THE CHAIRMAN, INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT -CUM-
VI ADDL.DIST. & SESSIONS COURT, GODAVARIKHANI.
Present: SRI SAMBASIVA RAO NAIDU, Chairman-cum-Presiding Officer.
FRIDAY, ON THIS THE 26th DAY OF APRIL, 2019
I.D.No. 15 of 2017
Between:-
K.Praveen Kumar, E-305996, Ex.Conductor, S/o.Anjaiah, Age 49 years, Qr.No.C-37, Near Satya Sai Baba Temple, Surya Nagar, Godavarikhani, District Peddapalli. … Petitioner. A N D
1. The Depot Manager, TSRTC, Jagtial Depot.
2. The Deputy Chief Traffic Manager, TSRTC, Karimnagar.
3. The Regional Manager, TSRTC, Karimnagar.
4. The Executive Director, TSRTC, Karimnagar. … Respondents.
This case coming before me for final hearing in the presence of Sri K.Sudhakar Reddy, Advocate for the Petitioner and of Sri B.Veerasundar, Junior Law Officer for the Respondents; and having been heard and having stood over for consideration till this day, the Tribunal delivered the following:-
-: A W A R D :-
1.This is a reference received from Joint Commissioner of Labour, Warangal to decide the justifiability of punishment imposed by the Depot Manager, TSRTC,
Jagital who herein after will be referred as respondent No.1 against the petitioner by name K.Praveen Kumar, Ex.Conductor by way of removing him from service vide proceedings dt.13-07-2005. The following is the brief case as per the reference:
2.The petitioner K.Praveen Kumar was working as conductor at Jagtial depot. The 1st respondent removed him from service on the charge of unauthorized absenteeism to the duties. The appeal, review petition and review appeal were rejected by the respective authorities. Therefore, he has approached the RTC Telangana Mazdoor Union and moved an application under section 2(k) of Industrial Disputes Act before the conciliation officer-cum-Dy.
Commissioner of Labour, Karimnagar with a request to settle the dispute by way of conciliation, on the said application the conciliation officer made attempts to settle the dispute by way of conciliation. He has addressed letter to the 1st -2- ID.15/2017.
respondent inviting him for conciliation proceedings. However, the 1st respondent submitted remarks stating that the punishment imposed on the petitioner/workman was just and proper and he was not prepared to attend conciliation. The efforts made by the conciliation officer to bring an amicable settlement between the parties were failed. There was no meeting point between the parties. Therefore, the conciliation officer filed a failure report under section 12 (4) of Industrial Disputes Act with regard to justifiability of the punishment imposed against the petitioner. The Joint Commissioner of Labour, Warangal having perused the entire record came to the conclusion that an industrial dispute is existing between the petitioner and respondent No.1 to 4 namely
Depot Manager, TSRTC, Jagtial, Dy. Chief Traffic Manager, TSRTC, Karimnagar,
Regional Manager, TSRTC, Karimnagar and Executive Director, TSRTC,
Karimnagar regarding the punishment imposed on the petitioner herein.
Therefore, he made the present reference for adjudication. The said reference was registered as ID.No.15/2017, notices were issued to both parties and petitioner has appeared before this Tribunal, engaged an Advocate whereas the respondents are represented by their Junior Law Officer. The petitioner has filed statement of demands with the following averments.
3.The petitioner was appointed as conductor during 1989, he was regularized during 1992, ever since from the date of his appointment he was discharging his duties to the utmost satisfaction of superiors, he served the corporation for more than 16 years without any adverse remark. The petitioner is suffering from severe ill-health very frequently, due to which he was compelled to undergo prolonged treatment during the year 2014. He requested to sanction sick leave and submitted medical certificate from time to time and reported to duty along with fitness certificate. He performed the duty allowed to him since 05-01-2005 since compelled to undergo treatment from 05-01-2005 but R-1 served charge sheet dt.24-02-2005 with the following charges.
-3- ID.15/2017.
