)The Regional Manager, A.P.S.R.T.C, Kurnool. … Respondents

This Industrial Dispute coming on 25-04-2023 before me in the presence of Sri P.Ramachandra, Advocate for the Petitioner and Sri S.Chandrasekhara, Law Officer of the Respondents and the matter having stood over for consideration till this day the Court passed the following.

A W A R D

This Industrial Dispute is existing between the Petitioner and the Respondents and it is a direct filing of the Claim

Statement under Sec. 2-A (2) of the Industrial Disputes Act, 1947.

2)The brief averments of the Claim Petition are as follows.

Petitioner was appointed as Contract Driver in the Respondent

Corporation in the year 2007 and his services regularized in the year 2010. From the date of joining, he discharged his duties sincerely, honestly, continuously and to the utmost satisfaction of his superiors, while that was so, a charge sheet dated 12-09- 2018 was issued against him with the following charge:

2 “For having absented for your duties from 23-04-2018 and remained absent to till date i.e., 12-09-2018 without obtaining any prior permission or sanction of leave. Due to your unauthorized absence caused much inconvenience to the Traffic Supervisors in arranging alternative, for operation of services and also caused for late operations/cancellation of services. With the result, causing much inconvenience to the travelling public besides loss of revenue to the Corporation due to cancellation of services which constitutes misconduct under Reg.28 (xxvii) of APSRTC Employees’ (Conduct) Reg.1963”.

It is submitted that while the Petitioner was proceeding for duty on 23-4-2018, he met with a motor bike accident and received head injury and sent to the Government General Hospital, Kurnool and took treatment and the doctors advised him to take care and treatment for 23-4-2018 to 12-9-2018 and gave sick certificate and the same was sent to the Respondent along with co-driver but the Respondent did not consider the same and marked absent.

Further Petitioner could not restore normal health and the head injury was infected and the cardiac problem persisted due to which the doctor gave extension sick certificate from 13-9-2018 to 30-10-2018 and the same was also sent to depot but the

Respondent did not consider the same and treated as absent.

Workman after getting normal health he reported for duty along with fit certificate w.e.f 31-10-2018 onwards. After going to the depot the Assistant Manager advised him to attend for enquiry and he informed to the Assistant Manager that besides his ill health during the sick period his mother was also fell ill and his brother was also expired and he faced lot of problems and there was delay in recouping health. After conducting enquiry

Petitioner was sent for duty on 31-10-2018 as per the fit certificate submitted by him. On the same day i.e., 31-10-2018 a show cause notice of removal served on the Petitioner for the subsequent absenteeism of the Petitioner from 27-12-2018 to 9-1- 3 2019 Respondent without issuing charge sheet and without conducting enquiry Petitioner was removed from service.

A farce enquiry was conducted, only Petitioner was examined and no management witnesses were examined and no opportunity provided to the Petitioner to cross examine the management witness. The charge relates to the absence of 143 days from 23-4- 2018 to 12-9-2018 but the enquiry officer gone beyond the charge and proved that the Petitioner was absent for 190 days.

Respondent has not served the domestic enquiry report on the

Petitioner and no comments and objections were called before imposing capital punishment of removal from service. Enquiry is not in accordance with the principles of natural justice and the enquiry officer failed to take into consideration the material on record and the punishment of removal is highly unjustified.

Respondent failed to take into consideration the material on record. Mercilessly Respondent removed the Petitioner from service though Petitioner has filed valid sick certificates.

Petitioner is a poor man surviving with wife and children. He is out of employment and unable to get job anywhere as he is over aged. Hence prayed the Court to provide livelihood to his family.

Petitioner prays to set aside the removal order passed by the 1st

Respondent vide proceedings dated 5-3-2019 and the orders of the appellate authorities as illegal and to direct the Respondents to reinstate the Petitioner into service with continuity of service, with full back wages and with all attendant benefits.

3)Respondent filed Counter denying the allegation of the

Petition and submitted that the Petitioner was appointed as

Contract Driver in the Respondent Corporation on 21-4-2007 and subsequently his services were regularized w.e.f 1-1-2010 and his date of retirement is 30-4-2037. Petitioner is bereft of clean record. Amounts were recovered from his salary for 2 times, annual increments deferred for 2 times in different cases. He was 4 removed on one time for his involvement in alcohol case, later he was reinstated into service by the Deputy Chief Traffic Manager,

Anantapur on 21-9-2016.

As per the report of Deputy Superintendent (T), Adoni the

Petitioner was absent for his duties unauthorizedly from 23-4- 2018 and remained absent till date i.e., 12-9-2018 without obtaining any prior permission or sanction of leave due to his unauthorized absence much inconvenience caused to the traffic supervisors in arranging alternative. The services have been cancelled and inconvenience is caused to the travelling public besides loss of revenue to the Corporation. In view of the prima facie case and basing on evidence available on record charge sheet was issued vide charge sheet dated 12-09-2018. Charge sheet was supplied to the Petitioner and he submitted explanation to the charge sheet. In order to provide an opportunity to the

Petitioner, the case was entrusted to the Assistant Manager (T),

Adoni depot for conducting domestic enquiry. During the enquiry statement of concerned was recorded in the presence of the

Petitioner. Petitioner has availed the opportunity to cross examine the witness in the enquiry. A fair and proper enquiry was conducted in accordance with C.C & A Regulations duly following the principles of natural justice. Basing on the evidence on record, enquiry officer submitted report holding that the charge leveled against the Petitioner was proved. 1st Respondent issued show cause notice of removal to the Petitioner and he submitted his explanation. The 1st Respondent issued final orders of removal from service of the Corporation with immediate effect vide proceedings dated 5-3-2019. Petitioner preferred appeal to the Deputy Chief Traffic Manager, Kurnool and the same was rejected on merits. Petitioner preferred review appeal before the

Regional Manager, Kurnool and the same was rejected. Petitioner 5 preferred mercy appeal before the Executive Director, Kadapa and the same was rejected. Therefore, the action taken by the

Respondents for the proved charge is just, legal and proportionate to the gravity of the misconduct committed by the

Petitioner. Therefore, Respondents prays the Court to dismiss the

I.D.

4)During the course of enquiry, learned counsel for the

Petitioner filed Memo stating that there is no domestic enquiry as the enquiry is not conducted as per the principles of natural justice and requested to reappraise the evidence on record and adjudicate the dispute as per the principles of natural justice.

5)No oral evidence adduced on either side. Ex.W-1 to Ex.W-7 are marked on behalf of the Petitioner. Ex.M-1 to Ex.M-15 are marked on behalf of the Respondents.

6)Heard the Counsel for the Petitioner. Learned Law Officer

for the Respondents filed written arguments.

7)Now the points that arise for consideration are; i.Whether the removal order passed by the 1st Respondent against the Petitioner in proceedings No.P2/1/(11)/2018-ADN dated 5-3-2019 is justified?

ii.To what relief?

POINT No.i:

8)It is the contention of the learned counsel for the

Petitioner that as per the charge sheet, Petitioner was absent to duties from 23-4-2018 to 12-9-2018. Where as in the domestic enquiry it is mentioned that the Petitioner was absent to duties for 190 days, and further submitted that no opportunity was given to the Petitioner to cross examine the management witness. It is further submitted that after conducting enquiry Petitioner was sent for duty on 31-10-2018. The disciplinary authority basing on the subsequent absence from 27-12-2018 to 9-1-2019 without 6 issuing charge sheet and without conducting domestic enquiry has passed orders of removal from service.

9)Counsel for the Petitioner further submitted that while

Petitioner was proceeding for duty on 23-4-2018 he met with an accident and received head injury and he had taken treatment from 23-4-2018 to 12-9-2018 and he gave sick certificate and the same was sent to the Respondent. As the injury was infected and the cardiac problem persisted due to which he extended his sick from 13-9-2018 to 30-10-2018 and he submitted fit certificate on 31- 10-2018 and without considering the case of the Petitioner he was unjustly removed from service. Further the punishment of removal is disproportionate to the alleged misconduct.

10)On the other hand the learned Law Officer for the

Respondents submitted that enquiry was conducted in accordance with the CC&A Regulations duly following the principles of natural justice. As the charge against the Petitioner was proved, he was removed from service. Action taken by the Respondents meets the ends of natural justice and removal of the Petitioner from service is proportionate to the gravity of the misconduct committed by him.

11)In view of the arguments submitted by the learned counsel

for the Petitioner and the learned Law Officer for the

Respondents, I would like to go through the material on record.

Ex.M-1 is the report of the Deputy Superintendent, Adoni where it is mentioned that Petitioner was absent for duties from 23-4-2018 to 12-9-2018. Basing on the report, a charge sheet under Ex.M-2

dated 12-9-2018 was issued where it is mentioned that the

Petitioner was absent to duties from 23-4-2018to 12-9-2018 without obtaining prior permission or sanction of leave.

Assistant Manager (T) was appointed as Enquiry Officer and he submitted enquiry report, where in no charge is mentioned but

Nagaraju Petitioner/Delinquent employee and one Pampaiah were 7 examined on 30-10-2018. The date in the statements is altered as 30-10-2018. On the statement of witnesses signature of enquiry officer are not found place.

12)At this stage the learned counsel for the Petitioner submitted that the enquiry was not conducted in accordance with the principles of natural justice and no management witness was examined. No opportunity was given to the Petitioner to cross examine the management witness. On perusal of statement of the

Deputy Superintendent it is stated that Petitioner was absent for duties from 23-4-2018 to 12-9-2018 without prior information and he continuously absent up to 30-10-2018. Delinquent employee stated that he fell down from the motor bike and due to ill- health he could not attend for duties. He also stated that he was bed ridden and that he could not give sick certificate. In the findings, enquiry officer stated that Petitioner was absent to duties from 24-3-2018 to 30-4-2018 i.e., 190 days. No where management witness stated that Petitioner was absent to duties from 23-4-2018 to 30-4-2018. In the enquiry report there is no mention of charge that the Petitioner was absent from 23-4-2018 to 12-9-2018. Nowhere said period of charge is reflected in the enquiry report. Further enquiry officer mentioned that Petitioner was absent from 23-4-2018 to 30-4-2018. There is no mention in the enquiry report that the absence of the Petitioner was willful. Basing on the enquiry report, a show cause notice of removal was issued under Ex.M-7. In the said show cause notice there is no mention that the Petitioner was absent to duties from 23-4-2018 to 30-10-2018 i.e., 190 days, no dates are mentioned in the enquiry report. In the show cause notice it is mentioned that

Petitioner was absent for 190 days where as the absence period mentioned in the show cause notice is not covered i.e., from 23- 4-2018 to 30-10-2018. In the charge sheet absent period mentioned as from 23-4-2018 to 12-9-2018. At this stage the learned counsel 8

for the Petitioner submitted a decision reported in

W.P.No.2451/2011 in between M.N. Reddy Vs. APSRTC and others where His Lordship held; “It is essential that every disciplinary authority must confine his scrutiny and consideration to the material covered by the disciplinary enquiry proceedings. The enquiry proceedings were required to be confined to the material relating to the charges only. It can hardly be in doubt that the alleged absence of the Petitioner from service between 17-5- 2002 to 2-6-2002 could not have formed part of the charge sheet drawn on 10-10-2000 which is nearly one and half years prior to the said unauthorized period of absence. Therefore, the Depot manger could not have referred to the subsequent misconduct of the Petitioner. Whether the subsequent period of absence has triggered the order of punishment of removal from services passed by the Depot Manger is a question, which relates to realm of imagination. Clearly the Depot Manager is at fault in taking into account and consideration another set of misconduct allegedly committed by the Petitioner, which does not form part of the allegations thrown against him in the charge sheet, dated 10-10-2000. It is rather unfortunate that the Divisional Manager, in exercise of his power as an appellate authority, also committed the same error while passing orders on 11-3-2003.

