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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

WEDNESDAY, THE SECOND DAY OF AUGUST TWO THOUSAND AND TWENTY THREE

PRESENT

THE HONOURABLE SRI JUSTICE ABHINAND KUMAR SHAVILI AND THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANTI

WRIT APPEAL NO: 612 OF 2023

Writ Appeal under clause 15 of the Letters Patent preferred against the order dated 06/01/2023 in Writ petition no 29923/2017 and to pass on the file of the High

Court.

Between:

R.Ganesh, S/o. Venkat Narsaiah, aged 56 years, Occ. Ex-Conductor, E. No. 303631, H.No. 2-6-1510, Ground Floor, Road No.1, Srinivasa Colony, NGOs Colony, Hanmakonda, Warangal District.

... APPELLANT/WRIT PETITIONER

AND

• 1. The Depot Manager, TSRTC Janagaon Depot, Warangal District.
• 2. Telangana State Road Transport Corporation, Rep. by its Managing Director, Bus Bhavan, Musheerabad, Hyderabad.

...RESPONDENTS/RESPONDENTS

Counsel for the Appellant: SRI JITHENDER RAO VEERAMALLA Counsel for the Respondents: SRI G.SRINIVAS, SC FOR TSRTC

The Court made the following: JUDGMENT

HON'I LE SRI JUSTICE ABHINAND KUMAR SHAVILI AND HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI

W.A.No.612 OF 2023

JUDGMI NT: (Per Hon'ble Sr: Justice Abbinand Kumar Shevili)

Ag (neved by the order dated 06.01.2023 passed in W.P.No. 29923 of 2017 by the learned Single Judge, the present writ appeal has been filed.

2. He rd Sri Jithender Rao Veeramalla, leated counsel appearing for the appellant and learned Standing Counsel for TSR^® C appearing for the respondents.

3. It is the case of the appellant that initially, he was appointed as a Conductor in the respondent-Corporation on 03.04 1987 and since then, he has been discharging his dutie to the best satisfaction of his superiors and everyone concerned. While so, in the month of

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February, 2008, he remained absent from dury for ^a period of 23 days i.e., from 17.02.2008 to 11.03.2008 owing to ill-health. The disciplinary auhoriry has construed the same as misconduct and initiated disciplinary proceedings against him. After conducting a detailed enquiry and for the proven misconduct, the disciplinary authority has imposed the punishment of removal from service uide proceedngs dated O9.OT.2OOB. Aggrieved by the same, rhe appellant has unsuccessfully preferred appeal and revision. Iater, challenging the order of removal, the appellant has filed O.ANo.Z7 of 2015 before the Industrial Tribunal-cum-labour Courr, Varangal (for shorr 'the Labour Co"n). lWithout appreciating any of rhe contentions raised by the appellant, the Iabour Court has dismissed the said O.A vide order dated t2.07.2017. Aggrieved by the same, rhe appellant has approached this Court by fili"g

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W.P.No. 19923 of 2017. The learned Single Judge vide order dated 06.01.2013 dismissed the said writ petition. Hence, the present writ appeal.

4. Lea ned counsel appearing for the appellant had contended that no doubt, the appellant was absent from duty, but the issue is whether the absence of the appellant can be treated as un-authorized absence or not. In the instant case, before the Enquiry Officer, the appellant has projected the reasons for his unauthorized absence. I ut the Enquiry Officer did not appreciate any of the contentions raised by the appellant and held that the charge leveled against the appellant was proved. Learned counsel had further contended that the issue as to whether the absence can be treated as unauthorized was considered by the Apex Court in Krashna Kant

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B,Patmar V. Uniot of lilirt ,ttul arn rrt, wherein the Apex Coun held that if the unauthorized absence from duty is willful, then only it can be treated as unauthorized. In the case on hand, the absence of the appellant was not willful. The appellant could not anend to dury only due to his ill-health.

5. l-earned counsel appearing for the appellant had further contended that the appellant was absent only for 23 days and the punishment of removal is shockingly disproportionate and this fact was neither considered by the Tribunal nor by the leamed Single Judge. Therefore, appropriate orden be passed in the writ appeal bysetting aside the order of removal and directing the respondents to reirstate the appellant into service. kamed counsel had further contended that since the appellant is out of employrnent for the past of 15 yean, he is not claiming

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^ICivil Appealryo.2l06l2ot2, dr. t5.02.2012

any back wages and attendant benefits and he would forego the back wages.

6. Learned Standing Counsel appearing for the respondents had contended that the appellant was absent without prior intimation to the respondents, and it has created let of hardship to the respondent. Corporation and the disciplinary authority has rightly imposed the punishment of removal for the proven misconduct in the enquiry. Therefore, the Tribunal as well as the learned Single Judge was justified in dismissing the case of the appellant. Therefore, there are no merits in the appeal and the same is liable to be dismissed.

7. Havir g considered the rival submissions made by the learned counsel on either side, this Court is of the view that the appellant was absent from 17.02.2008 to 11.03.2008 fue to ill-health, which was construed to be a

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ل. ، س

misconduct, and the punislunent of removal from scrvice is shockingly disproportionate. The Labour C-ourt has failed to apply the wednesbury principle, adminedly, the punishment of removal from service is shockingly disproportionate to rhe charye of unauthor-ized absence for a period of 23 days. Therefore, the labour C_ourt ought to have exercised its power under Section 11-A of the Indtstrial Disputes Act, 1948.

8. In view of the same, the tVrit Appeal is allowed by setting aside the order darcd 06.0L.2023 passed by the leamed Single Judge in \7.P.No.29923 of 2017 as well as tlre order dated 12.07.2012 passed by rhe labour Court in LD.No.77 of 2Ol5 and the respondenrs are direced ro reirutate the appellant into service with all corsequential benefits such as continuity of service, anendant benefits, however, without anybackwages. No cosrs.

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C

Miscellaneous petitions, if any, pending shall stand

closed.

SD/- K SFIINIVASA RAO JOINT REGISTRAR

//TRUE COPY//

SECTION OFFICER

То

The Depot Marager, TSRTC Janagaon Depot, Warangal District. Managing Director, Telangana State Road Transport Concention, Bus Bhavan, Musheerabad, Hyderabad. One CC to SR JITHENDER RAO VEERAMALLA, Advocate [OPUC] One CC to SR G.SRINIVAS, SC FOR TSRTC [OPUC]

5. Two CD Copie :

PSK. LS

HIGH COURT

DATED:02/08/2023

JUDGMENT WA.No.612 of 2023

ALLOWING THE WRIT APPEAL WITHOUT COSTS.