CHARGES:-
1. For having unauthorizedly absented to duties from 05-01-2005 to till date, which constitutes misconduct.
2. For having failed to attend duties for (107) days i.e., absent 38 days, sick 62 days and leave 7 days, for the last (12) months, which constitutes misconduct.
4.The petitioner further stated that he has submitted medical certificate issued by competent hospital from 05-01-2005 and sought for sanction of sick leave, he reported for duty with fitness certificate. The 1st respondent obtained his explanation to the charge sheet on the same date i.e., on 07-03-2005 but a nominal enquiry was conducted on 07-03-2005 and a report was submitted on the same day. The 1st respondent unjustly removed the petitioner from service by proceedings No.E1/1(1)/2005-JGTL, dt.13-07-2005. The appeal, review petition and review appeal preferred by the petitioner were rejected by R-2 to R-4 on 27- 01-2016, 21-03-2016 and 09-08-2016 respectively. Therefore, the petitioner moved conciliation proceedings.
5.The petitioner further stated that the domestic enquiry conducted in the depot itself within a very few minutes as a mere formality. The findings of the enquiry officer are perverse and biased. The copies of absenteeism report and other connected documents basing upon which charge leveled were not supplied along with charges or on the subsequent stages, as required under Reg. No.12
(iii) of RTC Employees (CC & A) Regulations. The petitioner was denied fair opportunity of hearing and cross examining all the management witnesses to prove his innocence. The enquiry officer did not appreciate his evidence on record in a proper way the true facts were not found by the enquiry officer and by the respondents. The petitioner further pleaded that his health was badly deteriorated and he suffered from serious ill-health. There is reasonable and sufficient cause for his absence for his duties, it does not constitute serious -4- ID.15/2017.
misconduct. The 1st respondent did not accept the medical certificate and fitness certificate submitted by the petitioner and allowed him to the duty on 07-03-2005 later due to family planning operation the petitioner was granted special casual leave from 12-03-2005 to 17-03-2005 and on 18-03-2005 he performed special off duty. The petitioner states that since he submitted sick leave due to ill-health it cannot be considered as misconduct. The subsequent sick leave, continuation sick certificate and reports are beyond the charge sheet. There is no charge sheet issued and no enquiry conducted in respect of reports dt.30-03-2005 and 13-07-2005 but the 1st respondent unjustly removed the petitioner from service.
The 1st respondent ought to have referred the petitioner to RTC hospital at
Tarnaka for imparting treatment so as to clear the alleged suspicious ill-health and medical certificates of the petitioner. The 1st respondent did not discharge the legitimate function of appointment of the enquiry officer under intimation of the petitioner. The appointment of the enquiry officer and conducting the enquiry is not an empty formality. The petitioner is entitled to reasonable opportunity so that he can defend himself and prepare his own case. Even after charge sheet the petitioner was granted sick leave for 62 days, leave for 7 days and treated 38 days as absent out of 107 days during 12 months period. Since he was in serious ill-health and taking treatment he could not attend the duties. The extremely harsh punishment of removal is highly excessive shockingly disproportionate and amount to economic death and it amounts to death. Ever since from the date of removal the petitioner could not get any other employment in spite of his best efforts. He has crossed the upper age limit for any fresh job.
He served the corporation more than 16 years, he hails from a poor family and he has no other source of livelihood to feed his family members. The reference was already registered as I.D.No.15/2017. Therefore, the petition is within limitation, with this the petitioner prayed for setting aside the removal order dt.13- 07-2005 and to direct the respondent to reinstate the petitioner into service with continuity of service, consequential attendant benefits and full back wages.
-5- ID.15/2017.
6.The respondents have opposed the claim of the petitioner. They have filed common counter with the following averments:
The petitioner was appointed as daily wage conductor on 07-04-1989 and was regularized w.e.f., 23-08-1993. He was working under the control of R-1 at the material time. He has no clean record and faced several punishments including deferment of annual increments. The Sr. Traffic Inspector, Jagital submitted a report on 23-02-2005 to the 1st respondent and informed that the petitioner was absent for duties from 01-11-2004 and submitted general sick from 01-11-2004 to 04-01-2005 to cover up the absenteeism and again absented for duties from 05-01-2005 to 13-01-2005 without prior sanction of leave or any grant of permission. The absence of petitioner caused dislocation of services. On the base of the said report two charges have been framed against the petitioner as follows:
CHARGES:-
1. For having unauthorizedly absented to duties from 05-01-2005 to till date, which constitutes misconduct.
2. For having failed to attend duties for (107) days i.e., absent 38 days, sick 62 days and leave 7 days, for the last (12) months, which constitutes misconduct.