Here in this case the Respondent taking into consideration of the absence of the Petitioner from 23-4-2018 to 30-10-2018 stated that the charge leveled against the Petitioner was proved and accordingly show cause notice of removal from service was issued to the Petitioner and finally removed the Petitioner from service.

In the judgment submitted by the learned counsel for the

Petitioner in between M.N. Reddy Vs. APSRTC and others it is mentioned that “Depot Manager is at fault in taking into account and consideration another set of misconduct allegedly committed by the Petitioner.” Here in this case on hand the Depot Manager removed the Petitioner from service for the absence from 27-12- 2018 to 9-1-2019 which shows he has no interest in his job and no alertness even after serving of show cause notice of removal. So the absence period shown in the removal proceedings is not 9 covered under charge. So the above said judgment is aptly applicable to the facts on case.

13)Petitioner submitted his explanation to the charge sheet under Ex.M-3 dated 12-9-2018, stating that his mother was bed ridden and his brother died and his health condition was not good and he has to look after his family and he suffered economic problems and his health condition is not good and suffering with chest pain and he has been taking treatment. He also submitted explanation to the show cause notice of removal under Ex.M-9

dated 26-11-2018 where he stated that he could not attend for

duties from 9-5-2018 to 12-9-2018 and his mother's health is not good and he has been suffering with chest pain and he requested to take him into duty. Petitioner filed documents under Ex.W-4 to

Ex.W-7 which are sick certificates issued by the medical Officer,

Kurnool valid from 24-3-2018 to 12-9-2018 and another sick certificate under Ex.W-5 valid from 13-9-2018 to 30-10-2018 and fit certificate under Ex.W-6 dated 31-10-2018. Ex.W-7 is the sick certificate from 27-12-2018 to 9-1-2019.

14)In the proceedings of the Disciplinary Authority Ex.M-11 it is mentioned that explanation which is submitted by the

Petitioner is not convincing and not satisfactory. The learned

Counsel for the Petitioner submitted that Petitioner was taken to duty for some period and he was again removed from service. A perusal of Ex.M-12 show that Petitioner was absent for duties from 23-4-2018 to 30-10-2018 and Petitioner attended for duties from 1-11-2018 to 27-12-2018 and again he was absent for duties from 28-12-2018 to till the date of removal i.e., 5-3-2019.

15)In this case charge sheet was issued on 12-9-2018 for the absence period from 23-4-2018 to 12-9-2018 and domestic enquiry conducted on 31-10-2018 and show cause notice of removal was issued on 1-11-2018. So as per Ex.M-12 Petitioner attended for duties, from 1-11-2018 to 27-12-2018 and Petitioner submitted 10 explanation on 26-11-2018 to the show cause notice and he worked till 27-12-2018. So Petitioner was absent for duties from 28-12- 2018 to 5-3-2019. As per removal order Ex.M-11 it is mentioned that Petitioner was absent to his duties from 27-12-2018 to 9-1- 2018. As per Ex.M-12 he attended duty on 27-12-2018 also but where as it is mentioned in the removal order Ex.M-11 that

Petitioner was absent to duties from 27-12-2018 to 9-1-2019. The removal order passed on 5-3-2019. So Petitioner was removed from service for the subsequent absenteeism. So in view of the above judgment submitted in M.N. Reddy Vs. APSRTC and others supra

Petitioner was removed from service, and no charge sheet was issued for the subsequent absenteeism and no enquiry was conducted. Learned counsel for the Petitioner submitted the decision of Hon'ble Supreme Court of India in C.A.No.7087/2002 in between union of India & others vs. Bishamber Das Dogra which is with regard to past conduct of the delinquent employee. The fats of the above cited decision are not applicable to the facts of the case on hand. Petitioner was removed from service basing on his subsequent absenteeism.

16)The learned Law Officer for the Respondents submitted the decision of Hon’ble High court of Karnataka in W.A.No.2666/2011

at Bengaluru in between Bengalore Metropolitan Transport

Corporation Vs. V.Ramawamy where Their Lordships held at para-7;

The workman absented himself without any reason and without prior permission or sanction of leave. He then chose not to participate in the enquiry proceedings despite having been served with the notice of enquiry. Earlier also he absented himself from duty for substantial periods, because of which minor punishment had been awarded. This time he absented for nearly two years. A public Corporation (BMTC), which has a statutory obligation to provide transportation to the citizens, cannot run with employees (specially drivers) who proceed on leave without permission or grant of sanctioned leave. This is a case of a chronic defaulter as it is not once, but the workman in question had been unauthorisedly absent on several occasions earlier also. In North-Eastern Karanataka RT Corporation-Vs- Ashappa (2006) SCC (L&S) 942, the Apex Court in a similar case of Conductor of a transport Corporation, 11 where also the question was dismissal of bus Conductor where he remained absent for three years, ahs in paragraph-8of the judgment held as under:

“Remaining absent for long time, in our opinion, cannot be said to be a minor misconduct. The appellant runs a fleet of buses. It is a statutory organization. It has to provide public utility services. For running the buses, the service of the Conductor is imperative. No employer running a fleet of buses can allow an employee to remain absent for long time. Respondent had been given opportunities to resume his duties. Despite such notices, he remained absent. He was found not only to have remained absent for a period of more than three years, his leave records were seen and it was found that he remained unauthorisedly absent on several occasions. In this view of the matter, it cannot be said that the misconduct committed by the respondent herein has to be treated lightly”

Facts of the above case are not applicable to the case on hand. Enquiry is with regard to charge that Petitioner was absent from duties from 23-4-2018 to 12-9-2018. The said absence period is not mentioned in the enquiry report. Further Petitioner was not given opportunity to cross examine the management witness.

Further Petitioner attended duty for the period from 1-11-2018 to 27-12-2018 when the process of removal was pending. It is also mentioned in Ex.M-13 proceedings of the review authority that the

Petitioner attended for duty from 1-11-2018 to 27-12-2018 and again Petitioner absent for duties from 28-12-2018. So Petitioner was removed from service for the subsequent absenteeism. On perusal of material on record gives an impression that the removal proceedings passed by the Disciplinary Authority is not justified. As per the enquiry report Petitioner was absent to duties from 23-4-2018 to 30-10-2018 but where as he attended for duties from 1-11-2018 to 27-12-2018. In the said circumstances, basing on the enquiry report the Petitioner was removed from service on the subsequent absenteeism for that no charge and no explanation called for and no enquiry was conducted. Therefore, the orders passed by the Disciplinary Authority removing the

Petitioner from service in proceedings dated 5-3-2019 is not justified and the same is liable to be set aside.

12

POINT No.ii:

17)In the result, the Petition is allowed in part. The removal proceedings issued by the 1st Respondent vide proceedings

No.P2/1(11)/2018-ADN dated 5-3-2019 and the Orders of the

Appellate Authorities are set aside. The Respondents are directed to reinstate the Petitioner in to service with continuity of service. Petitioner is not entitled for back-wages and other attendant benefits on the principle of ‘no work no pay’.

Accordingly the Award is passed.

Dictated to the In-charge Steno-Typist, transcribed by him,

corrected and passed by me on this the 26th day of April, 2023.

Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,

ANANTHAPURAMU.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

FOR Petitioner:FOR Respondent:

-None- -None-

DOCUMENTS MARKED

FOR PETITIONER:

1)Ex.W-1Dt.5-3-2019Proceedings of the Depot Manager, Adoni.

2)Ex.W-2Dt.30-4-2019Proceedings of the Deputy Chief Traffic Manager, Kurnool.

3)Ex.W-3Dt.22-11-2019Proceedings of the Regional Manager, Kurnool.

4)Ex.W-4Dt.-Sick certificate.

5)Ex.W-5Dt.-Sick certificate.

6)Ex.W-6Dt.-Fit Certificate.

7)Ex.W-7Dt.-Sick certificate.

FOR RESPONDENT:

1)Ex.M-1Dt.12-9-2018Report of the Dy. Superintendent (T), Adoni depot.

2)Ex.M-2Dt.12-9-2018Charge sheet.

3)Ex.M-3Dt.12-9-2018Petitioner explanation to the CS.

4)Ex.M-4Dt.18-10-2018Nomination of Enquiry officer.

5)Ex.M-5Dt.30-10-2018Enquiry call letter to the Petitioner.

13

6)Ex.M-6Dt.31-10-2018Domestic enquiry report.

7)Ex.M-7Dt.1-11-2018Show cause notice for removal from service.

8)Ex.M-8Dt.-Acknowledgement and certification.

9)Ex.M-9Dt.26-11-2018Petitioner explanation to the SCN.

10)Ex.M-10Dt.29-12-2018Report of the Assistant Manager (T), Adoni depot.

11)Ex.M-11Dt.5-3-2019Proceedings of the Disciplinary Authority.

12)Ex.M-12Dt.30-4-2019Proceedings of the Appellate Authority.

13)Ex.M-13Dt.22-11-2019Proceedingsofthereview authority.

14)Ex.M-14Dt.30-1-2020ProceedingsoftheAppeal Authority.

15)Ex.M-15Dt.-Service Record of the Petitioner.

Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,

ANANTHAPURAMU.

Compared by:

Read by:

1

BEFORE THE CHAIRMAN-CUM-PRESIDING OFFICER,

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ANANTHAPURAMU

Present: Sri S.Ramanaiah, Chairman-cum-Presiding Officer

WEDNESDAY THE 3rd DAY OF MAY, 2023

I.D.No.1/2021

Between: K.Munwar Basha @ K.M Basha, Aged 41 years, S/o Sikhinder, Ex.Contract Driver, C.13863, 8/132, Simham Veedhi, B.Kothakota, Chittoor District.…. Petitioner

AND

1)The Depot Manager, A.P.S.R.T.C., Madanapalle-1, Chittoor District.

2)The Deputy Chief Traffic Manager, A.P.S.R.T.C, Chittoor.

3)The Regional Manager, A.P.S.R.T.C, Tirupathi, Chittoor District.

3)The Executive Director, A.P.S.R.T.C, Nellore zone, Nellore. … Respondents

This Industrial Dispute coming on 02-05-2023 before me in the presence of Sri Y.Ramalinga Reddy, Advocate for the Petitioner and Sri S.Chandrasekhara, Law Officer of the Respondents and the matter having stood over for consideration till this day the Court passed the following.

A W A R D

This Industrial Dispute is existing between the Petitioner and the Respondents and it is a direct filing of the Claim

Statement under Sec. 2-A (2) of the Industrial Disputes Act, 1947.

2)The brief averments of the Claim Petition are as follows.

Petitioner was appointed as Contract Driver in the Respondent 2

Corporation in the year 2006. From the date of joining he discharged his duties sincerely, honestly, continuously and to the utmost satisfaction of his superiors. While that was so, a charge sheet was issued against him on 18-03-2009 with the following charges:

1. “For having absented to your duties from 09-03-2009 to till date unauthorizedly without prior permission of the competent authority which resulted in dislocation of service besides loss of revenue to the Corporation, which constitutes misconduct under Reg.28 (xxvii) of APSRTC Employees (Conduct) Regulations, 1963”.

