Full Judgment
THE HONOURABLE Sr.JUSTICE K.G.SHANKAR WRIT PETITION No.26190 of 2001 22-11-2013 The Superintending Engineer, Irrigation & CAD Department, Irrigation Circle, Chittoor District and one another.....petitioners Sr.S.
Keshava Murthy S/o Nagaraja Rao, C/o 16-9-749/41/1, Race CouRs.Road, Old Malakpet, Hyderabad-36 and one another....Respondents Counsel for the petitioners : G.P.for Irrigation Counsel for the Respondents: Sr.G.
Ravi Mohan : : ?.Cases referred: 1.
(1997) 4 SCC3912.
(1997) 5 SCC3433.
(2002) 10 SCC1474.
(1978) 2 SCC2135.
1987(4) SCC2136.
AIR 1988 SC1182HON'BLE Sr.JUSTICE K.G.SHANKAR WRIT PETITION No.26190 OF2001ORDER
: The fiRs.respondent was dismissed from service through orders dated 27.9.1996.
Questioning the same, the fiRs.respondent raised I.D.No.231 of 1998 before the Industrial Tribunal -cum- Labour Court, Ananthapur.
The second respondent- Industrial Tribunal -cum- Labour Court set aside the enquiry and ordered reinstatement of the fiRs.respondent into service as a fresh appointee.
Questioning the same, the petitioners filed the present Writ Petition.
The petitioner was working as Clerk -cum- Typist in the Irrigation Department.
Alleging that he was absconding from duty without leave from 17.7.1995 till 20.10.1995, a charge sheet was issued containing three charges.
The fiRs.respondent allegedly absconded from duty without leave and without medical certificate.
The fiRs.respondent received the charge sheet.
The fiRs.respondent however did not respond to the same and did not offer any explanation.
Consequently, an Enquiry Officer was appointed by the Disciplinary Authority.
The fiRs.respondent did not appear before the Enquiry Officer on repeated adjournments.
Ultimately on 24.5.1996, the fiRs.respondent was informed by the Enquiry Officer that the enquiry would be conducted ex-parte in the event the fiRs.respondent does not appear before the Enquiry Officer.
The fiRs.respondent, it seeMs.did not appear before the Enquiry Officer despite such a direction from the Enquiry Officer.
Consequently, enquiry was conducted ex-parte.
The Enquiry Officer found the fiRs.respondent guilty.
The enquiry report was communicated to the fiRs.respondent.
Again the fiRs.respondent did not offer any explanation regarding the enquiry report.
Ultimately, on 27.9.1996, the fiRs.respondent was dismissed from service.
The same was reported in the Official Gazette on 17.10.1996.
Questioning the same, the Industrial Dispute was raised by the fiRs.respondent.
As already pointed out, the second respondent-Tribunal concluded that the fiRs.respondent voluntarily evaded enquiry.
However, on the facts and circumstances of the case, the Tribunal considered that the report was not sustainable and consequently, set aside the orders of termination.
The learned Government Pleader primarily contended that the fiRs.respondent is not a workman within the meaning of Section 2(s) of the Industrial Disputes Act and that the Industrial Tribunal -cum- labour Court has no jurisdiction to entertain the application.
The fiRs.respondent was appointed as Typist on compassionate grounds under Rule 10-A of the State and Subordinate Service Rules.
It is further contended by the learned Government Pleader that the fiRs.respondent is governed by A.P.(C.C.A) Rules 1991, and that the fiRs.respondent is a Government Servant and is not a workman.
He placed reliance in support of his contention on HIMANSHU KUMAR VIDYARTHI versus STATE OF BIHAR1.
It was observed in that case that when the appointments are regulated by statutory rules, the concept of Industry to that extent would stand excluded.
He also placed reliance upon EXECUTIVE ENGINEER (STATE OF KARNATAKA) VS K.
SOMASETTY2, where it was observed that the State while discharging a public welfare function cannot be treated as an industry within the meaning of Section 2(j) of the Industrial Disputes Act.
However, in STATE OF GUJARAT versus PWD EMPLOYEES UNION3, relying upon BANGALORE WATER SUPPLY & SEWERAGE BOARD V A.
RAJAPPA4, the Supreme Court observed that PWD is an industry within the meaning of Industrial Disputes Act.
In DHARI GRAM PANCHAYAT versus SAURASHTRA MAZDOOR MAHAJAN SANGH5, Clerks working in the Octroi Section of the Gram Panhayat were held to be workmen within the meaning of Section 2(s) and that Octroi Department of the Panchayat was an Industry within the meaning of Section 2(j) of the Act.
The learned counsel for the petitioner also referred to DES RAJ versus STATE OF PUNJAB6, where it was observed that all employees in the Industrial Undertakings, who are not discharging managerial functions, are workmen within the meaning of Section 2(s) of the Industrial Disputes Act.
I, therefore, consider that the question whether the petitioners is an industry or not within the meaning of Section 2(j) of the Industrial Disputes Act and whether the fiRs.respondent herein is a workman or otherwise under Section 2 (s) of the Industrial Disputes Act is no more res integra.
I have no hesitation to agree with the finding of the second respondent- Industrial Tribunal that the fiRs.respondent is a workman within the meaning of Industrial Disputes Act.
Thus it is evident that the second respondent has jurisdiction to entertain the dispute.
Regarding the quantum of punishment, the fiRs.respondent was absent from duty from 17.7.1995 till 20.10.1995 without sanction of leave and without proper medical certificate.
Assuming that this contention is true, the award of dismissal from service is shockingly disproportionate to the misconduct committed by the petitioner.
The second respondent deemed it appropriate to order reinstatement of the petitioner into service as a fresh candidate.
I consider that the punishment awarded by the Tribunal is quite just and reasonable.
I, therefore, see no reasons to interfere with the award.
Consequently, the Writ Petition is dismissed.
No costs.
Miscellaneous petitions, pending if any in this Writ Petition, shall also stand closed.
_______________________ JUSTICE K.G.SHANKAR DATE: 22.11.2013