Telangana High Court
Ahmed Hussain vs The Chairman Industrial Tribunal Cum ... on 23 August, 2022
Author: P. Madhavi Devi
Bench: P. Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
W.P.Nos. 16665 of 2014 and 1889 of 2016
COMMON ORDER:-
Both the Writ petitions are filed by the Corporation and the individual employee respectively.
2. Brief facts leading to the filing of both of these writ petitions are that the petitioner in W.P.No.16665 of 2014 was appointed as Driver with the respondent-Corporation in the year 1987. On 02.03.1993, when the petitioner was on duty, robbers stopped the bus and when they attacked lady passengers, the petitioner interfered and asked the robbers not to attack the female passengers. Angered by the behavior of the petitioner, one of the robbers stabbed him on his spinal cord because of which he had to go on sick leave and subsequently also, the petitioner stated that he suffered for about three years because of injury. It is submitted that the petitioner was on sick leave during July 1995 and for 18 days in August, 1995. Subsequently, from 19.08.1995, the petitioner was absent due to sickness and that petitioner submitted sick certificate for the said period but it was not taken into account and petitioner was removed from service by proceedings dated 04.11.1995. The petitioner challenged the removal order in the appeal and also before the Reviewing 1 Authority and on both the occasions he was unsuccessful. Therefore, he filed the ID before the Labour Court and the same also dismissed. Subsequent thereto, the petitioner had filed W.P.No.14199 of 2001 which was disposed off on 04.10.2012 by setting aside the award and directing the Tribunal to consider the matter afresh by giving opportunity to the petitioner to lead further evidence, if any.
3. The Labour Court reconsidered the matter and by award dated 31.07.2013 it set aside the punishment and reinstated the petitioner into the service with 50% back wages from 26.01.1999 till the date of publication of Award and also continuity of service from 26.01.1999 only for the purpose of gratuity and other terminal benefits but not for promotion. Challenging the same, the employee-petitioner and as well as the Corporation are before this Court by filing these two writ petitions. The petitioner-employee is challenging this Award on the ground that neither the charge sheet nor the notice of show cause for removal were served on him. It is submitted that even according to the Enquiry Officer's report, all the documents were sent to his address mentioned in the service book i.e., at Mancherial whereas the petitioner was working at Metpally. It is submitted that the respondent authorities have not made any efforts to serve the notice on the petitioner and even the removal 2 order was not served on the petitioner. It is submitted that in view of the same, the petitioner could not file the appeal immediately and he filed it only on 25.01.1999. It is therefore submitted that the petitioner should have been granted all the benefits including the promotion from the date of removal i.e., 04.11.1995. It is further submitted that the first respondent has granted 50% of back wages only from 26.01.1999 till the date of his reinstatement and the continuity of service for the purpose of gratuity and other terminal benefits only and not promotion and such grant of partial relief to the petitioner is illegal, arbitrary and not justified.
4. In the writ petition filed by the Corporation challenging the Award, this Court granted interim stay of payment of 50% of back wages from 26.01.1999 till the date of reinstatement. The petitioner-employee had filed Stay Vacate Petition in W.P.M.P.No.1519 of 2016.
5. Both the writ petitions were taken up for hearing together. The Corporation is challenging the Award of the Tribunal and is seeking setting aside of the Award and confirmation of the order of removal from service.
6. Learned counsel for employee-petitioner reiterated the averments made in the writ affidavit and also submitted that the charge sheet and 3 notices regarding enquiry were admittedly sent to the petitioner's native place i.e., Mancherial, even though the petitioner was staying at Metpally as he was working in Metpally Bus Depot. He further submitted that the leave was granted to petitioner and there was unauthorized absence for only a period of 20 days. Therefore, imposing the punishment of removal from service is a grave punishment, disproportionate to the alleged misconduct.
7. It is submitted that the Tribunal having observed that the charge sheet, notices regarding enquiry and the removal order was not served on the petitioner, ought not to have awarded only 50% of back wages and continuity of service from 26.01.1999. He therefore, sought relief of 100% of back wages from the date of removal till the date of reinstatement and also for continuity of service with all consequential benefits including promotion.
8. The learned standing counsel for the Corporation, on the other hand submitted that the petitioner has not made any efforts to join the duty after lapse of sick leave and therefore, the disciplinary proceedings were initiated and since the petitioner has not intimated his current address, the notices were sent to the address as mentioned in his Service Register. He submitted that after the notices have been returned 4 unserved, they were displayed on the notice board for the prescribed period of one week and later a detailed enquiry was ordered nominating the Chief Inspector, Metpalli as an Enquiry Officer and that two letters were sent by the Enquiry Officer to the same address through registered post, but both the letters were returned with the endorsement "No such addressee." It is submitted that even though the order of removal is dated 04.11.1995; the petitioner filed an appeal only on 25.01.1999 which shows that the petitioner never reported for duty after lapse of sick leave. Therefore, the learned standing counsel for respondent prayed that the order of the Tribunal is to be set aside and the order of removal be confirmed.
9. Having regard to the rival contentions and material on record, it is noticed that even after the lapse of period of sick leave granted to the petitioner up to 18.08.1995, the petitioner did not report to duty. Subsequently, the respondents have issued the charge sheet and also issued show cause notice, which were returned unserved. The Enquiry Officer conducted exparte enquiry and on the basis of the same, the Disciplinary Authority came to the conclusion that the penalty of removal is just and proper. The Tribunal has considered this fact to come to the conclusion that the respondent-corporation has not taken sufficient or 5 reasonable steps to serve the notices on the petitioner. The Tribunal has also considered that the unauthorized absence as mentioned in the charge sheet also included the period for which leave was granted earlier. Taking the same into consideration, the Tribunal has set aside the order of removal of petitioner from service and this Court does not for any reason interfere with the same.
10. The next question that comes for consideration is whether the petitioner is entitled for back wages from the date of removal from service till the date of reinstatement. The petitioner was removed from service in the year 1995 and he does not appear to have made any efforts or enquiry with regard to status of his employment till 1999. Even if the petitioner did not receive the show cause notice of removal or order of removal from service, the petitioner could have made an effort to join his duty after he got well when he would have been informed about his removal from service, but the petitioner does not seem to have made any such effort. He has therefore, filed an appeal only on 25.01.1999. He is thus not entitled for the benefits from the date of removal till the date of 25.01.1999 and he is not entitled for payment of any back wages for the above period as has been rightly held by the Tribunal. Similarly, the continuity of services from 26.01.1999 for the purpose of terminal 6 benefits and gratuity but not for promotion has been rightly allowed by the Tribunal. Therefore, this Court does not see any reason to interfere with the Award of the Tribunal and the writ petitions of both the employee-petitioner as well as the corporation/petitioner are dismissed.
11. Miscellaneous Petitions, if any, pending in this Writ Petition shall also stand dismissed.
___________________________ JUSTICE P. MADHAVI DEVI Date:23.08.2022 ss 7