7.The respondents have claimed that the petitioner was unauthorizedly absent from duties from 05-01-2005 till 24-02-2005 and failed to attend duties for 107 days in a period of 12 months from February, 2004 to January, 2005. A charge sheet was sent to the residential address of the petitioner but it was returned with an endorsement that petitioner was absent for 7 days. In the mean time the petitioner approached the 1st respondent with a sick certificate and fitness certificate on 07-03-2005. He has acknowledged the receipt of charge sheet and submitted explanation on the same day. Since the petitioner was -6- ID.15/2017.
regularly absent the case was entrusted to CI (T) for a detailed report.
Accordingly the enquiry officer i.e., CI (T) conducted enquiry on 07-03-2005, recorded the statement of petitioner on the same day and submitted his report on 07-03-2005 itself by finding petitioner guilty of the charges. The 1st respondent perused the enquiry report and other relevant record and agreed with the findings of the enquiry officer. As per the service regulations of APSRTC the workman has to inform the depot within 48 hours about his whereabouts and without obtained leave or permission he shall not absent for the duties but in the case on hand the petitioner was specifically absent to the duties. In view of the assurance given by the petitioner that he will attend the duties without fail, the case was kept a side on 07-03-2005 but the Senior Traffic Inspector, Jagital submitted another report on 28-03-2005 stating that the petitioner again absented for the duties. After availing special casual leave from 05-03-2005 to 07-03-2005 he has performed special-off duty and availed leave on 20-03-2005 but absented to the duties from 21-03-2005 to 29-03-2005. Therefore, a show cause notice of removal from the service was served on the petitioner on 30-03- 2005. The petitioner submitted an explanation on 12-05-2005. He has again submitted sick leave from 17-03-2005 to 31-03-2005. Therefore, the 1st respondent came to the conclusion that the charges framed against the petitioner are proved and the petitioner is not only irregular in the duties but also unprofitable workman thereby issued proceedings by removing the petitioner from service. The appeal and review preferred by the petitioner were rejected by the concerned authorities. Therefore, the respondents sought for dismissal of the reference.
8.I have heard both parties.
Now the points for consideration are:-
1. Whether the I.D. is filed U/Sec.2-A (2) (or) it is a “Reference”
U/Sec. 10 of I.D. Act; and whether it is barred by limitation?
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2. Whether the 1 st respondent is justified in removing the petitioner
from service; and if not, to what relief the petitioner is entitled?
POINT No.1:-
9.It is argued by the learned Law Officer for the respondent that the petitioner was removed from service on 13-07-2005, as he absented to his duties un-authorizedly. Subsequently, he preferred Appeal, Review Petition and Review
Appeals, which were rejected by orders dt.27-1-2016, 21-03-2016 and 09-08- 2016, respectively. This I.D. petition was filed beyond the (3) years limitation period, it is not maintainable and is liable to be dismissed on the ground of delay as per the I.D. (Amendment) Act, 2010 which came into force with effect from 05- 09-2010.
10.On the other hand, it is argued by the learned counsel for the petitioner that the respondent removed the petitioner from service by order dt.13-07-2005, illegally. Aggrieved by the removal order, the petitioner preferred Appeal, Review petition and Mercy appeals; but they were rejected by orders dt.27-01-2016, 21- 03-2016 and 09-08-2016, mechanically. Immediately, the petitioner moved conciliation proceedings before the Dy. Commissioner of Labour, Karimnagar; the respondent submitted his detailed remarks and the Joint Commissioner of
Labour, Warangal issued “Reference” on behalf of appropriate State Government
U/Sec.10 of I.D. Act, for passing award within (6) months by this Hon’ble Court.