2. For having maintained irregular attendance resulting in 47 man days lost due to availing 16 leaves and produced sick for 21 days and also absented for duties for a period of 10 days since last one year which reveals that you are habituated absentee and irregular in attending to duties, which constitutes misconduct under Reg.28 (xxvii) of APSRTC Employees (Conduct) Regs.1963.

The charges that were leveled against the Petitioner are false and baseless. Petitioner has not committed any misconduct as alleged in the charge sheet much less under APSRTC Employees (Conduct) Regulations. It is submitted that Petitioner was suffering with acute unhealthy and he informed about his sick to the depot authorities in time, but the depot authorities did not consider his sick and marked as absent for the above period. The

Petitioner also submitted that, he was not absent for his charted duties intentionally or willfully but due to acute health condition. Having satisfied with the explanation, the Petitioner was allowed to his duties. As such the Petitioner has not committed any misconduct as alleged in the charge sheet. For the afore said reason and under those circumstances the charges that are leveled against him are false and baseless.

A farce enquiry was conducted. Enquiry is illegal and invalid, enquiry officer has failed to take into consideration the material on record and that the enquiry is liable to be held 3 as invalid. A show cause notice was issued to the Petitioner.

Surprisingly, the Depot Manager further alleging that ”the

Petitioner again absented to his duties from 20-3-2009 to 16-6- 2009" for which no charge sheet was issued and without conducting any enquiry in violation of the principles of natural justice passed the illegal, invalid, unjust and arbitrary removal order against the Petitioner vide proceedings No.E1/1(24)/2009-MPL-1

dated 25-6-2009. Petitioner was not well as such he could not

attend for his duties and the same was explained to the depot authorities. The punishment of removal is shockingly disproportionate. The removal order is liable to be set aside in view of the orders in W.A.No.769/2005.

Depot Manager removed the Petitioner from service by order

dated 25-6-2009 and he made appeal to the 2nd Respondent and the

appeal was rejected. The appeal made to the 3rd Respondent was also rejected.

Petitioner is a poor man surviving with wife, aged parents and two school going children. He has no other source of income except the earnings from the job and from the date of removal from service he is out of employment and in spite of his best efforts he could not secure any alternative employment.

Therefore, he pray the Court to pass an Award holding that the removal order passed by the 1st Respondent in the proceedings

No.E1/1/(24)/2009-MPL-I dated 25-6-2009 is illegal and the same may be set aside and direct the Respondents to reinstate the

Petitioner into service with continuity of service with full back wages and with all other attendant benefits.

3)Respondent filed Counter denying the allegation of the

Petition and submitted that the Petitioner was appointed as

Contract Driver in the Respondent Corporation on 23-07-2007 and the date of retirement from service of the Corporation is 30-6- 4 2039. Petitioner is bereft of clean record. Amounts recovered 03 time in his service. In the present absenteeism case he was removed from service.

A contract employee (Drivers/Conductors) enters into the agreement while joining the Corporation with the following terms and conditions.

a) His/Her engagement as Driver on contract basis for a limited period subject to medical fitness.

b) The contract engagement is terminable on either side by issuing one month’s written notice.

c) If he/she absents for more than 3 days continuously or more than three occasions in a month, the agreement of contract service stands terminated without issuing any notice.

d) He/She shall not indulge in any activity detrimental to the interest of Corporation. Her conduct should not tarnish the image of the corporation.

e) He/She shall be responsible for the safe custody of the corporation property.

f) He/She shall be responsible for carrying out the duties to the full satisfaction of the Unit officer/Supervisor/Superior Officials.

As per the report of Deputy Superintendent (T), Madanapalli-1 depot, the Petitioner was absent from duties unauthorisedly from 9-3-2009 to till date (18-3-2019) without any intimation or prior sanction of leave. Due to absent for duty the operation of services has been suffered. Due to sudden absence services have been cancelled to certain extent and inconvenience is caused to the travelling public besides loss of revenue to the Corporation.

Petitioner availed 16 days leave and produced sick for 21 days and absent for duties for a period of 10 days since last one year which reveals that he is habituated absentee and irregular in attending to his duties. In view of the prima facie case and basing on evidence available on record a charge sheet dated 18- 03-2009 was issued to the Petitioner and other relevant documents were supplied to the Petitioner on 18-3-2009. Petitioner has submitted explanation to the charge sheet on 18-3-2009. In order to provide an opportunity to the Petitioner, the case was 5 entrusted to the Superintendent (P), Madanapalli depot for conducting domestic enquiry. Enquiry Officer has sent call letters to the Petitioner's residential address to attend the enquiry. Copy of the call letters was exhibited on the traffic section notice board. During the course of enquiry statements of the concerned were recorded in the presence of the Petitioner.

Petitioner availed the opportunity of cross examining the witness in domestic enquiry. A fair and proper exparte enquiry was conducted in accordance with C.C & A Regulations, duly following the principles of natural justice. Basing on the evidence available on record, Respondent came to conclusion that the charge leveled against the Petitioner was held proved for which penalty of removal from service is appropriate punishment to be imposed and accordingly Respondent issued show cause notice of termination dated 18-4-2009 to the Petitioner. Petitioner has submitted explanation to the show cause notice of termination on 21-5-2009 and requested to take him to duty. Respondent, in order to give an opportunity to the Petitioner taken him to duty, but

Petitioner again absent to duties on 24-6-2009 and 25-6-2009. So the 1st Respondent has issued final orders of termination of contract service vide proceedings No.E1/1(24)/2009-MPL-1 dated 25-6-2009. Upon the termination order, Petitioner has preferred an appeal before the Deputy Chief Terrific Manager, Chittoor and the same was rejected and he also preferred review before the

Regional Manager, Tirupati and the same was rejected by the

Review Authority dt.27-02-2019. Petitioner also preferred mercy appeal before the Executive Director, Nellore zone and the same was rejected dated 31-7-2019. The action taken by the Respondents is just and proportionate to the gravity of the misconduct committed by him. Therefore the Disciplinary Authority has rightly taken decision to meet the ends of justice and the 6 punishment is proportionate to the gravity of the misconduct committed by the Petitioner and hence pray the Court to dismiss the I.D.

4)During the course of enquiry, learned counsel for the

Petitioner filed Memo stating that Petitioner is not questioning the validity of the domestic enquiry procedurally and prayed the

Court to reappraise the evidence on record and to adjudicate the dispute as per the provisions under Sec. 11-A of the I.D Act 1947.

5)No oral evidence adduced on either side. Ex.W-1 & Ex.W-2 are marked on behalf of the Petitioner. Ex.M-1 to Ex.M-15 are marked on behalf of the Respondents.

6)Heard the Counsel for the Petitioner. Learned Law Officer

for the Respondents filed written arguments.

7)Now the points that arise for consideration are; i.Whether the termination order passed by the 1st Respondent against the Petitioner in proceedings No.E1/1/(24)/2009-MPL-1dated26-6-2009 is justified?

ii.To what relief?

POINT No.i:

8)The learned counsel for the Petitioner submitted that the allegation leveled against the Petitioner is that the Petitioner was absent for duties from 9-3-2009 till 18-3-2009 constitutes misconduct under Regulation 28 (xxvii) of APSRTC employees (Conduct) Regulations, 1963. For that Petitioner submitted explanation and the enquiry was conducted, show cause notice of termination was issued and Petitioner submitted his explanation to the show cause notice of termination. The disciplinary authority passed termination orders on 25-6-2009, where in it is mentioned at end of page No.2 that ; "Accordingly, a show cause notice of termination of contract engagement agreement was issued to him vide reference 5th 7 cited. He has submitted his explanation to the show cause notice of termination of contract engagement agreement on 21-05-2009 vide reference 6th cited wherein he has requested to take him on duty. Hence, he was taken for duty pending further disciplinary action against him so as to give him a chance and not to repeat in future. But it is reported by the T.I Gr.-III/Madanapalli-1 depot vide reference 7th cited that the said driver had unauthorisedly absented for 05-30 hrs., State Border duty on 24-6-2009 and also on 25-6-2009 without any intimation or sanction of leave.

On the explanation of the Petitioner to the show cause notice of termination, Petitioner was taken into service and later

Disciplinary Authority taking into consideration of the subsequent absence of the Petitioner terminated services of the

Petitioner which amounts to arbitrariness as the Disciplinary authority without issuing charge sheet, without conducting domestic enquiry terminated the services of the Petitioner. In this regard the learned counsel for the Petitioner relied upon a decision of the Hon'ble High Court of A.P in Writ Appeal

No.769/2005.

9)On the other hand the learned Law Officer for the

Respondents submitted written arguments and at para-10 of the written arguments it is mentioned that Petitioner submitted explanation to the show cause notice of termination on 21-5-2009 and requested to take him to duty. To give an opportunity, he was taken for duty but again he absented from duties on 24-6-2009 and 25-6-2009. The Respondent issued final orders of termination of contract of services vide proceedings dated 25-6-2009. Learned

Law Officer for the Respondents further submitted that Petitioner absented for duties from 9-3-2008 to 18-3-2008 and he again absented subsequently and the absence of the Petitioner cannot be taken lightly and he relied upon a decision of Hon’ble High Court

of Karanataka in a case between Bangalore Metropolitan Transport

Corporation represented by its Chief Law Officer vs. V.Ramaswamy.

He also relied upon another decision of Hon'ble Supreme Court of 8

India in Civil Appeal No.7087/2002 in between Union of India &

Others Vs. Bishamber Das Dogra.

10)In view of arguments on both sides, I would like to go through the material on record. Ex.M-1 is the report of the

Traffic Inspector-III, Madanapalli-1 depot dated 9-3-2009 where it is mentioned that Petitioner was on leave for 17 days, sick for 12 days and absent for 17 days. Ex.M-2 is report of the

Traffic Inspector-II, Madnapalli-1 depot dated 18-3-2009 where it is mentioned that Petitioner was absent for duties from 9-3-2009 to till date i.e., 18-3-2009. Basing on the said reports, a charge sheet was issued to the Petitioner under Ex.M-3.

Petitioner submitted explanation to the charge sheet under Ex.M-4 where he stated that his health condition was not good and he obtained medical certificate from P.T.M Medical Doctor and it was sent through a Conductor. He further stated that his wife's health condition was not good and during pregnancy a female child died. Ex.M-5 is the domestic enquiry report dated 18-3-2009 where two charges, No.1 is that the Petitioner was absent from duties from 9-3-2009to 18-3-2009. During the enquiry statements of

G.V.Venaktaraman Deputy Superintendent (T) and the Petitioner were recorded. G.V.Ramana Deputy Superintendent (T) stated that

Petitioner was absent to his duties from 9-3-2009 to 18-3-2009.

Petitioner stated that his wife was pregnant of 8 months she suffered with ill-health and phone call received from her parents and he took his wife to doctor, so he could not attend for duties. Enquiry Officer given finding that the charges leveled against the Petitioner are proved. Basing on the enquiry report a show cause notice of termination was issued to the Petitioner and

Petitioner submitted his explanation under Ex.M-8 on 21-05- 2009.The Deputy Superintendent (T), Madanapalli-I depot stated during the enquiry that the delinquent had absented for 5-50 9 hrs., state boarder duty on 9-3-2009 unauthorisedly, further he has reported that the delinquent has continuously absent for duties from 9-3-2009 to 18-3-2009 and submitted sick certificate issued by the Medical Officer, Primary Health Centre on 4-3-2009 to cover up the above absence period. It is evident from the statement of Deputy Superintendent that Petitioner has submitted sick certificate for his absence. Enquiry Officer has not considered the sick certificate submitted by the Petitioner. The

Disciplinary Authority in his termination proceedings under Ex.M- 10 dated 25-6-2009 mentioned that Petitioner was taken to duty pending further disciplinary action and as the report of the Dy.

