IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY THIS THE TWENTY FIFTH DAY OF APRIL TWO THOUSAND AND FOURTEEN PRESENT
THE HON'BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION Nos.24306 & 19953 of 2005
W.P.No.24306/2005
Between: Choppari Shanker . PETITIONER And The Industrial Tirbunal-I, Rep.by its Chairman, Chandravihar Building, 1st floor, M.J.Road, Hyderabad and another . RESPONDENTS
W.P.No.19953/2005
Between:
The General Manager, Area-I, Singareni Collieries Co.Ltd., Godavarikhani, Karimnagar District . PETITIONER And The Workmen (C.Shanker) of Singareni Collieries Company Limited, Rep.by its General Secretary, And another . RESPONDENTS The Court made the following:
THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION Nos.24306 & 19953 of 2005
COMMON ORDER:
W.P.No.24306/2005 is filed by the workman seeking issuance of a writ of certiorari to quash the award passed by the Industrial Tribunal, Hyderabad in I.D.No.4/1985, dated 31.03.2005 in so far as denying continuity of service and back wages to the petitioner and directing the 2nd respondent to issue fresh charge sheet and conduct enquiry against the petitioner.
W.P.No.19953/2005 is filed by the Management seeking issuance of a writ of certiorari to quash the award passed by the Industrial Tribunal, Hyderabad in I.D.No.4/1985, dated 31.03.2005 in so far as reinstating the workman into service.
Since both the writ petitions are directed against the one and the same award, they are disposed of by a common order.
The brief facts relevant for disposing of these two writ petitions may be stated as follows:
The petitioner joined the Singareni Collieries Company Limited (hereinafter referred to as “the company”) as Badli Filler on 06.12.1976 and thereafter he was promoted as Hauler Khalasi on 15.10.1980. After initiating domestic enquiry, the workman was removed from service on the ground that he absconded from duty from 01.09.1982 onwards till the date of charge sheet without obtaining any prior permission or applying for leave. Against the removal order, the workman approached the Industrial Tribunal by filing I.D.No.4/1987 and the Industrial Tribunal, Hyderabad vide orders dated 31.03.2005 passed the award directing reinstatement of the workman into service as fresh candidate in the same category without back wages and without continuity of any seniority. Against the said award both workman and Management filed these two writ petitions Heard the learned counsel appearing for the workman as well as the Management.
The version of the workman is that he fell sick and was suffering from ulcer and chest pain he had gone to his native place and undergone treatment for ulcer and chest pain; Dr.Deshpande, Civil Assistant Surgeon examined him in the Company hospital. It is further stated that while the workman was undergoing treatment, the police arrested him on false ground and booked a false criminal case against him, in which he was remanded to judicial custody and therefore, he was not aware of any domestic enquiry conducted against him. The further case of the workman is that he did not receive any notice proposing to conduct any enquiry against him, the enquiry was conducted in his absence and an ex parte report was submitted by the Enquiry Officer and therefore, the enquiry is vitiated from non- observance of principles of natural justice. Thus, according to the workman, basing on the said ex parte enquiry report, removing him from service is illegal.
On the other hand, it is the contention of the Management that the workman was unauthorizedly absent from duties from 01.09.1982 till the date of charge sheet and notice was issued calling for his explanation, but the notice was returned unserved with an endorsement that the workman was not residing at the place to which the notice was sent. It is the further contention of the Management that subsequently, the notice was published in “Andhra Patrika” Telugu daily on 07.01.1983 communicating the date of enquiry, but the workman did not attend the enquiry.
In reply, it is the contention of the workman that “Andhra Pratrika” daily newspaper was not in circulation at the place where he was residing and therefore, there is no valid service of notice with regard to conduct of domestic enquiry against him.
In any event, the enquiry conducted was an ex parte enquiry. In the course of which, the Office Superintendent of the Company was examined as MW 1 who stated that the workman was absent from duty from 01.09.1982 till the date of charge sheet. He produced muster particulars before the Enquiry Officer and the entries therein were marked as Ex.M1. He also stated that the workman was always irregular in attending the duties. The Office Superintendent who was examined as MW 1 was not subjected to cross examination as the workman was not aware of the enquiry held against him. Since the charge relates to unauthorized absence of the workman from 01.09.1982 till the date of charge sheet, his earlier absence for duty against which no action was proposed need not be taken into consideration. MW 2 is the Clerk, MW 3 is the Peon and MW 4 is the Personal Officer of the Company. All of them spoke about the unauthorized absence of the workman.
According to the workman, he was arrested in connection with a criminal case and during the period of domestic enquiry, he was in jail. As per Ex.M8 produced before the Tribunal, the workman was in jail from 28.02.1983 to 10.05.1983. Obviously, as rightly held by the learned Tribunal, the petitioner could not attend the enquiry as he was in jail. Therefore, the notice alleged to have been published in ”Andhra Patrika” daily news paper on 07.01.1983 is of no consequence and it cannot be said that there is valid service of notice on the workman. The workman addressed a letter under Ex.W2 dated 20.05.1983 to the Manager of the Company stating that he fell sick and took treatment for ulcer and thereafter he was arrested by the police on 24.02.1983.
The learned Tribunal, having considered all the facts and circumstances, recorded a specific finding that the workman was unable to attend the duties due to ill-health and also on account of arrest by the police and he was in judicial custody during the enquiry. The learned Tribunal was of the view that the charge is vague as the charge was framed merely stating that the workman was absent from 01.09.1982 onwards and it is silent till what date the workman remained absent. The learned Tribunal was also of the opinion that the charge levelled against the workman is without any details and the workman can raise the said issue during the course of enquiry. But in the instant case, as the enquiry was held ex parte there was no opportunity to the workman to raise his defence against the charge levelled against him. Accordingly, the learned Tribunal held that there was no proper charge framed against the workman and there was no proper notice served on the workman informing the initiation of domestic enquiry against him and therefore, the workman cannot be removed from service basing on the said ex parte enquiry report, and directed the Management to reinstate the workman into service as fresh candidate in the same category without back wages and without continuity of any seniority and further directed to issue fresh charge sheet against the workman and complete the same expeditiously.
If the enquiry is vitiated for want of service of notice on the workman and in the event of the workman establishing that he was absent for duty as he was in judicial remand during the relevant period, the Tribunal can set aside the award but it ought not to have directed for initiation of fresh enquiry against the workman and it is not within the competence of the Tribunal to direct the management to initiate fresh enquiry.
The Tribunal has rightly directed reinstatement of the workman into service without any back wages, but the Tribunal ought to have directed the reinstatement of the workman with continuity of service.
In the facts and circumstances of the case, the award of the Tribunal is set aside in so far as directing fresh enquiry against the workman and the reinstatement of the workman as a fresh candidate.
Accordingly, W.P.No.24306/2005 is allowed in part directing the Management to reinstate the workman into service in the same category without any back wages, however, with continuity of service and attendant benefits.
Consequently, W.P.No.19953/2005, filed by the Management, is dismissed. In the circumstances there shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed in consequence.
R.KANTHA RAO,J
Date: 25.04.2014 Dsr