He contends that this I.D petition is not filed by the petitioner U/Sec.2-A (2) of
I.D., Act; and that it is a “Reference” U/Sec.10 of I.D. Act issued by the appropriate State Government. He contended that the I.D. Act is Social Welfare legislation, mere delay does not bar the relief and the Labour Court is conferred wide discretionary powers U/Sec.11-A of the Act to grant appropriate relief of reinstatement with or without back wages duly considering the delay. The learned counsel contends that no limitation period is prescribed and the Limitation Act does not apply to the proceedings U/Sec.10 of Industrial Disputes Act, which is now well settled by series of judgments of the Hon’ble High Court and Supreme
Court. Therefore, learned counsel argued that the I.D., is maintainable, liable to -8- ID.15/2017.
be adjudicated by this Hon’ble Court on merits; and it cannot be thrown on the ground of limitation and there is no delay in raising the dispute. In support of the above contentions, the learned counsel relied on the decisions reported in 2012 (1) 220 D.B., and AIR 2016 Supreme Court 2984.
11.In view of the above rival contentions, I have gone through the record and also the written arguments filed by both parties. The petitioner was removed from service by the 1st respondent on13-07-2005, under Ex M-20. His Appeals were rejected by respondents 2 to 4 on 27-1-2016, 21-3-2016 & 9-8-2016 under Ex M- 22, Ex M-23 & Ex M-25. Thereupon, petitioner moved conciliation proceedings
before Conciliation Officer, Karimnagar; the respondents filed remarks and the
dispute was referred by the State Government U/Sec.10 of I.D. Act through the
Joint Commissioner of Labour, Warangal for adjudication by this Court. The “Reference” was registered as I.D.No.15/2017 on the file of this court. Therefore, this I.D. is not filed Under Sec.2-A (2) of I.D. Act; but it is a “Reference” Under
Sec.10 of I.D. Act. The respondents did not raise any objections of delay or limitation before conciliation officer; this “Reference” was not assailed by the respondents before the appropriate forum and it remained unchallenged.
12.In a decision reported in 2012 (1) 220 D.B., the Hon’ble A.P. High Court held as under:- “Industrial Disputes Act, a social welfare legislation, required to be interpreted keeping in view the goals set out in Preamble and Directive
Principles of State Policy in Part-IV of Constitution, that mere delay does not bar relief, that Industrial Court is conferred with very wide discretion under Sec.11-A, not precluded from considering the delay on the part of the workman in granting relief. It can always consider the delay and grant relief of in ways more than one i.e., reinstatement with back wages, payment of wages without attendant benefits, reinstatement with continuity of service and restricting the relief for a given period effective from a stipulated date. Delay considered by
Labour Court in granting relief and reinstatement ordered with continuity of service but denying entire back wages to workman, no -9- ID.15/2017.
interference called-for.” The relief granted by the Industrial Tribunal to the workman therein was upheld by Hon’ble High Court.
13.In another decision reported in AIR 2016 Supreme Court 2984, the
Hon’ble Supreme Courtheld as under:-
“Industrial Disputes Act, 1947 – Sec.10 – Reference – Limitation – No period of limitation is prescribed under Sec.10 of Industrial Disputes
Act, 1947. Limitation Act does not apply for “Reference”. At this stage it may be pointed out that admittedly the law of limitation does not apply to Industrial Disputes - Limitation Act does not apply to the proceedings under the Industrial Disputes Act - This is now well settled by series of judgments of this Court”
14.In view of the above facts and circumstances, it is crystal clear that this
I.D. is not filed U/Sec.2-A (2) of I.D. Act. The appeals of petitioner were rejected by respondents 2 to 4 on 27-01-2016, 21-03-2016 and 09-08-2016 marked as Ex
M-22, Ex M-23 and Ex M-25; and therefore, there is continuation of cause of action. Admittedly, this I.D. is a “Reference” U/Sec.10 of I.D. Act issued by State
Government through the Joint Commissioner of Labour, Warangal which is maintainable and hence it cannot be thrown-out on the ground of bar of limitation.