Superintendent-III, Petitioner was further absented to duty on 24-6-2009and 25-6-2009. Learned counsel for the Petitioner submitted that Petitioner submitted that the Respondent has not issued any charge sheet for the subsequent absenteeism and no enquiry was conducted for the said period and the sick certificate submitted by the Petitioner was not considered and he relied upon a decision of the Hon’ble High Court of A.P in

W.A.No.769/2005 wherein held; “In view of the above circumstances, we do not agree with the findings of the learned Single judge that the proceedings passed by the 2nd respondent removing the Petitioner for the absenteeism for the period from 6- 8-2004 to 10-8-2004 as well as 16-10-2004 to 9-10-2004 is not in violation of the principles of natural justice and that the said period of absence from 16- 10-1994 to 19-10-2004 might have been mentioned incidentally, and therefore, the order impugned herein, is liable to be set aside.

11)Herein in this case Petitioner was allowed for duties and when he absented on 24-6-2009 and 25-6-2009 he was terminated from service for the subsequent absenteeism.

The learned Law Officer submitted the decision of the

Hon’ble High Court of Karanataka in a case between Bangalore

Metropolitan Transport Corporation represented by its Chief Law

10

Officer vs. V.Ramaswamy. I have gone through the judgment whether the Workman was absent for a period of 1 year 8 months; wherein at para-7 of the said judgment held;

He then chose not to participate in the enquiry proceeding despite having been served with the notice of enquiry. Earlier also he absented himself from duty for substantial periods, because of which minor punishment had been awarded. This time he absented for nearly two years. A public Corporation (BMTC), which has a statutory obligation to provide transportation to the citizens, cannot run with employees (specially drivers) who proceed on leave without permission or grant of sanctioned leave. This is a case of a chronic defaulter as it is not once, but the workman in question had been unauthorisedly absent on several occasions earlier also. In North-Eastern Karanataka RT Corporation-Vs-Ashappa (2006) SCC (L&S) 942, the Apex Court in a similar case of Conductor of a transport Corporation, where also the question was dismissal of bus Conductor where he remained absent for three years, ahs in paragraph-8of the judgment held as under:

“Remaining absent for long time, in our opinion, cannot be said to be a minor misconduct. The appellant runs a fleet of buses. It is a statutory organization. It has to provide public utility services. For running the buses, the service of the Conductor is imperative. No employer running a fleet of buses can allow an employee to remain absent for long time. Respondent had been given opportunities to resume his duties. Despite such notices, he remained absent. He was found not only to have remained absent for a period of more than three years, his leave records were seen and it was found that he remained unauthorisedly absent on several occasions. In this view of the matter, it cannot be said that the misconduct committed by the respondent herein has to be treated lightly”

It is also observed that the employer hold a proper enquiry and the charges have been proved. Earlier also workman also absent for duties for substantial period and he absent for duties for nearly 2 years. In the said circumstances Hon’ble Supreme Court held in view of the misconduct committed by the Respondent it cannot be treated lightly.

12)In the case on hand no previous punishments are there and the charge is for the absence for duties from 9-3-2009 to 18-3- 2009 and Petitioner also submitted sick certificate but the same was not considered and subsequently he was taken on duty and for 11 subsequent absenteeism he was terminated from service. For the subsequent absence there is no charge, no enquiry. Therefore facts of the reported judgment are not applicable to the facts of the case on hand.

13)The learned Law Officer submitted another decision of the

Hon’ble Supreme court of India in Civil Appeal No.7087/2002 where

the points for consideration are (1) Whether the delinquent employee is not supposed to establish de-facto prejudice in case the enquiry report is not supplied to him before awarding punishment? (2) Whether the order of punishment would be vitiated if the Disciplinary Authority takes into consideration the past conduct of the delinquent employee for the purpose of punishment?

The facts of the above cited judgment are not applicable to the case on hand. For the absence period from 9-3-2009 to 18-3-2009 no punishment was given and further Petitioner was taken for duty and for the subsequent absence of the Petitioner on 24-6-2009 and 25-6-2009 no charge sheet issued and no domestic enquiry was conducted.

14)On perusal of the record, Petitioner was terminated from service on 25-6-2009 and he preferred appeal to the Deputy Chief

Traffic Manager, Chittoor on 20-10-2018 and the same was rejected and then Petitioner preferred review appeal before the Regional

Manager on 15-2-2019 and the same was rejected on 27-2-2019.

Petitioner preferred mercy appeal to the Executive Director on 6- 7-2019 and the same was rejected on 31-7-2019. Where in it mentioned that Petitioner prefer appeal after lapse of 9½ years and that the appeal was rejected as time barred. So the learned

Law Officer for the Respondent submitted that Petitioner filed this I.D with abnormal delay. Petitioner was removed from service in the year 2009 and he filed the I.D before in the year 2021 and there is long delay on the part of the Petitioner in approaching 12 the Court. Whereas the learned counsel for the Petitioner submitted that there is no limitation prescribed for filing I.D and the amendment 2 (A) (3) came into force w.e.f 15-09-2010 and that the limitation is not applicable to the case on hand. There is no limitation prescribed and amendment of Section 2(A)(3) is prospective in nature and that the I.D cannot be thrown away, however the relief can be moulded accordingly.

15)Disciplinary Authority has not issued charge sheet for the subsequent absenteeism and no domestic enquiry was conducted, so the action of the Respondent in terminating the Petitioner from service is unjustified and disproportionate. So the Court is inclined to reinstate the Petitioner as a fresh Contract Driver.

POINT No.ii:

16)In the result, the Petition is allowed in part. The termination proceedings issued by the 1st Respondent vide proceedings No.E1/1(24)/09-MPL-1 dated 25-6-2009 and the Orders of the Appellate Authorities are set aside. The Respondents are directed to reinstate the Petitioner in to service as a fresh

Contract Driver.

Accordingly the Award is passed.

Dictated to the In-charge Steno-Typist, transcribed by him,

corrected and passed by me on this the 3rd day of May, 2023.

Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,

ANANTHAPURAMU.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

FOR Petitioner:FOR Respondent:

-None- -None-

DOCUMENTS MARKED

FOR PETITIONER:

13

1)Ex.W-1Dt. 25-6-2009Copy of proceedings of the Depot Manager, APSRTC, Madanapalli-I depot.

2)Ex.W-2Dt.31-7-2019Copy of proceedings of the ExecutiveDirector,APSRTC, Nellore zone, Nellore.

FOR RESPONDENT:

1)Ex.M-1Dt.9-3-2009Report of the TI-3 of Madanapalli- 1 Depot.

2)Ex.M-2Dt.18-3-2009Report of the TI-2 of Madanapalli- 1 Depot

3)Ex.M-3Dt.18-3-2009Charge sheet.

4)Ex.M-4Dt.18-3-2009Petitioner explanation to the charge sheet.

5)Ex.M-5Dt.18-3-2009Domestic enquiry report.

6)Ex.M-6Dt.18-4-2009Show cause notice for removal from service.

7)Ex.M-7Dt.-Acknowledgment.

8)Ex.M-8Dt.21-5-2009Petitioner explanation to the show cause notice.

9)Ex.M-9Dt.24-6-2009Report of the TI-3, Madanapalli-1 depot.

10)Ex.M-10Dt.25-6-2009Proceedings of the Disciplinary Authority.

11)Ex.M-11Dt.-Acknowledgment & certification.

12)Ex.M-12Dt.6-12-2009Proceedings of the Appellate Authority.

13)Ex.M-13Dt.27-2-2019ProceedingsoftheReview Authority.

14)Ex.M-14Dt.31-7-2019ProceedingsoftheAppeal Authority.

15)Ex.M-15Dt.-Service Record of the Petitioner.

Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,

ANANTHAPURAMU.

Compared by:

Read by:

1

BEFORE THE CHAIRMAN-CUM-PRESIDING OFFICER,

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ANANTHAPURAMU

Present: Sri S.Ramanaiah, Chairman-cum-Presiding Officer

SATURDAY THE 29TH DAY OF APRIL, 2023

I.D.No.83/2019

Between: J.Shankaraiah, Aged 55 years, S/o Pitchaiah, Conductor, E.No.400503, Flat No.306, 4th Floor, Bhoomi Green Park Apartment, Near Eassar petrol Station, Rajampet-516115, Y.S.R. Kadapa District. …. Petitioner

AND

1)The Depot Manager, A.P.S.R.T.C., Rajampet Depot, Kadapa District.

2)The Deputy Chief Traffic Manager, A.P.S.R.T.C, Kadapa Kadapa District

3)The Regional Manager, A.P.S.R.T.C, Kadapa, Kadapa District.

3)The Executive Director, A.P.S.R.T.C, Kadapa zone, Kadapa, Kadapa Dist. … Respondents

This Industrial Dispute coming on 28-04-2023 before me in the presence of Sri Y.Ramalinga Reddy, Advocate for the Petitioner and Sri S.Chandrasekhara, Law Officer of the Respondents and the matter having stood over for consideration till this day the Court passed the following.

A W A R D

This Industrial Dispute is existing between the Petitioner and the Respondents and it is a direct filing of the Claim Statement under Sec. 2-A (2) of the Industrial Disputes Act, 1947.

2)The brief averments of the Claim Petition are as follows.

Petitioner was appointed as Conductor in the Respondent Corporation in the year 1986 and his services were regularized in the year 1987. From the date of joining he discharged his duties sincerely,

honestly to the utmost satisfaction of his superiors, while that

2 was so, a charge sheet was issued against him on 20-02-2008 with the following charges:

1. “For having absented to your duties from 10-12-2007 to till date unauthorisedly without prior sanction of leave or prior intimation of your immediate Supervisor due to which the operations badly dislocated besides inconvenience to the travelling public, which constitutes misconduct as per Regulation 28 (xxvii) of APSRTC Employees (Conduct) Regulations 1963.

2. For having maintained irregular attendance maintained by you from December 2007 to February 2007 which constitutes misconduct as per Regulation 28 (xxvii) of APSRTC Employees (Conduct) Regulations 1963.

The charges that were leveled against the Petitioner are false and baseless. Petitioner has not committed any misconduct as alleged in the charge sheet much less under APSRTC Employees (Conduct)

Regulations. It is submitted that due to ill-health he could not attend for duties and submitted sick certificate issued by

Government doctor, Rajampet from time to time from 10-12-2007 to 31-3-2008. Petitioner undergone treatment for jaundice and taken “Naatuvaidyam”. When the Petitioner was not well and while undergoing treatment, an exparte enquiry was conducted. Due to ill-health only Petitioner had not attended for duties. Therefore, the charges leveled absent him are false.

A farce enquiry was conducted when the Petitioner was not well and while he was undergoing treatment. Enquiry Officer failed to take into consideration the material on record and that the enquiry is liable to be held as invalid and the enquiry officer had violated the principles of natural justice. The Depot Manager in violation of the principles of natural justice passed the illegal, invalid, unjust and arbitrary removal order against the Petitioner.

The punishment of removal is shockingly disproportionate and it is liable to be set aside.

