Rahemat Ali v. The Central Power Distribution Comopany Of Ap Ltd.,

THE HON'BLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No.4049 OF 2011 Dated:07.03.2017 Between:

Rahemat Ali, S/o. Hyder Ali, Aged about 43 years, Ex. Assistant Lineman, O/o. Assistant Divisional Engineer/Malkajgiri Central Power Distribution Company of A.P., Limited, Malkajgiri, Hyderabad .. Petitioner And The Central Power Distribution Company of Andhra Pradesh Limited, rep., by its Divisional Engineer (Electrical), Operation, Habsiguda, Hyderabad and others .. Respondents The Court made the following:

THE HON'BLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No.4049 OF 2011 ORDER:

Petitioner joined service as Watchman in the year 1982 in the respondent - Company and subsequently promoted as Assistant Lineman. On 12.08.2001, he applied for leave from 12.08.2001 to 22.08.2001 with a claim to go to Hazrat Ali Baba with his family members. Thereafter, the petitioner did not report back to duty and remained absent from service till 13.08.2003 on which date he submitted a representation expressing his willingness to join duty. Along with the said representation, a medical certificate was enclosed showing that he fell sick while returning back from journey and was diagnosed with Abdominal Tuberculosis, which required long treatment and rest. On 19.11.2003, charge sheet was drawn alleging unauthorised absence. Allegation was that the petitioner was unauthorisedly absent for a long time.

Enquiry was conducted and the enquiry officer in his report held the charge of unauthorised absence as proved. Based on the finding of the enquiry officer, the disciplinary authority passed orders on 20.08.2004 imposing penalty of "deemed to have been resigned from service and seize to be in Board employment under Regulation 28 (3) of the Andhra Pradesh State Electricity Board Service Regulations - I as adopted by AP TRANSCO/APCPDCL'. The petitioner raised I.D.No.117 of 2009 before the Labour Court - III, Hyderabad. The Labour Court, by award dated 03.02.2010, dismissed the said I.D. Aggrieved thereby, this Writ Petition is filed.

2.

Elaborate submissions are made by learned counsel for the petitioner taking through the manner in which the disciplinary proceedings were conducted, initiation of the disciplinary proceedings, conducting of enquiry by the enquiry authority, the order passed by the disciplinary authority, the findings recorded and the award passed by the Labour Court.

3.

Learned Standing Counsel for the respondent - Company strongly defended the manner in which the disciplinary action was conducted and the punishment was imposed. He has emphatically asserted that the petitioner was absent without prior permission or sanction of leave for a very long time and he has not produced any authenticated material in support of his claim that he was absent on account of health grounds. Therefore, the punishment is justified.

4.

However, learned counsel for the petitioner submits that the principal ground of challenge against the punishment is, the punishment which is not prescribed in the Service Regulations, cannot be imposed and there cannot be punishment of deemed resignation against a permanent employee and therefore on that ground alone the punishment is liable to be set aside. He further submits that the Division Bench of this Court in the judgment dated 01.04.1997 in W.A.No.898 of 1995 held Regulation 28 (3) of the Andhra Pradesh State Electricity Board Service Regulations (for short, 'the Regulations') as invalid and on the allegation of unauthorised absence, which is a misconduct, disciplinary action has to be taken properly and appropriate punishment should be imposed.

5.

Learned counsel further submits that having regard to the fact that the instant order relates to the period 2001 to 2003 and punishment was imposed in the year 2004, the petitioner would be satisfied if the issue is permanently resolved and to that extent the petitioner would agree even if back wages are denied if it gives quietus to the disciplinary action.

6.

The matter was earlier adjourned to enable the respondents to explore the possibility of resolving the issue, having regard to the earlier judgment of the Division Bench of this Court on the scope of application of Regulation 28 (3) of the Regulations. Learned Standing Counsel fairly submits that the respondent - Company is not in favour of accepting the plea of the petitioner to give quietus to the litigation and non-applicability of the Regulation 28 (3) of the Regulations. He submits that having regard to the fact that the petitioner was intentionally absented from duty for almost two years, without prior intimation or sanction, it is deemed that he lost interest in the employment and therefore Regulation 28 (3) of the Regulations is attracted.

Merely because disciplinary action was initiated and enquiry was conducted, thereafter the order impugned was passed do not take away the competency of the authority to invoke Regulation 28 (3) of the Regulations and therefore the order impugned is valid in law. He further submits that the decision of the Division Bench is in the peculiar facts of that case, whereas in the instant case, detailed procedure was followed for taking disciplinary action resulting in passing of the impugned order.

7.

The short issue for consideration in this Writ Petition is, whether the decision of the respondent - Company in invoking Regulation 28 (3) of the Regulations to hold that the petitioner was deemed to have resigned from service on the ground that he was unauthorisedly absent for two years is valid? 8.

In Chief Engineer, A.P.S.E.B. v. K. Naga Hema1, the respondent claimed compassionate appointment on the ground that her husband was missing for more than a decade. Her application was rejected on the ground that employee was unauthorisedly absent for more than five years and therefore his services stood automatically terminated.

9.

In W.A.No.898 of 1995, the very same issue has come up for consideration. In the said case, employee was absent from duty from 04.03.1982 to 19.01.1984. When he reported to duty on 20.01,1984, he was not permitted to join duty and a memo was served on him alleging that he was absent from duty without obtaining proper sanction of leave and therefore in terms of Regulation 28 (3) of the Regulations, it should be deemed that he had resigned from service with effect from the date from which he had absented.

10.

