HON’BLE Dr. JUSTICE K.G.SHANKAR Writ Petition No.16335 of 2001 Date: 20-01-2014 Between G. Yadagiri ... Petitioner and The Industrial Tribunal-cum-Labour Court, rep.by its Presiding officer, Warangal, and another. … Respondents
HON’BLE Dr. JUSTICE K.G.SHANKAR
Writ Petition No.16335 of 2001
ORDER:
The award of the Industrial Tribunal-cum-Labour Court, Warangal (the Tribunal, for short) dated 21.06.1990 is assailed by the employee-petitioner.
The petitioner seeks for a Writ of Certiorari to set aside the nil award in Industrial Dispute (I.D.) No.3 of 1989 and to order reinstatement of the petitioner into service with continuity of service.
2. The case of the petitioner is that he worked as a watchman under the second respondent-Andhra Pradesh Housing Board, Warangal, from 1981 to 1983 continuously. The petitioner became involved in a criminal case in 1983. On 01.08.1983 the second respondent allegedly restrained the petitioner from discharging his duties as a watchman. The criminal case registered against the petitioner in C.C.No.92 of 1985 on the file of the Special II Class Magistrate, Karimnagar ended in acquittal on account of composition by the de facto complainant. The petitioner contended that despite acquittal by a competent criminal court, the petitioner was not taken back into service by the second respondent. Questioning the attitude of the second respondent, the petitioner raised I.D.No.3 of 1989 before the Tribunal.
3. The learned counsel for the petitioner contended that the petitioner completed 240 days of actual service and the termination of the petitioner without following Section 25F of the Industrial Disputes Act, 1947 is illegal and is liable to be set aside.
4. Before the Tribunal, the petitioner was examined as WW.1. The Management examined two witnesses as MWs.1 & 2. MW.1, who was District Housing Engineer of Karimnagar from July, 1983 till March, 1984, admitted that the petitioner absconded from duty with effect from 01.09.1983. It is also not very clear whether the petitioner worked continuously from 1981 to 1983 and thus put up more than 240 days of continuous service in a calendar year/12 months period.
5. It is the case of the second respondent/employer that the petitioner voluntarily abandoned employment and that there was no opportunity or occasion for the second respondent to terminate the services of the petitioner for one reason or the other. It would appear that a complaint was lodged against the petitioner on 01.10.1983 leading to registration of C.C.No.92 of 1985. However, the second respondent contended that the petitioner absconded from duty with effect from 01.09.1983 itself. It is the contention of the learned counsel for the petitioner that assuming that the petitioner absconded from duty, the services of the petitioner cannot be terminated without due enquiry.
6. Regarding deemed abscondence from duty, it was observed in V . C . , Banaras Hindu University v. Shrikant[1] that action taken when the employee was on deemed abscondence should be fair and reasonable to satisfy the requirements of Article 14 of the Constitution of India. The Supreme Court stated in para 40:
“Although, laying down a provision providing for deemed abandonment from service may be permissible in law, it is not disputed that an action taken thereunder must be fair and reasonable so as to satisfy the requirements of Article 14 of the Constitution of India. If the action taken by the authority is found to be illogical in nature and, therefore, violative of Article 14 of the Constitution, the same cannot be sustained. Statutory authority may pass an order which may otherwise be bona fide, but the same cannot be exercised in an unfair or unreasonable manner ”
7. It is contended by the learned counsel for the petitioner, on the basis of Shrikanth (supra) that the termination of the petitioner without due enquiry is not just and reasonable and is not fair. He consequently seeks for reinstatement of the petitioner into service.
8. The learned counsel for the second respondent, however, attacked the case on the ground of latches. The petitioner was not permitted to discharge his functions with effect from 01.09.1983. The criminal court acquitted the petitioner on account of composition of the offence through judgment dated 03.11.1985.
The case of the petitioner is that the petitioner, however, was not taken back into duty. The petitioner raised I.D. as late as in 1989. Whether the delay is computed from the date on which the petitioner was restrained from entering duty which was 01.09.1983 or from the date on which the petitioner was acquitted which was 03.11.1985, there was a delay of more than three years in raising the industrial dispute. No explanation was offered by the petitioner for the delay. However, the question of delay has not come up for consideration before the Tribunal. After passing of the award on 21.06.1990, the present writ petition was laid on 06.08.2001 i.e., more than 11 years thereafter.
The learned counsel for the second respondent strongly objected the writ petition on the ground that there was delay in filing the writ petition and contended that as not even reasonable explanation was offered by the petitioner for the delay, the writ petition is liable to be dismissed.
9. The learned counsel for the second respondent placed reliance upon P.V. Narayana v. APSRTC,
[2]
Hyderabad . The question of abnormal delay of 5 years to 18 years in raising a dispute, filing an appeal, filing a revision, or a writ petition by a workman was held to be fatal unless the workman properly explains the delay.
It is contended by the learned counsel for the respondent on the basis of P.V. Narayana that as there was an unexplained delay of 11 years in filing a writ petition from the date of award, the writ petition itself is not maintainable.
10. It may be noticed that this is not a case where the penalty of stoppage of increment or other reasonable penalty was imposed against the petitioner. The very services of the petitioner were terminated and the petitioner ceased to be on the rolls of the second respondent. The learned counsel for the petitioner contended that it took time for the petitioner to raise funds to approach the Court. While the delay is considerably abnormal, I am afraid that delay per se cannot disallow the claim of the petitioner. The petitioner deserves the relief which shall be moulded in tune with the delay.
11. Where it is contended by the second respondent that the petitioner absconded from duty and where no enquiry was conducted against the petitioner at any point of time, I am afraid that the termination of the petitioner without preceded by a formal enquiry cannot be accepted. I am not able to agree with the finding of the Tribunal that the termination of the petitioner is just and reasonable as the termination or abandonment of service was not preceded by any enquiry. The petitioner, therefore, deserves to be reinstated into service.
12. It may be noticed that the termination/abandonment of service of the petitioner was with effect from 01.09.1983. More than 30 years have elapsed from the date of termination. I, therefore, consider that instead of ordering reinstatement of the petitioner, reasonable compensation may be awarded to the petitioner in lieu of reinstatement together with service benefits.
13. Accordingly, the writ petition is disposed of directing the second respondent to pay compensation of Rs.1,00,000/- (Rupees One Lakh only) to the petitioner within four weeks from the date of receipt of a copy of this order towards full and final settlement of service benefits to which the petitioner is entitled to. In the event, the second respondent fails to pay the same within four weeks from the date of receipt of a copy of this order, the amount of Rs.1,00,000/- shall attract interest at 9% per annum from the date of writ petition till payment.
No costs. Miscellaneous Petitions, if any pending in this writ petition, shall stand closed.
Dr. K.G. Shankar, J.
Date: 20.01.2014 Isn HON’BLE Dr. JUSTICE K.G.SHANKAR Writ Petition No.16335 of 2001 Date: 20-01-2014 Isn
[1] 2006 (4) ALD 102 (SC)
[2] 2013 (4) ALD 686 (FB)