Petitioner is a poor man surviving with wife and 2 children and he has no other source of income except earnings from the job and from the date of removal from service he is out of employment and in spite of his best efforts he could not secure any 3 alternative employment. Amendment to Section 2 (A)(3) of the I.D

Act is prospective. Therefore, he pray the Court to pass an Award holding that the removal order passed by the 1st Respondent dated 19-7-2008 is illegal and the same may be set aside and direct the

Respondents to reinstate the Petitioner into service with continuity of service with full back wages and with all other attendant benefits.

3)Respondent filed Counter denying the allegation of the

Petition and submitted that the Petitioner was appointed as Casual

Conductor in the Respondent Corporation on 13-3-1986 and subsequently he was regularized w.e.f 1-7-1987. Petitioner is bereft of clean record. He was censured for 9 times, amounts recovered for 2 times and annual increments deferred for 10 times in different cases. Petitioner was suspended 1 time. He was removed on 21-01-2003 for his involvement in absenteeism case at

Badvel depot and he was reinstated by the Divisional Manager,

Proddatur on 10-3-2003 and posted to Pulivendula depot, as a measure of punishment his present basic pay reduced by two incremental stages for a period of 2 years which shall have effect on postponing his future increments. In the present absenteeism case he was removed from service on 19.07.2008.

4)The Deputy Superintendent (T), Rajampet sent report to the

Depot Manager that the Petitioner was absent to his duties from 10- 12-2007 to till date unauthorisedly without prior sanction of leave or prior intimation of his immediate supervisor, due to which the operations work badly dislocated besides inconvenience to the travelling public. Later Petitioner has submitted RTC sick to cover up the absence period. From 10-12-2007 to February 2008 Petitioner was sick for 82 days. Basing on the prima face evidence available on record, 1st Respondent has issued charge sheet on 22-2-2008 against the Petitioner. Charge sheet was supplied to the Petitioner and the same was acknowledged by him, but he failed to submit explanation to the charge sheet. In order to provide an opportunity 4 to the Petitioner, the case was entrusted to the Assistant Manager (T), Rajampet depot for conducting enquiry. During the enquiry statements of concerned were recorded in the absence of the

Petitioner. Petitioner failed to avail the opportunity to cross examine the witness. So the enquiry officer has conducted an exparte enquiry since the Petitioner did not attend for enquiry, later the same was exhibited on the notice board of the traffic section and obtained two witnesses as having exhibited the same.

Charges leveled against the Petitioner were proved beyond reasonable doubt. Thus a fair and proper ex-parte enquiry was conducted into the case in accordance with CC&A Regulations duly following the principles of natural justice. Accordingly a show cause notice of removal was issued to the Petitioner on 30-6-2008 and the same was acknowledged but failed to submit his explanation.

Then the Respondent has issued final orders of removal from service of the Corporation with immediate effect vide proceedings dated 19- 7-2008. Upon the removal proceedings Petitioner has preferred appeal to the Deputy Chief Traffic Manager, Kadapa and the same was rejected as time barred vide proceedings dated 18-11-2017. Then

Petitioner has preferred review appeal to the Regional Manager,

Kadapa and the same was rejected on merits vide proceedings dated 19-5-2018. Petitioner has preferred mercy appeal to the Executive

Director, Kadapa zone, Kadapa and the same was rejected as time barred vide proceedings dated 27-7-2019. The Disciplinary Authority has rightly taken decision of removal from service which will meet the ends of justice and the punishment imposed by the Disciplinary

Authority is proportionate to the misconduct committed by him.

5)In case if health is not good, Petitioner should have attended the APSRTC, Dispensary, Kadapa or before the Respondent in order to direct him to APSRTC hospital, Hyderabad for better treatment but he did not do so. Petitioner approached the Court during the year 2019 after lapse of 11 years. Hence pray the Court to dismiss the

I.D in the interest of justice.

5

6)During the course of enquiry, learned counsel for the

Petitioner filed Memo stating that Petitioner is not questioning the validity of the domestic enquiry procedurally and prayed the

Court to reappraise the evidence on record and to adjudicate the dispute as per the provisions under Sec. 11-A of the I.D Act 1947.

7)No oral evidence adduced on either side. Ex.W-1 to Ex.W-5 are marked on behalf of the Petitioner. Ex.M-1 to Ex.M-13 are marked on behalf of the Respondents.

8)Heard the Counsel for the Petitioner. Learned Law Officer for the Respondents filed written arguments.

9)Now the points that arise for consideration are; i.Whether the termination order passed by the 1st Respondent against the Petitioner in proceedings No.E1/1(17)/08-RJPT dated 19-7-2008 is justified?

ii.To what relief?

POINT No.i:

10)The learned counsel for the Petitioner submitted that due to ill-health, Petitioner could not attend for duty and he submitted sick certificate issued by the Government Doctor from time to time from 10-12-2007 to 31-3-2008. Petitioner had suffered with jaundice and taken “Natuvaidyam”. Enquiry officer has failed to take into consideration the material on record and violated the principles of natural justice. So removal order passed by the disciplinary authority is illegal, unjust.

11)On the other hand the learned Law Officer for the Respondent submitted that Petitioner was unauthorisedly absent for duties from 10-12-2007 to 22-2-2008 without sanction of leave and that much inconvenience caused to the travelling public and the enquiry was ordered but the Petitioner did not appear before the enquiry and that an exparte enquiry was conducted. Enquiry Officer submitted enquiry report that the charges leveled against the Petitioner are proved and that Petitioner was removed from service and further submitted that there is inordinate delay in filing the I.D.

6

Petitioner was removed from service on 19-7-2008 and he preferred appeal to the Deputy Chief Traffic Manager, Kadapa on 28-6-2017 and the same was rejected as time barred and the Petitioner filed this

I.D in the year 2019 after lapse of 11 years from the date of removal, and pray the Court to dismiss the I.D.

12)In view of the arguments on both sides, I would like to go through the material on record. Ex.M-1 is the report of the

Superintendent (T), Rajampet where it is mentioned that the

Petitioner was absent for duty on 10-12-2007 of 12-45 hrs.,

Tirumala N/o service. Subsequently to cover up his absence he submitted sick certificate from 10-10-2007to 29-2-2008. Basing on the report charge sheet has been issued under Ex.M-2 dated 22-2- 2008 for two charges and one is for absent from 10-12-2007 to till date and another is that for having maintained irregular attendance from December 2007 to February 2008. Ex.M-6 is the domestic enquiry report dated 15-4-2008. During the enquiry he has recorded the statement of one V.Paul Superintendent (T), where he stated that the Petitioner was absent for duties from 10-12-2007 and submitted sick certificate on 10-12-2007 and also from time to time up to 31- 3-2008 to cover up his absence. Charge is relating to absence of the petitioner from 10-12-2007 to till date i.e., 22-2-2008 i.e., the date of charge sheet. Enquiry Officer gave finding that as per the statement of Superintendent (T) it is evident that Petitioner was unauthorisedly absent for his duties from 10-12-2007 and he did not appear before the enquiry and that an exparte enquiry was conducted. Charge No.2 covering the absence period of the charge

No.1. So enquiry officer held that the charges leveled against the

Petitioner are proved.

13)Learned counsel for the Petitioner submitted that Ex.M-1 itself shows that Petitioner submitted sick certificate for the period from 10-12-2007 to till 29-2-2008. Statement of the

Superintendent in the enquiry is that the petitioner has submitted sick certificate from 10-12-2007 to 31-3-2008 and the 7

Superintendent (T) also stated that Petitioner submitted sick certificate for his absence period. Enquiry officer has not considered the sick certificate. It is not known as to why enquiry officer has not considered the sick certificate submitted by the

Petitioner and he simply gave finding that petitioner has absent for duties and that it appears that he has no interest on job.

14)The learned Law Officer for the Respondents submitted that

Petitioner was absent for duties unauthorisedly and that the work was dislocated besides causing inconvenience to the travelling public. In this regard he relied upon a decision of Hon’ble High

Court of Karnataka in between Bangalore Metropolitan Transport

Corporation Vs. V.Ramaswamy reported in 2016 3 LLJ 525 where Their

Lordships held at para-7 that;

Earlier also he absented himself from duty for substantial periods, because of which minor punishment had been awarded. This time he absented for nearly two years. A public Corporation (BMTC), which has a statutory obligation to provide transportation to the citizens, cannot run with employees (specially drivers) who proceed on leave without permission or grant of sanctioned leave. This is a case of a chronic defaulter as it is not once, but the workman in question had been unauthorisedly absent on several occasions earlier also. In North-Eastern Karanataka RT Corporation-Vs- Ashappa (2006) SCC (L&S) 942, the Apex Court in a similar case of Conductor of a transport Corporation, where also the question was dismissal of bus Conductor where he remained absent for three years, ahs in paragraph-8of the judgment held as under:

“Remaining absent for long time, in our opinion, cannot be said to be a minor misconduct. The appellant runs a fleet of buses. It is a statutory organization. It has to provide public utility services. For running the buses, the service of the Conductor is imperative. No employer running a fleet of buses can allow an employee to remain absent for long time. Respondent had been given opportunities to resume his duties. Despite such notices, he remained absent. He was found not only to have remained absent for a period of more than three years, his leave records were seen and it was found that he remained unauthorisedly absent on several occasions. In this view of the matter, it cannot be said that the misconduct committed by the respondent herein has to be treated lightly”

I have gone through the judgment wherein workman has not submitted explanation before the enquiry officer and the absence period is 8 one year eight months. Here in this case, on hand, petitioner was absent from 10-12-2007to till 22-2-2008 i.e., 75 days. The report of the Superintendent (T) itself shows that the Petitioner submitted sick certificate. It is not known as to why the sick certificate was not considered by the Respondent. Petitioner submitted sick certificates to the Respondent and the same can not be brush aside and it cannot be taken lightly and it has to be ascertained whether the petitioner was really sick and if sick certificate submitted by him is genuine or not and the enquiry is on those lines. Statement of the Superintendent (T) was recorded which is also evident that petitioner was absent for duties and submitted sick certificate from time to time, if it is so, without considering the medical certificate whether genuine or not, the enquiry officer simply given finding that the petitioner was absent for the duties and that the charges are proved. First of all it is not known as to why medical certificates were not considered.

Petitioner submits that due to ill-health only he could to attend for duties and submitted sick certificates and he also under gone treatment for jaundice and taken ‘Natuvaidyam’.

15)In the removal orders (Ex.M-9) it is mentioned at page No.2 that; “The A.M (T)/RJPT in his enquiry report stated that call letter was sent to the house address of the delinquent by R.P.A.D to attend for enquiry on 9-4-2008 and 12-4- 2008 or 15-4-2008. But the letter which was sent to his house address was returned by the Postal Authorities stating that the addressee is not in village. The A.M (T) further reported that the delinquent had produced sick from 10-12-2007 to 29-2-2008 and from 01-03-2008 onwards he never submitted any sick certificate and did not attend to this office even today which shows that he is not at all interested in the conductor job and he might have secured better job and hence he had absented to his duties till today.”

On perusal of the statement of the Superintendent (T) he stated that Petitioner submitted sick certificate from time to time from 10-12-2007 to 31-3-2008 and from 31-3-2008 he has not submitted sick certificate. Where as in the Ex.M-9 it is mentioned that A.M (T) reported that delinquent has produced sick certificate from 10- 9 12-2007 to 29-2-2008 and from 1-3-2008 onwards he never submitted any sick certificate, which is contrary to the statement of the

Superintendent in the enquiry. As per Superintendent (T) Petitioner submitted sick certificate up to 31-3-2008. Further it is not the contention of the Respondent that sick certificate submitted by the

Petitioner is not genuine. Petitioner submitted medical certificates issued by the Medical Officer, if the Respondent got any doubt on the medical certificate then the Medical Officer who has issued medical certificate has to be examined. Further

Petitioner has not been sent for medical examination as to know the sick submitted by him is genuine or not. In the said circumstances removing the petitioner from service for the absence on the ground of sick is not justified.