This point is answered accordingly against the respondents.
POINT No.2:-
15.The report of the STI/JGTL dt.23-02-2005 is marked as Ex M-1 and the charge sheet dt.24-02-2005 under Ex M-2 was given to petitioner on 07-03-2005 under Ex M-3 Ack., There are two (2) charges. The 1st charge is that petitioner absented to duties from 05-01-2005 to till date (24-02-2005) unauthorizedly. 2nd charge is that during last (12) months, he failed to attend duties for (107) days i.e., Absent 38 - days, Sick - 62 days and Leave - 07 days. As per the medical certificate and report of STI under Ex M-5 and M-6, it shows the petitioner submitted Govt. Sick and he reported for duty on 07-3-2005 with medical -10- ID.15/2017.
certificate. On that day, charge sheet was given to him and he gave his explanation there-to on 07-03-2005 itself under Ex M-7. In this explanation, the petitioner denied the charges and clearly stated that due to ill-health, he took (62) days sick leave and though he submitted medical certificates from time to time, (38) days were treated as absent. He further stated that he took (7) days leave on different dates due to various reasons.
16.On the same day on 07-03-2005, domestic enquiry was conducted in the depot and enquiry statement of petitioner was recorded under Ex M-8. It is on the same lines of his explanation to charge sheet under Ex M-7. Enquiry Officer submitted his findings report under Ex M-9 and 1st respondent took the petitioner to duty under Ex M-10, on 07-03-2005 itself. The Medical Certificate for (7) days under Ex M-11; and the report of STI under Ex M-12 shows that the petitioner performed duties from 07-03-2005 to 11-03-2005, Special leave was given to him from 12-03-2005 to 17-03-2005 for Family Planning operation and he performed special-off duty on 18-03-2005. It further shows that the petitioner submitted
Govt. Sick Certificate within (48) hours.
17.Under Ex M-13 Show Cause Notice, the 1st respondent took into consideration the above subsequent events, STI reports and absence of petitioner. In his explanation under Ex M-14, petitioner reiterated that he did not absent to his duties unauthorizedly; due to ailment he took treatment under intimation to the depot officials; and that at APSRTC, Taranaka Hospital various tests were conducted and he was given treatment. The medical & fit certificates under Ex. M-16 to M-18 substantiate explanation of the petitioner. Under Ex M- 19, the T.I-II submitted another report dt.13-07-2005 and the 1st respondent removed the petitioner from service on the same day by Proc. dt.13-07-2005 under Ex M-20. Later appeals of petitioner were rejected on 27-1-2016, 21-3- 2016 and 09-08-2016 under Ex M-22, Ex M-23 and Ex M-25.
18.It is argued by the learned Junior Law Officer for the respondents that the petitioner absented to his duties from 05-01-2005 to till date (24-02-2005) -11- ID.15/2017.
unauthorizedly. During the past (12) months, he failed to attend to duties for (107) days i.e., absent 38 - days, Sick - 62 days & leave - 07 days, for which charge sheet was issued framing (2) charges. As the explanation of the petitioner was not satisfactory, regular enquiry was conducted on 07-03-2005 and he was taken to duty on the same day. The petitioner performed duty for few days and again repeated absenting to his duties for different spells. As such after issuing show cause notice, the 1st respondent removed the petitioner from service by
Proc. dt.13-07-2005 which is justified. His appeal, review petition and mercy appeals were rejected on 27-01-2016, 21-03-2016 and on 09-08-2016, respectively. The petitioner is bereft of clean record and he is not a profitable employee to the corporation. Therefore, he prays to dismiss the petition without granting any relief to the petitioner.
19.On the other hand, it is argued by the learned counsel for the petitioner that as the petitioner suffered from serious ill health, he took treatment, submitted medical certificates and reported for duty with fit certificate, on 07-03-2005. But, the 1st respondent served charge sheet to him and obtained his explanation there-to on the same day. Further, a farce of enquiry was got conducted on 07- 03-2005 in the depot and Enquiry Officer submitted his findings report immediately. During enquiry on 07-03-2005, even no single witness was examined to substantiate the charges before the E.O., The enquiry statement of petitioner and the medical certificates submitted him to the 1st respondent remained unchallenged and undisputed. He also contended that 1st respondent has not discharged its legitimate function of appointment of Enquiry Officer.
