Partly allowed

Md.Hussain v. The Industrial Tribunal cum Labour Court, rep.by its

Telangana HC12 Dec 2012WP/23176/2009

Case brief

AI extract

What is this about?

Writ petition challenging a Labour Court award that reinstated a driver without continuity of service or back wages due to short unauthorized absence. The High Court modified the award, granting continuity of service solely to calculate retirement benefits to ensure proportionate punishment, while confirming other aspects of the award.

What did the court decide?

Continuity of service granted only for the purpose of calculating retirement benefits and notional increments; award otherwise confirmed. No costs.

Md.Hussain Vs The Industrial Tribunal cum… — Labour and Industrial Disputes | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE N. RAVI SHANKAR

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WRIT PETITION No.23176 of 2009

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ORDER:

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Heard Sri P.Sridhar Rao, the learned counsel for petitioner and Sri P.Sridhar Reddy, the learned Standing Counsel for second respondent Andhra Pradesh State Road Transport Corporation (Corporation).

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2. In this Writ Petition, the petitioner is challenging the award dated 12.10.2006 passed in I.D.No.16 of 2004 on the file of Industrial Tribunal-cum-Labour Court, Warrangal (Labour Court) in so far as it went against him.

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3. The petitioner previously worked as a Driver in the Corporation in its second respondent’s depot i.e. at Narsampet, Warangal District. On a charge of unauthorized absence from duty from 07.06.1997 to 23.06.1997 a disciplinary enquiry was commenced against him. After holding the enquiry and calling for the explanation of the petitioner the Depot Manager of the second respondent depot by his order dated 25.11.1997 removed the petitioner from service in terms of Regulation 9(2) (e) & (f) read with Regulation 12(13) of the Andhra Pradesh State Road Transport Corporation Employees (Classification, Control and Appeal) Regulations, 1967.

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4. The petitioner after availing the departmental remedies against the above removal order and having failed there raised an industrial dispute I.E. I.D.No.16 of 2004. The Labour Court by its impugned award found the absence of the petitioner from 19.06.1997 to 23.06.1997 is unauthorized and it amounts to

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misconduct i.e. unauthorized absence. Considering that the said period of absence is a short one, it found that a penalty of removal from service was totally disproportionate and in that view of the matter it directed reinstatement of the petitioner as a Driver afresh in the present pay scale but without continuity of service, back wages and consequential benefits. The petitioner is aggrieved by refusal of continuity of service, back wages and other attendant benefits. It is brought to my notice now by the petitioner’s counsel that the date of superannuation of the petitioner also retired from service on 31.03.2012.

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5. Sri Sridhar Rao pointed out that the petitioner has filed Medical Certificate for the above period also and the inquiring authority, the disciplinary authority and even the Labour Court did not consider the same and in fact on evidence they should have found that the charge of unauthorized absence is not proved and consequently the Labour Court ought to have granted reinstatement with continuity service, back wages and other benefits.

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6. On the other hand, the learned counsel appearing for the Corporation pointed out that the record would disclose that there is no ground whatsoever to interfere with the award.

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7. The record has been obtained from the Labour Court. A perusal of the domestic enquiry report dated 23-08-1997 would show that the Enquiry Officer has examined one Sri D.V. Narsu, the-then Senior Traffic Inspector of Narsampet who gave the report about the unauthorized absence of the petitioner and he also recorded the statement of the petitioner. What should be noted is that the Senior Traffic Inspector in his statement has stated that

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on 18.06.1997, the petitioner came to the Depot with Medical Certificate showing that he was sick from 07.06.1997 and that he was fit for duty as on 18.06.1997 and therefore, he advised him to come on 19.06.1997 to join duty but the petitioner reported to the Depot only on 23.06.1997 without furnishing a Medical certificate for the absence for that period. It may be noted that though the charge has been framed for unauthorized absence from 07.06.1997 to 23.06.1997. The record shows that the petitioner produced a medical certificate for the period from 07.06.1997 to 18.06.1997 given by Karunasri Hospital, Warangal, but not beyond that date.

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8. It may also be noted that while recording the statement of the petitioner, the Enquiry Officer has to put to him that the medical certificate produced by him only show that he was under treatment of some ailment from 07.06.1997 to 18.06.1997 and the petitioner gave some answer to it, stating that he was sick thereafter also. Admittedly, the petitioner did not produce any medical certificate showing his sickness from 19.06.1997 to 23.06.1997. Further to a query from the Enquiry Officer, whether the petitioner was fully satisfied with the proceedings of the Enquiry, the petitioner has replied in the affirmative.

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9. The Enquiry Officer however found that as per the relevant regulations, an employee of the Corporation if he reports sick should send the medical certificate within 48 hours of his reporting sick but in the present case, the petitioner came to the depot on 18.06.1997 with medical certificate and consequently he must be deemed to be unauthorisedly absent for the entire period from 07.06.1997 to 23.06.1997 and submitted the report accordingly. It appears that the Labour Court has gone into these aspects and

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ultimately concluded that the petitioner can be said to be unauthorisedly absent only from 19.06.1997 to 23.06.1997. Petitioner admittedly produced the said certificate and hence Labour Court can be said to be right in concluding that the unauthorized absence is only from 19.06.1997 to 23.06.1997, as there is no medical certificate for that period.

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10. Petitioner himself fairly admitted that he was satisfied with enquiry proceedings before the Enquiry Officer. Petitioner cannot also now complain about the validity of the domestic enquiry and though the Labour court did not give any specific finding on this aspect. To sum up, the finding of the Labour Court that the petitioner did not give any medical certificate for the period from 19.06.1997 to 23.06.1997 can be accepted as correct. The Labour Court, it appears, in substance went by the consideration that since the above period of absence is a short one and for reasons recorded by it, directed reinstatement of the petitioner as a fresher.

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11. The argument of Sri Sridhar Rao that since the period of absence is short, the Labour Court ought to have granted continuity of service and all other benefits also and therefore, refusal of the said benefits must be held to be illegal. This contention cannot be accepted in so far as refusal of back wages and other benefits are concerned having regard to the careless attitude of the petitioner.

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12. As already mentioned, the petitioner retired from service on 31.03.2012. The period of unauthorized absence, as found from the record, is only from 19.06.1997 to 23.06.1997 which can be said to be a short one. The petitioner has put in considerable

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length of service. Thus if the relief of continuity of service is refused, that will affect his pension and refusal of that relief can be said to be a disproportionate punishment. In the circumstances, I am of the opinion that ends of justice would be met if the relief of continuity of service is granted only for the purpose of giving him the benefit of pension.

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13. Accordingly, the petitioner is granted the relief of continuity of service only for the purpose of granting the retirement benefits by calculating notional increments, while confirming the award in all other respects. Thus the Labour Court award is modified to the above extent and this writ petition is partly allowed in the above terms. No costs.

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_______________________ N. RAVI SHANKAR, J 12^th December 2012 CVRK/TJMR

Md.Hussain v. The Industrial Tribunal cum Labour Court, rep.by its

Case brief

What is this about?

What did the court decide?

Md.Hussain v. The Industrial Tribunal cum Labour Court, rep.by its

Case brief

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