16)The learned Law Officer for the Respondents submitted that there is an abnormal delay of 11 years in filing the I.D. Learned counsel for the Petitioner submitted that the amended Section 2(A) (3) prescribes limitation of 3 years from the date of removal.

Whereas the Petitioner was removed in the year 2008 by then the amendment of 2(A)(3) provision was not in existence and the said amended provision has no retrospective effect and it has only prospective effect and that this proviso is not applicable to the case on hand. There was no limitation prescribed prior to commencement of the amendment, however the I.D should be filed within reasonable time. No where it is mentioned in the claim statement, the reasons for not filing the I.D within reasonable time. However, in view of the delay alone, I.D cannot be thrown away, however the relief can be modified. Accordingly this point is answered.

POINT No.ii:

17) In the result, the I.D is allowed in part. The removal order passed by the 1st Respondent vide proceeding No.E1/1(17)/08-RJPT

dated 19-9-2008 and the orders of the Appellate Authorities are set

aside. The Respondents are directed to reinstate the Petitioner in 10 to service without continuity of service from the date of removal till the date of passing of this Award. Petitioner is not entitled for back-wages and attendant benefits on the principle of “no work no pay”.

Accordingly the Award is passed.

Dictated to the In-charge Steno-Typist, transcribed by him,

corrected and passed by me on this the 29th day of April, 2023.

Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,

ANANTHAPURAMU.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

FOR Petitioner:FOR Respondent:

-None- -None-

DOCUMENTS MARKED

FOR PETITIONER:

1)Ex.W-1Dt.19-7-2008Copy of proceedings of the Depot Manager, Rajampeta.

2)Ex.W-2Dt.18-11-2017Copy of proceedings of the Dy. Chief Traffic Manager, Kadapa.

3)Ex.W-3Dt.19-5-2018Copy of proceedings of the Regional Manager, Kadapa.

4)Ex.W-4Dt.27-7-2019Copy of proceedings of the Executive Director, Kadapa.

5)Ex.W-5Dt.Copy of pay slip for the month of August 2007.

FOR RESPONDENT:

1)Ex.M-1Dt.20-2-2008Report of the Superintendent (T), Rajampet depot.

2)Ex.M-2Dt.22-2-2008Charge sheet.

3)Ex.M-3Dt.-Undelivered RPAD cover.

4)Ex.M-4Dt.2-4-2008Call letter for enquiry.

5)Ex.M-5Dt.-Undelivered RPAD cover.

6)Ex.M-6Dt.15-4-2008Domestic enquiry report.

7)Ex.M-7Dt.30-6-2008Show cause notice for removal from service.

8)Ex.M-8Dt.-Acknowledgement of the Petitioner.

9)Ex.M-9Dt.19-7-2008ProceedingsoftheDisciplinary Authority.

10)Ex.M-10Dt.18-11-2017Proceedings of the Appellate Authority.

11)Ex.M-11Dt.19-5-2018Proceedings of the Review Authority.

12)Ex.M-12Dt.27-7-2019Proceedings of the Appeal Authority.

11

13)Ex.M-13Dt.-Service Record of the Petitioner.

Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,

ANANTHAPURAMU.

Compared by: Read by:

1

BEFORE THE CHAIRMAN-CUM-PRESIDING OFFICER,

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ANANTHAPURAMU

Present: Sri S.Ramanaiah, Chairman-cum-Presiding Officer

MONDAY THE 24TH DAY OF APRIL, 2023

I.D.No.2/2021

Between: A.Saravanan, Aged 43 years, S/o A.Arjuna, Ex.Driver, E.555936, 1-10.Chamundeswari Nagar, Doddipali, Chittoor, Chittoor District.…. Petitioner

AND

1)The Depot Manager, A.P.S.R.T.C., Chittoor-2 Depot, Chittoor District.

2)The Deputy Chief Traffic Manager, A.P.S.R.T.C, Chittoor. Chittoor District. … Respondents

This Industrial Dispute coming on 24-04-2023 before me in the presence of Sri Y.Ramalinga Reddy, Advocate for the Petitioner and Sri S.Chandrasekhara, Law Officer of the Respondents and the matter having stood over for consideration till this day the Court passed the following.

A W A R D

This Industrial Dispute is existing between the Petitioner and the Respondents and it is a direct filing of the Claim

Statement under Sec. 2-A (2) of the Industrial Disputes Act, 1947.

2)The brief averments of the Claim Petition are as follows.

Petitioner was appointed as Contract Driver in the Respondent

Corporation in the year 2013. From the date of joining he discharged his duties sincerely, honestly, continuously and to the utmost satisfaction of his superiors. While that was so, a charge sheet dated 20-09-2014 was issued against him with the following charge:

2 “For having unauthorisedly absented for your duties from 31-08-2014 to 12-09-2014 without prior sanction of leave or permission of depot authorities causing dislocation of services thereby much inconvenience in the travelling public besides loss of revenues to the Corporation which constitutes misconduct vide item No. (1), Anenxure-1 of Circular No.PD-5/2009 dated 23-02- 2009.”

The charge that was leveled against the Petitioner is false and baseless. Petitioner has not committed any misconduct as alleged in the charge sheet, much less under APSRTC Employees (Conduct)

Regulations. It is submitted that Petitioner was not willfully absented for duties but he was forced to stay away from the duty due to acute domestic problems. In fact the Petitioner sent communication to this effect through his friend and does not possess copy of the communication sent. In spite of submitting explanation about the fact and the reasons to the Depot Manager,

Chittor-2, the Depot Manager imposed punishment of termination from service with immediate effect. As such the Petitioner could not attend to his duties, for the aforesaid reasons and under those circumstances the charge leveled against the

Petitioner is false and baseless. Petitioner made appeal to the 2nd Respondent to set aside the termination orders but the same was not considered.

A farce enquiry was conducted. The enquiry is illegal and invalid and the enquiry officer has failed to take into consideration the material on record. Enquiry is liable to be held as invalid and it is in violation of the principles of natural justice. Petitioner could not attend to his duties and the same was explained to the depot authorities. The punishment of termination is shockingly disproportionate and it is liable to be set aside.

Petitioner is a poor man surviving with wife and 2 daughters. He has no other source of income except earnings from 3 the job and from the date of termination from service, he is out of employment and in spite of his best efforts he could not secure any alternative employment. Therefore, he pray the Court to pass an Award holding that the termination order passed by the 1st Respondent in the proceedings No.P1/1/(43)/2014-CTR.2 dated 10-6-2015 is illegal and the same may be set aside and direct the

Respondents to reinstate the Petitioner into service with continuity of service with full back wages and with all other attendant benefits.

3)Respondent filed Counter denying the allegation of the

Petition and submitted that Petitioner was appointed as Contract

Driver in the Respondent Corporation on 9-8-2013 and the date of retirement from service of the Corporation is 30-4-2037.

Petitioner is bereft of clean record. He was termination on one time for his involvement in absenteeism case, later he was reinstated into service by the Deputy Chief Traffic Manager,

Chittoor.

A contract employee (Drivers/Conductors) entered into the agreement while joining the Corporation with the following terms and conditions.

a) His/Her engagement as Conductor on contract basis for a limited period subject to medical fitness.

b) The contract engagement is terminable on either side by issuing one month’s written notice.

c) If he/she absents for more than 3 days continuously or more than three occasions in a month, the agreement of contract service stands terminated without issuing any notice.

d) He/She shall not indulge in any activity detrimental to the interest of Corporation.

e) Her conduct should not tarnish the image of the corporation.

f) He/She shall be responsible for the safe custody of the corporation property.

g) He/She shall be responsible for carrying out the duties to the full satisfaction of the Unit officer/Supervisor/Superior Officials.

As per the report of Traffic Inspector-3, Chittoor-2 depot the

Petitioner was absent for his duties unauthorisedly from 31-8- 2014 to 12-9-2014 without any intimation or prior sanction of 4 leave. Due to the absence of the Petitioner for duty, the operation of services has been suffered. Due to sudden absence without any notice, the services have been cancelled to certain extent and inconvenience is caused to the travelling public besides loss of revenue to the Corporation. In view of the prima facie case and basing on evidence available on record, charge sheet was issued vide charge sheet dated 20-09-2014. Charge sheet was supplied to the Petitioner by registered post with acknowledgement due, to the address of the Petitioner and acknowledgement was received. Copy of charge sheet was exhibited on the traffic notice board. Petitioner failed to submit his explanation to the charge sheet. In order to provide an opportunity to the Petitioner, the case was entrusted to the

Assistant Manager (T), Chittoor-2 depot for conducting domestic enquiry. Enquiry officer has sent call letters to the Petitioner to attend domestic enquiry by Registered post with acknowledgment due on 3-12-2014 and the same was received. Petitioner has failed to attend the enquiry and that an exparte enquiry was conducted.

A fair and proper enquiry was conducted in accordance with C.C &

A Regulations duly following the principles of natural justice.

Basing on the evidence on record enquiry officer submitted report holding that the charge leveled against the Petitioner was proved. 1st Respondent issued show cause notice of termination to the Petitioner and he failed to submit his explanation. Thus, the 1st Respondent issued final orders of termination from service of the Corporation with immediate effect vide proceedings dated 10- 06-2015. Petitioner preferred appeal to the Deputy Chief Traffic

Manager, Chittoor on 22-9-2020 and the same was rejected as time barred. Therefore, the action taken by the Respondents for the proved charge is just, legal proportionate to the gravity of the 5 misconduct committed by the Petitioner. Therefore, Respondents prays the Court to dismiss the I.D.

4)During the course of enquiry, learned counsel for the

Petitioner filed Memo stating that Petitioner is not questioning the validity of the domestic enquiry procedurally, and prayed the

Court to reappraise the evidence on record and to adjudicate the dispute as per the provisions under Sec. 11-A of the I.D Act 1947.

5)No oral evidence adduced on either side. Ex.W-1 to Ex.W-3 are marked on behalf of the Petitioner. Ex.M-1 to Ex.M-14 are marked on behalf of the Respondents.

6)Heard the Counsel for the Petitioner. Learned Law Officer

for the Respondents filed written arguments.

7)Now the points that arise for consideration are; i.Whether the termination order passed by the 1st Respondent against the Petitioner in proceedings No.P1/1/(43)/2014-CTR-2dated10-6-2015 is justified?

ii.To what relief?

POINT No.i:

8)The learned Counsel for the Petitioner submitted that

Petitioner could not attend for his duties due to domestic problems. In fact he sent communication to the Depot authorities through his friend and in spite of submission of his explanation, the Depot Manager terminated the Petitioner from service. Enquiry is not conducted as per the principles of natural justice and the enquiry is not in accordance with the law and the Depot Manger violated the principles of natural justice and passed illegal termination order against the Petitioner.