Appointment of enquiry officer & conducting of the enquiry is not an empty formality. But, the 1st respondent and Enquiry Officer reduced the procedure to farcical levels, which is highly arbitrary, illegal and against the principles of natural justice.
20.The learned counsel further argued that the subsequent absence, continuation sick certificates and reports of STI and T.I-II are beyond the charges.
-12- ID.15/2017.
No charge sheet was issued to petitioner and no enquiry was conducted for the subsequent reports and allegations. But, 1st respondent removed the petitioner from service considering those subsequent reports beyond charges, which is quite illegal & not valid under law. That the petitioner has not committed any misconduct and the charges are liable to be treated as not proved against him.
That though the petitioner preferred appeal to the 2nd respondent within the stipulated period, as it was not traceable he gave another appeal 2nd time in 2016. That for the alleged delay of appeal, there is no fault of petitioner at all.
Therefore, he prays to allow the I.D granting full back wages and other reliefs as prayed-for.
21.In support of his above contentions, the learned counsel for petitioner relied on the following decisions:-
1)Judgment of Hon’ble High Court (D.B) in W.A.No.1101/2008 and W.P.No.7671 of 2000 granting full back wages in absenteeism case.
2)Judgment of Supreme Court reported in 2008 LILR 552 (D.B), wherein 50% back wages awarded in absenteeism case.
3)Judgment of Hon’ble High Court reported in 2008(6) ALD 492, awarding 50% back wages in absenteeism case.
4)Judgment of Hon’ble Supreme Court, reported in 2009-III-LLJ-373 (SC) holding the removal from service for absenteeism is not justified.
5)Judgment of Hon’ble High Court in W.P.No.5589 of 2001, dt.15-06-2018 upholding the award of full back wages by this Labour Court in absenteeism case.
6)Judgment of Hon’ble High Court in W.P.No.22346 of 2007, dt.13-07-2018 granting 50% back wages by setting aside the dismissed award in absenteeism case.
22.In the above cited judgments, their Lordships categorically held that the workman who was not found guilty of charges and who was not gainfully employed elsewhere during the period of removal, is entitled not only to reinstatement with continuity of service but also back wages along with other consequential benefits. As the charges were very trivial and not proved, their
Lordships modified awards of Labour Court by granting back wages appropriately.
-13- ID.15/2017.
23.Per contra, the learned Junior Law Officer for the respondents vehemently contended that the petitioner is bereft of clean record, his annual increments were deferred without cumulative effect for 3 or 6 months, censured several times besides removed from service (1) time prior to this removal. Therefore, he argued that the petitioner does not deserve any mercy; and prayed to dismiss the petition without granting any relief.
24.But, the learned counsel argued that admittedly past record of petitioner is not subject matter of the charges and it cannot be considered by the Court. In support of his version, he relied on the Division Bench Judgment of the Hon’ble
High Court reported in 1996 (3) ALT 648, between Nara Goud Vs Industrial
Tribunal -Cum-Labour Court & APSRTC. In the above cited decision, the Hon’ble
High Court categorically held that the Labour Court is not competent to consider the past record of the employee. Hence, I am of the considered opinion that the above past record of the petitioner cannot be considered by this Court.
25.This is not a case of compulsory retirement and no application was filed
U/Sec. 33(2) (b) by the respondents seeking approval of this Tribunal. The petitioner did not produce any fake SSC certificate. He submitted sick and fit certificates to the 1st respondent and there are no allegations of tampering medical certificates and lack of interest in the charge sheet. The enquiry officer recorded the statement of petitioner during enquiry; and the petitioner did not choose to be absent from proceedings of this Court. Hence, the facts & circumstances of the following decisions relied-upon by the learned Junior Law
Officer are quite different and not relevant to facts of the present case:-
1) Delhi Transport Corporation Vs. Jai Gopal through L.Rs reported in 2016-II-LLJ-81 of Delhi High Court;
2) B. Rajender Vs. Presiding Officer Labour Court, Warangal in W.A No.980/2000, dt.7-9-2000; and
3) Chandrakantha Vs. Divisional Controller & Disciplinary Authority, reported in 2018-II-LLJ-214 (Kant)
26.Hence, the above cited decisions are of no help to the respondents’ corporation.