Following the decision of this Court in Chief Engineer (1 supra), the Division Bench at paragraph Nos.3 and 4 held as under:

"... This Court in CHIEF ENGINEER, APSEB vs.

K. NAGA HEMA has referred to the judgment of the Supreme Court and the principles upon which one cannot but hold that in case there is an allegation that someone 1 1996 (1) ALD 304

has absented himself from work without sanction of leave, is alleged of committing a misconduct and any provision which shall provide for automatic cessation of service on account of unauthorised absence, would not be valid. Since such an allegation is an allegation of misconduct, enquiry into the allegations in accordance with law and a decision accordingly to punish for the alleged delinquency will be necessary.

Although learned single Judge has not decided the issue and has left the matter open observing that it is a fit case for the writ petitioner - appellant to raise industrial dispute since it is not in dispute that the respondent - Board is a 'State' under Article 12 of the Constitution of India and Regulation 28 (3) of the Service Regulations of the respondent - Board provides for automatic cessation, which alone has been invoked, we have to hold, following the above pronouncement of the Court, that the Regulation providing for automatic cessation is invalid and that for the alleged misconduct action can be taken against the writ petitioner - appellant strictly in accordance with law. He must, for the reasons aforementioned, be served with a memo of charges and afforded opportunity of being heard and after enquiry is concluded, it is decided by the competent authority whether to punish him and if to punish him, what would be the quantum of punishment." 11.

The only difference between the facts in W.A.No.898 of 1995 and in the instant case is that the charge memo was served on the petitioner, enquiry was conducted and based on the findings of the enquiry officer, disciplinary authority passed impugned order in the Writ Petition. A perusal of the Discipline and Appeal Regulations disclose that the Discipline and Appeal Regulations do not prescribe discharge of a permanent employee on the ground that he was deemed to have been resigned from service. Course available under Regulation 28 (3) of the Regulations is de horse disciplinary action. The Regulation reads as under:

"... Any employee of the Board who remained unauthorisedly absent from duty for a continuous period of one year shall be deemed to have resigned from service from the date of absence and shall automatically cease to be in Board Employment."

12.

This Regulation is held as invalid by the Division Bench of this Court. When disciplinary proceedings are initiated and power of disciplinary action is exercised by the competent authority, as a quasi-judicial authority he can impose punishment as prescribed in the Service Regulations, but cannot pass any other order nor can impose a punishment which is not prescribed. Having regard to the declaration by the Division Bench, referred to above, the question of discharging an employee as resigned from service on the ground that he was intentionally absent is not valid in law. Thus, the punishment imposed on the petitioner that 'the petitioner deemed to have resigned from service' is not prescribed as one of the punishments that can be imposed and is therefore erroneous and is liable to be declared as illegal. 13.

When this being the specific issue, the Labour Court erred in not appreciating this aspect and went into the merits of the issue of unauthorised absence and dismissed the dispute. In the facts of this case, the award of the Labour Court has to be held as perverse.

14.

Further, learned counsel for the petitioner by referring to the enquiry proceedings strenuously contended that enquiry officer has not followed the due procedure and petitioner was denied reasonable opportunity. On a prima facie perusal of the report of the enquiry authority, there is substance in the contention urged

by learned counsel for the petitioner. Thus, on setting aside the order impugned, the matter has to be remitted to the stage of conducting enquiry afresh.

15.

As noticed above, the unauthorised absence was between 22.08.2001 to 13.08.2003. The disciplinary action resulted in passing the order on 20.08.2004. After 13 years remitting the matter to the stage of conducting enquiry afresh is not just and equitable.

16.

Having regard to the peculiar facts of this case, learned counsel for the petitioner advised the petitioner to file an affidavit foregoing the back wages in the event of restoring the petitioner into service. Though learned Standing Counsel is fair in submitting that such a course may be reasonable in the facts of this case, having regard to the stand of the respondent - Company that the course adopted by the disciplinary authority in treating the petitioner as deemed to have resigned from service in accordance with Regulation 28 (3) as valid he is not opting for resolution of dispute by consent. Having regard to the peculiar facts of this case, I am inclined to accept the declaration given by the petitioner in the affidavit now filed to forego the back wages and to give quietus to the litigation.

However, since the petitioner was absent from duty and such absence was not fully explained resulting in initiation of disciplinary action, I also deem it appropriate to hold that petitioner is not entitled for any benefits for the period of absence i.e., 23.08.2001 to 13.08.2003 and the said period should be treated as dies non.

17.

Subject to treatment of period mentioned as above as dies non and forfeiture of back wages for the entire period of out of service, the petitioner is entitled to all other benefits, (i) pay fixation benefits notionally (ii) entire service of the petitioner, except the period from 23.08.2001 to 13.08.

2003, shall be counted for pension, gratuity and notional increments; (iii) in the meantime, if any junior to the petitioner was promoted, as the petitioner had rendered reasonable amount of service prior to the order impugned, on restoration to service in the cadre of Assistant Lineman, the competent authority shall assess the suitability of the petitioner for promotion including his eligibility for grant of retrospective promotion from the date of promotion of his immediate junior; and (iv) if the competent authority finds the petitioner as suitable for such promotion, the petitioner is also entitled to claim other consequential benefits flowing out of such retrospective promotion. However, the petitioner is not entitled to any other attendant benefits.

It is made clear that it is not a case of exoneration on the charges levelled against him, but on procedural lapses in taking action after conclusion of the disciplinary enquiry, the order impugned is set aside. 18.

Subject to the above, the Writ Petition is allowed in part. There shall be no order as to costs.

Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.

____________________ P. NAVEEN RAO, J Date:07.03.2017 KH