9)On the other hand the learned Law Officer for the

Respondents submitted that Petitioner is bereft of clean record, he was terminated once from service in absenteeism case on 20-6- 6 2014 and he was reinstated into service by the Deputy Chief

Traffic Manager, Chittoor. In the present case he was absent to his duties unauthorisedly from 31-8-2014 to 12-9-2014 without any intimation or prior sanction of leave. Due to the absence of the

Petitioner, operation of services were suffered and he is very irregular to his duties. So the 1st Respondent following the due procedure of enquiry and the terms and conditions of agreement terminated him from service on 10-06-2015. Upon the termination order Petitioner preferred appeal to the Deputy Chief Traffic

Manager, Chittoor and the same was rejected. As per the terms and conditions of the agreement he should not absent for more than 3 days continuously or more than 3 occasions in a month. Basing on the report of the Traffic inspector-3 charge sheet was issued and the same was sent o the address of the Petitioner by Registered post with acknowledgment due but he failed to submit his explanation. Enquiry officer sent call letter to the Petitioner’s address by registered post with acknowledgement due and the same was received by him but he failed to attend for the enquiry. So the enquiry officer conducted an exparte enquiry and held that the charge leveled against the Petitioner was proved. Petitioner did not submit explanation to the show cause notice of termination. Finally the the Disciplinary authority passed termination order dated 10-6-2015. So the punishment of termination from service is in accordance with the terms and conditions of agreement and material on record. The punishment of termination from service is just, legal and proportionate and pray the Court to dismiss the I.D.

10)In view of the arguments on both sides, I would like to go through the material on record. Ex.M-1 is the report of the

Traffic Inspector, Chittoor-2 depot dated 12-9-2014. Where it is mentioned that the Petitioner was absent to duties from 31-8-2014 7 to 15-9-2014. The Traffic Inspector sent report on 12-9-2014 but the absence of the Petitioner shown up to 15-9-2014, so it is defective report. During the arguments learned law officer submitted that the report was sent on 12-9-2014 and if it is on correct liens it is not 15-9-2014. Observation of the said date appears to a naked eye as 15-9-2014, the ‘12’ figure is altered as ‘15’. Another report of the Traffic Inspector-3 Chittoor-2 is

dated 12-10-2014 under Ex.M-5 where it is mentioned that

Petitioner was absent for duties from 17-9-2014 to till date i.e., 12-10-2014. Ex.M-2 is the charge sheet it shows that the

Petitioner absent for duties from 31-8-2014 to 12-9-2014.

Domestic enquiry was conducted under Ex.M-8, it consists the following charge; “The charge against him is that he has been un- authorisedly absent for duties from 31-8-2014 to 21-12- 2014 due to which there has been dislocation of services leading to inconvenience to the travelling public besides loss of revenues to the corporation”.

In the enquiry report above said charge is mentioned which shows the absence of the Petitioner from 31-8-2014 to 21-12-2014 and the said absence period nowhere mentioned in theEx.M-1 report or in the Ex.M-5 report of the Traffic inspector-3, Chittoor. In the domestic enquiry report under Ex.M-8 the absent period shown as 31-8-2014 to 21-12-2014. During the domestic enquiry M.Brahmaiah

Deputy Superintendent (T) was examined as management witness and he deposed that the Petitioner was absent to duties from 31-8- 2014, later it was informed to the office of the Depot Manager on 12-9-2014 and 12-10-2014 that there was no intimation from the

Petitioner regarding his absence and the authorities tried to talk with the Petitioner through mobile phone and the phone number was not working.

11)There is no charge that the Petitioner was absent to duties from 31-8-2014 to 21-12-2014. Management witness has not deposed 8 that the Petitioner was absent to duties from 31-8-2014 to 21-12- 2014. The enquiry officer concluded the enquiry with the following conclusion; “His absence for duties for such a long period without intimation clearly shows his negligence towards job”

There is no finding given by the enquiry officer that the absence of the Petitioner is willful. Ex.M-1 shows that the Petitioner was absent to his duties from 31-8-2014 to 15-9-2014, even if it is taken into consideration as 12-9-2014, there is no such charge in the enquiry report. Enquiry report shows that charge with regard to subsequent absenteeism, for that no charge is there. In the said circumstances it can be said that the enquiry is not in accordance with the principles of natural justice. The charge sheet does not reflect the charge shown in the Ex.M-8 and further there is no finding of the enquiry officer that absence of the

Petitioner is willful.

12)The learned Law Officer submitted the decision of the

Hon’ble High Court of Karanataka in a case between Bangalore

Metropolitan Transport Corporation represented by its Chief Law

Officer vs. V.Ramaswamy. I have gone through the judgment whether the Workman was absent for a period of 1 year 8 months; wherein at para-7 of the said judgment held;

A public Corporation (BMTC), which has a statutory obligation to provide transportation to the citizens, cannot run with employees (specially drivers) who proceed on leave without permission or grant of sanctioned leave. This is a case of a chronic defaulter as it is not once, but the workman in question had been unauthorisedly absent on several occasions earlier also. In North-Eastern Karanataka RT Corporation-Vs- Ashappa (2006) SCC (L&S) 942, the Apex Court in a similar case of Conductor of a transport Corporation, where also the question was dismissal of bus Conductor where he remained absent for three years, ahs in paragraph-8of the judgment held as under:

“Remaining absent for long time, in our opinion, cannot be said to be a minor misconduct. The appellant runs a fleet of buses. It is a statutory organization. It has to provide public utility 9 services. For running the buses, the service of the Conductor is imperative. No employer running a fleet of buses can allow an employee to remain absent for long time. Respondent had been given opportunities to resume his duties. Despite such notices, he remained absent. He was found not only to have remained absent for a period of more than three years, his leave records were seen and it was found that he remained unauthorisedly absent on several occasions. In this view of the matter, it cannot be said that the misconduct committed by the respondent herein has to be treated lightly”

13)In the given case the employer hold a proper enquiry and the charges have been proved. Earlier also workman also absent for duties for substantial period and he absent for duties for nearly 2 years.

In this case charge sheet is issued against the Petitioner that Petitioner was absent to duties from 31-8-2014 to 12-9-2014 i.e., for 13 days. Where as in the enquiry report charge is mentioned that the Petitioner was absent to duties from 31-8-2014 to 21-12-2014. The charge mentioned in the charge sheet and the charge mentioned in the enquiry report is different and with different dates. Further the management witness deposed that the

Petitioner was absent for duties from 31-8-2014. Later it was informed to the Depot Manager’s office on 12-9-2014 and 10-10- 2014 that the Petitioner was absent to duties. So charge wise enquiry was not conducted and that there is no evidence that the

Petitioner was absent to duties willfully from 31-8-2014 to 12-9- 2014. The Disciplinary Authority basing on the enquiry report had terminated the Petitioner from service which is not justified and the same is liable to be set aside.

POINT No.ii:

14)In the result, the Petition is allowed in part. The termination proceedings issued by the 1st Respondent vide proceedings No.P1/1(43)/2014-CTR.2 dated 10-6-2015 and the Orders of the Appellate Authority are set aside. The Respondents are 10 directed to reinstate the Petitioner in to service as a fresh

Contract Driver.

Accordingly the Award is passed.

Dictated to the In-charge Steno-Typist, transcribed by him,

corrected and passed by me on this the 24th day of April, 2023.

Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,

ANANTHAPURAMU.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

FOR Petitioner:FOR Respondent:

-None- -None-

DOCUMENTS MARKED

FOR PETITIONER:

1)Ex.W-1Dt.10-6-2015Copy of proceedings of the Depot Manager, APSRTC, Chittoor.

2)Ex.W-2Dt.21-10-2020Copy of proceedings of the Dy. Chief Traffic Manager, APSRTC, Chittoor.

3)Ex.W-3Dt.-Copy of the pay slip.

FOR RESPONDENT:

1)Ex.M-1Dt.12-9-2014Report of the TI-3 of Chittoor-2 depot.

2)Ex.M-2Dt.20-9-2014Charge sheet.

3)Ex.M-3Dt.-Acknowledgement & Certification.

4)Ex.M-4Dt.17-9-2014Nomination of Enquiry officer.

5)Ex.M-5Dt.12-10-2014Report of the TI-3 of Chittoor-2 depot.

6)Ex.M-6Dt.3-12-2014Enquiry call letter.

7)Ex.M-7Dt.-Acknowledgment.

8)Ex.M-8Dt.21-12-2014Domestic enquiry report.

9)Ex.M-9Dt.20-4-2015Show cause notice for removal from service.

10)Ex.M-10Dt.-Acknowledgment & Certificate.

11)Ex.M-11Dt.10-6-2015Proceedings of the Disciplinary Authority.

12)Ex.M-12Dt.-Acknowledgment & Certificate.

13)Ex.M-13Dt.21-10-2020ProceedingsoftheAppellate Authority.

14)Ex.M-14Dt.--Service record of the Petitioner.

11

Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,

ANANTHAPURAMU.

Compared by:

Read by:

1

BEFORE THE CHAIRMAN-CUM-PRESIDING OFFICER,

INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ANANTHAPURAMU

Present: Sri S.Ramanaiah, Chairman-cum-Presiding Officer

FRIDAY THE 5th DAY OF MAY, 2023

I.D.No.99/2019

Between: 1.Smt.N.Sulochana, W/o late T.Siva Sankar @ T.S.Sankar, Aged 27 years. 2.T.Maheswara, S/o.late T.Siva Sankar @ T.S.Sankar, Aged 8 years. (Minor by natural guardian mother Smt.N.Sulochana 1st Petitioner, Residing at Peddacheppalli Village and Post, Kamalapuram Mandal, YSR Kadapa District. …. Petitioners

AND

The Depot Manager, A.P.S.R.T.C., Mydukur Depot, Kadapa District. … Respondent

This Industrial Dispute coming on 04-05-2023 before me in the presence of Sri Y.Ramalinga Reddy, Advocate for the Petitioners and Sri S.Chandrasekhara, Law Officer of the Respondent and the matter having stood over for consideration till this day the Court passed the following.

A W A R D

This Industrial Dispute is existing between the Petitioners and the Respondent and it is a direct filing of the Claim Statement under Sec. 2-A (2) of the Industrial Disputes Act, 1947.

2)The brief averments of the Claim Petition are as follows. This claim statement filed by the LRs of the Workman [T.Siva Sankar].

Workman was appointed as Conductor in the Respondent Corporation in the year 2010 and he discharged his duties sincerely, honestly to the utmost satisfaction of his superiors. While that was so, a charge sheet was issued against him on 13-08-2018 with the following charges:

1. “For having absented to your duty BD-12 service on 20-07- 2018 up to till date un-authorisedly without prior permission or sanction of leave from your supervisors resulting much inconvenience caused to the Traffic Supervisors to book another conductor in your place, resulting much inconvenience caused to the travelling public. It shows gross negligence in your part of duty, 2 which constitutes misconduct underReg.28 of Clause (xxvii) of APSRTC Employees (Conduct) Reg.1963”.

2. For having Cancellation of BD-12 with 304 Kms and loss of revenue Rs.8415/- to the corporation due to your sudden absented for duty on 20-07-2018 resulting much inconvenience caused to the travelling public besides loss of revenue to the corporation. It shows gross negligence in your duty, which constitutes mis-conduct Under Reg-28 of Clause (ix-a) of APSRTC Employees (Conduct) Reg.1963”.

The charges leveled against the Workman are false and baseless. The

Workman had not committed any misconduct as alleged in the charge sheet or under A.P.S.R.T.C Employees Conduct Regulations.

It is submitted that the Workman was suffering from Jaundice.

As such he could not attend to his duties. He has taken treatment from a private Doctor (Country Vaidyam). A false enquiry was conducted when the Workman was not well and undergoing treatment.

The punishment of removal is shockingly disproportionate. Hence removal order passed by the Management is liable to be set-aside.