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27.The learned counsel for the petitioner drew my attention to Regulation No.
11 of RTC (Leave) Regulations, 1963 which entitles the petitioner to produce
Govt. Sick/Private sick certificate issued by his own medical attendant; and the
Depot Manager may accept them or refer to the competent Medical Officer. If such Medical Officer does not accept the medical certificate, he will return to the
Depot Manager (head of the office) with a specific endorsement. But, in this case, the 1st respondent did not refer the petitioner or medical certificates to the
RTC Medical Officer to ascertain his ill-health. As such, the 1st respondent has not acted in accordance with the RTC (Leave) Regulations.
28.In view of the above rival contentions, I have once again considered the entire record placed before this Court.
29.The 1st respondent served charge sheet to the petitioner and obtained his explanation there-to on 07-03-2005. Domestic enquiry was conducted on 07-03- 2005 in the depot and enquiry findings report was submitted on the same day.
No single witnesswas examined before the Enquiry Officer to support the charges. Except the statement of the petitioner which is supported by the medical certificate there is no other evidence to believe that the petitioner was not sick, but failed to attend duties intentionally. There is no single whisper against the petitioner; his enquiry statement was not disputed and not rebutted. Further, the defense put-forth by the petitioner and his ill-health are substantiated by the medical and fit certificates under Ex.M-5, M-11, M-15, M-16, M-17 & M-18. The enquiry officer having recorded the statement of the petitioner/workman concluded that the charges were proved. At the stage of Award, I have again posted this case to hear the learned Junior Law Officer on this peculiar point. The learned Law Officer advanced his contentions before this court on 9-4-2019 and vehemently supported the conclusions arrived by the Enquiry Officer. But, I am unable to agree with the contentions of the learned law officer. With any stretch of imagination, such a conclusion can be arrived by the Enquiry Officer and hence, cannot be upheld under law. The 1st respondent failed to call-for the -15- ID.15/2017.
remarks/objections of the petitioner on the enquiry findings report. The entire procedure followed indicates that both the Enquiry Officer and the 1st respondent have reduced the requirement under law to farcical levels. Therefore, I have no hesitation to hold that the findings of the Enquiry Officer are highly arbitrary, perverse and not tenable under law. The 1st respondent miserably failed to prove any misconduct on the part of petitioner for the charges.
30.The subsequent reports of STI and T.I-II regarding the absence & medical certificates submitted by petitioner are beyond the charges. There is no charge sheet was issued and no enquiry was conducted for the said subsequent reports.
The medical, sick and fit certificates submitted by petitioner were received by the 1st respondent and their genuineness was not disputed. The 1st respondent removed the petitioner from service considering the subsequent reports beyond the scope of charges, which is highly arbitrary, illegal & not permissible under law. Hence, the proceedings of the 1st respondent are vitiated on account of serious procedural irregularities. The ill-health of petitioner is substantiated not only by the private & Govt. medical and fit certificates, but also by the RTC State
Level Hospital at Taranaka, Hyderabad. Further, (62) days sick leave granted by the 1st respondent itself substantiates the ill-health of petitioner. Therefore, in view of the above cogent evidence on record, I hold that the petitioner cannot be found guilty of any misconduct and hence, the charges are held as not proved against him.
31.In view of the above peculiar facts and circumstances of the case and above cited decisions of the Hon’ble Apex Court and Hon’ble High Court, I am of the considered view that the punishment of removal from service is not tenable and liable to be set aside. Therefore, I hold the 1st respondent is not justified in removing the petitioner from service. This point is answered accordingly.