The Workman died on 29-01-2019, leaving behind his wife and minor son, who are the petitioners herein and from the date of removable from the service, till the date of death of the Workman, the Workman was out of employment and he had no other source of income except from the Job. Therefore, it is prayed the court to pass Award holding that the removable order passed against the

Workman by the Respondent vide Proceedings dated 20-11-2018 as illegal, invalid, unjust and arbitrary and the same may be set- aside and direct the Respondent, to pay full back wages up to the date of death of the Workman i.e., 29-01-2019, with all attendant benefits, death benefits of the Workman to the petitioners.

3)Respondents filed Counter denying the allegations of the

Petition and submitted that Workman was appointed as Contract

Conductor in the Corporation on 19-12-2007 and his services were regularized on 01-01-2010. The date of retirement from service is 28-02-2033. The Workman was censured for 15 times while he was in service and his annual increments deferred for 15 times in his service. Amounts recovered from the salary for 9 times in his 3 service. Previously, he was removed in Absenteeism Case on 23.06.2010 and reinstated subsequently and where his annual increments deferred for a period of one year without cumulative effect. He also involved in Cash and Ticket irregularities case and removed from service on 06-08-2016 and reinstated by the Appeal

Authority and as a measure of punishment his Annual increments deferred for a period of two years with cumulative effect.

In the present case, he was removed from service of the

Corporation on 20-11-2018 for having involved in absenteeism case at Mydukur Depot. It is reported by the Superintendent (T) of

Mydukur Deport the Workman was unauthorizedly absented to his duties from 20-07-2018 to 13-08-2018, due to which much difficulty caused to the Traffic Supervisors of the Depot in operation of services besides causing inconvenience to the traveling public and loss of revenue to the Corporation.

Basing on the prima-facie case, charge-sheet was issued against the Workman and charge-sheet was supplied to him and he acknowledged the same, but he failed to submit his explanation. A domestic enquiry was conducted, wherein the Enquiry Officer sent call letter to the Workman, he acknowledged the same, but did not attend the enquiry and that the Assistant Manager, Mydukur has conducted an Ex-parte Enquiry, in accordance with CC & A

Regulations duly following the principles of natural justice.

Basing on the evidence available on record, the Enquiry Officer came to the conclusion that the charges leveled against the Workman are proved and that issued show-cause notice of removable from service was issued to the Workman and he acknowledged the same and he failed to submit his explanation. The Respondent has issued final orders of removable from service of the corporation with immediate effect on 20-11-2018.

Therefore, the Respondent submits that the action taken by the

Respondent and confirmed by the appellate authorities is 4 proportionate to the gravity of the misconduct committed by the

Workman and prayed the Court to dismiss the I.D.

4)During the course of enquiry, learned counsel for the

Petitioners filed Memo stating that Petitioners are not questioning the validity of the domestic enquiry procedurally and prayed the

Court to reappraise the evidence on record and to adjudicate the dispute as per the provisions under Sec. 11-A of the I.D Act 1947.

5)During the course of enquiry, no oral evidence adduced on either side. Ex.W-1 to Ex.W-5 are marked on behalf of the

Petitioner. Ex.M-1 to Ex.M-11 are marked on behalf of the

Respondent.

6)Heard the learned Counsel for the Petitioners. Learned Law

Officer for the Respondent submitted written arguments.

7)Now the points that arise for consideration are; i.Whether the removal order passed by the Depot Manager vide proceedings No.E1/1(11)/2018-MYDK dated 20-11- 2018 is justified?

ii.To what relief?

POINT No.i:

8)It is the contention of the learned counsel for the

Petitioners that the Workman was suffering with ill health due to jaundice and that he could not attend duties and he has taken treatment from the Private Doctor, whereas the charge sheet was issued against him that he was absented his duties from 20-07-2018 to 13-08-2018 and without conducting proper enquiry he was removed from service and in the domestic enquiry no management witness is examined, inspite of it the enquiry officer held that the charges leveled against the Workman are proved and he further submit that the removable of Workman from service is disproportionate to the gravity of the misconduct.

9)On the other hand the learned law officer for the Respondent filed written arguments and submitted that the Workman was absented 5 to his duties from 20-07-2018 to till date i.e., 13-08-2018 and that much inconvenience caused to the traffic supervisors of the

Depot and charge-sheet was issued to the Workman, he acknowledged the same, but failed to submit explanation. The enquiry was conducted by the Assistant Manager, Mydukur Depot. Call letters of the Enquiry Officer were acknowledged by him, but he failed to attend the enquiry. Enquiry was conducted in accordance with CC & A

Regulations duly following the principles of natural justice. Where the charges leveled against the Workman are proved and show-cause notice was issued to the Workman, but Workman failed to submit his explanation to the show cause notice and that the Respondent issued final orders of removal from service on 20-11-2018. The action taken by the Respondent is just, legal and proportionate to the gravity of misconduct.

10)In view of the arguments of both sides, I would like to go through the material on record. Ex.M-1 is the report of

Superintendent (T), Mydukur depot dated 13-08-2018 where it is stated that the Workman was absent to his duties unauthorizedly from 20-07-2018 to till date 13-08-2018 and due to his unauthorized absence, operation of services effected badly and services are cancelled and much inconvenience caused to the travelling public.

11)Ex.M-2 is Charge-sheet. Where two charges are framed and charge No.1 is that the Workman was absent to his duties from 20- 07-2018 up to till date unauthorizedly, which resulted much inconvenience to the Traffic Supervisors to book another Conductor in his place, resulting much inconvenience caused to the traveling public and is shows gross negligence on the part of the Workman, which constitutes mis-conduct under Regulation 28 of Clauses

(xxvii) of APSRTC Employees (Conduct) Regulations, 1963. Second charge is that due to sudden absence of the Workman, due to cancellation of BD-12 Service, 304 Kms were cancelled and loss of

Revenue of Rs.8,415/- to the Corporation due to his sudden absence 6 for duty on 20-07-2018, resulting much inconvenience caused to the travelling public, besides loss of revenue to the Corporation, which constitutes committed by the Workman constitutes misconduct and Regulation 28 of Clauses (ix-a) of APSRTC Employees (Conduct)

Regulations,1963.

12)Under Ex.M-4, the Management appointed the Assistant Manager,

Mydukur as Enquiry Officer. He conducted domestic enquiry and submitted report under Ex.M-7. Wherein two charges are there in the report and the Enquiry Officer stated that he sent call letter to the residential address of the Delinquent employee asking him to attend for enquiry without fail with evidences if any in support of his case. The Delinquent has failed to attend the enquiry. He stated that even though the Delinquent has provided with three reasonable chances to defend the case, but he failed to attend the enquiry. Hence, an exparte enquiry was conducted duly recording the statement of the booking ADC who attended the enquiry. Hence, charge leveled against the Workman is proved beyond any reasonable doubt.

13)At this stage, learned counsel for the petitioners submitted that the Enquiry Officer has not examined anybody and he simply filed report that the charges leveled against the Workman was proved without any evidence. So the enquiry is not in accordance with the principles of natural justice.

14)On perusal of Ex.M-7 there is reference of report of the

Superintendent (T) and there is no evidence of management witness and the report also not enclosed with the evidence of management evidence which shows that, without examining anybody, Enquiry

Officer submitted report stating that charge leveled against the

Workman was proved. Without examining management witness, giving finding by the Enquiry Officer basing on the M-1 report itself is not in accordance with the principles of natural justice.

7

15)Ex.M-8 is the Show-cause notice of removal of service, wherein it is mentioned that “I have perused the enquiry report together with the material evidences available on records and found the charges leveled against you stands proved beyond any reasonable doubt”. It is also stated that the Enquiry Officer conducted ex- parte enquiry and rightly held that the charges proved against you.

Ex.M-10 is the Proceedings of the Disciplinary Authority and where it is stated that the Enquiry Officer has rightly held the charge proved against the Workman and after giving careful consideration to the entire evidences available on records together with the circumstances of the case, he did not find any valid reason to modify the punishment of removable from the service against the

Workman.

The show cause notice and removable orders both reflected that the management had gone through the enquiry report and the material evidence available on record. Nobody was examined in the enquiry, and basing on Ex.M-1 report of the Superintendent (T) Mydukur

Depot, the Enquiry Officer held that the charge against the Workman was proved.

16)Learned counsel for Petitioners further submit that the

Workman was suffering with jaundice and that he could not attend his duties and the Workman was removed from the service on 20-11- 2018 and he died due to his ill health on 29-01-2019, which shows that his health condition was not good and that the punishment of removable is not proportionate to the gravity of misconduct committed by the Workman.

17)The Enquiry Report itself is not based on the evidence of the management witness and no proper enquiry was conducted and further the alleged absence period is only 20 days i.e., from 20-07-2018 to 13-08-2018. Further, the punishment of removal from service is shockingly disproportionate in view of Section 11 (A) of the 8

Industrial Dispute Act. Hence the removable orders of the

Disciplinary Authority dated 20-11-2018 is not justified.

18)On perusal of the record, there is no explanation for the

Workman for his absence. Though he stated that he was suffering with jaundice and took treatment from private Doctor (Country vaidyam), has not submitted any sick and in the circumstances of the case, Workman is not entitled for back wages and attendant benefits from the date of removal till his death. Accordingly the point is answered.

POINT No.ii:

19) In the result, the I.D is allowed in part. The removal order passed by the Respondent vide proceeding No.E1/1(11)/2018-MYDK

dated 20-11-2018 is set aside. The Respondent is directed to treat

the Workman is in continuous service of the Respondent Corporation till his death i.e., 29-01-2019, and to pay all his death benefits to the Petitioners, except the back-wages and attendant benefits from the date of removal i.e., 20-11-2018 till his death dt.29-01- 2019.

Accordingly the Award is passed.

Dictated to the Steno of 1st ADJ Court, transcribed by him,

corrected and passed by me on this the 5th day of May, 2023.

Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,

ANANTHAPURAMU.

APPENDIX OF EVIDENCE

WITNESS EXAMINED

FOR Petitioner:FOR Respondent:

-None- -None-

DOCUMENTS MARKED

FOR PETITIONER:

1)Ex.W-1Dt.20-11-2018Copy of proceedings of the Depot manger, A.P.S.R.T.C, Mydukur depot.

2)Ex.W-2 ---Copy of Death Certificate

3)Ex.W-3Dt.26-03-2019 Copy of family members

4)Ex.W-4Dt.25-07-2018Circular No.P2/644(2)/2018-PO-III, dt.25-07-2018.

9

5)Ex.W-5 ---Copy of Pay Slip.

FOR RESPONDENTs:

1)Ex.M-1Dt.13-08-2018Report of the Superintendent (T), Mydukur depot.

2)Ex.M-2Dt.13-08-2018Charge sheet.

3)Ex.M-3Dt.-Acknowledgment of the Workman.

4)Ex.M-4Dt.07-09-2018Allotment of Enquiry Officer.

5)Ex.M-5Dt.20-09-2018Call letter for enquiry.

6)Ex.M-6Dt.-Acknowledgement of Workman.

7)Ex.M-7Dt.19-10-2018Domestic Enquiry Report.

8)Ex.M-8Dt.28-10-2018Show Cause Notice of Termination from Service.

9)Ex.M-9Dt.--Acknowledgement of the Workman.

10)Ex.M-10Dt.20-11-2018Proceedings of the Disciplinary Authority.

11)Ex.M-11Dt.-Service Record of the Workman.

Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court,

ANANTHAPURAMU.

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