32.The petitioner was appointed on 07-04-1989 and put in (16) years long service till his removal on 13-07-2005. The petitioner is out of employment from 13-07-2005; he was not gainfully employed elsewhere was not controverted by -16- ID.15/2017.
the respondents. This is a fit case to exercise the discretion of this Tribunal
Under Sec.11-A of the I.D. Act to mould the relief appropriately. As the charges are not proved, it follows reinstatement with full back wages in normal course.
But for the delay of (10) years in preferring appeal to 2nd respondent, I am inclined to reduce grant of back wages to 50% by moulding the relief appropriately. The petitioner is also denied any accumulation of Earned Leave during the interim period from date of his removal to till today.
33.Therefore, the petitioner shall be reinstated into service with continuity of service, all attendant benefits and notional increments. He is not entitled to any accumulation of Earned Leave during the interim period from date of his removal to till today. He is entitled to 50% back wages only and denial remaining 50% back wages would be sufficient punishment for his delay in preferring appeal, to meet the ends of justice. The reference is answered accordingly.
34.IN THE RESULT, the reference is party allowed andthe removal order passed by the 1st respondent under Ex.M-20 is set-aside. The respondents’ corporation is hereby directed to reinstate the petitioner into service with continuity of service, all consequential attendant benefits and notional increments. But, he is not entitled to any accumulation of Earned Leave during the interim period from date of his removal to till today. Though the charges are not proved, the petitioner is entitled to 50% back wages only; and denial remaining 50% back wages would be a sufficient punishment for his delay in preferring appeal. The award shall come into force on expiry of (30) days from the date of its publication.
Dictated to Senior Stenographer, transcribed by him, corrected and
pronounced by me in the open court, on this the 26th day of April, 2019.
Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court, Godavarikhani.
-17- ID.15/2017.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR WORKMAN:- FOR MANAGEMENT;- -Nil--Nil-
E X H I B I T S
FOR WORKMAN:-
Ex.W-1Dt.13-07-2005Removal order Ex.W-2Dt.27-01-2006Proceedings of Appeal rejection order Ex.W-3Dt.21-03-2016Proceedings of reviewing authority Ex.W-4Dt.09-08-2016Rejection of mercy petition
FOR MANAGEMENT:- Ex.M-1Dt.23-02-2005Report of the STI, Jagtial Ex.M-2Dt.24-02-2005Charge sheet Ex.M-3Dt.--Undelivered registered postal cover with acknowledgement Ex.M-4Dt.07-03-2005Acknowledgement of petitioner to charge sheet Ex.M-5Dt.--Medical certificate Ex.M-6Dt.07-03-2005Report of the STI, Jagtial Ex.M-7Dt.07-03-2005Reply to charge sheet Ex.M-8Dt.07-03-2005Statement of K.,P.Kumar, Conductor Ex.M-9Dt.07-03-2005Enquiry report Ex.M-10Dt.07-03-2005Letter of the DM, Jagtial to Asst.Manager (T), Jagtial Ex.M-11Dt.--Medical certificate Ex.M-12Dt.29-03-2005Report of the STI, Jagtial Ex.M-13Dt.30-03-2005Show cause notice of removal Ex.M-14Dt.12-05-2005Reply to show cause notice Ex.M-15Dt.22-06-2005Report of the STI, Jagtial Ex.M-16Dt.01-05-2005Fit certificate Ex.M-17Dt.--Medical certificate Ex.M-18Dt.--Medical certificate Ex.M-19Dt.13-07-2005Report of TI-III, Jagtial Ex.M-20Dt.13-07-2005Proceedings of the depot manager, Jagtial Ex.M-21Dt.--Acknowledgment Ex.M-22Dt.27-01-2016Proceedings of the Appellate authority Ex.M-23Dt.21-03-2016Proceedings of the review authority Ex.M-24Dt.21-08-2016Application of the petitioner Ex.M-25Dt.09-08-2016Proceedings of the ED, RTC, Karimnagar Ex.M-26Dt.--Service record (Xerox) of petitioner.
Chairman-cum-Presiding Officer, Industrial Tribunal-cum-Labour Court, Godavarikhani.