Judgment:
ORDER
G. Bikshapathy, J.
1. The Award of the Labour Court in I.D.No. 100/87, dated 8-2-1990 is assailed in this Writ Petition.
2. The Petitioner was working as a Driver in the 2nd Respondent Tirumala Tirupati Devasthanams. While so, a charge sheet was issued to him with the following charges:
'That on 3-12-1972 at about 11-30 (you) attempted to assault Sri S. Venkata Reddy, Traffic Superintendent, I-Bus Stand Tirupati with big stone by forcibly entering into the Office room while the Superintendent was on duty in the presence of
1. Sri P. Subba Reddy, TTD Contractor,
2. Sri B.S. Ramamurthy, L.D. Clerk, and
3. Sri P. Dorairaj, Conductor'.
Thereafter, an enquiry appears to have been conducted and the statement of the witnesses were recorded. Finally, a show cause notice was issued to him on 7-8-1984 and after considering the explanation submitted by the petitioner, he was removed from service by orders dated 18-10-1984. The petitioner was unsuccessful in the Appeal and Review Applications and finally he filed Writ Petition before this Court vide W.P.No. 1961/84 and the said Writ Petition was dismissed on 2-11 -1984. However, it was observed in the said Writ Petition that it is open for the petitioner to again submit Review Application to the Board for consideration. The Board has again rejected his case. Thereupon, the petitioner moved the Labour Court under Section 2A(ii) of the Industrial Disputes Act. The said Dispute was numbered as I.D.No. 100/87. Before, the Labour Court a Memo was filed by the Respondents requesting the Tribunal to give a finding on preliminary issue whether the domestic enquiry conducted was proper or not. But, however both the sides agreed that the Enquiry Officer conducted enquiry in defective manner. On the basis of the said memo, the Tribunal held that the Enquiry was vitiated. However, on merits the Award was passed holding that the petitioner is guilty of the charges and the punishment, as imposed by the 2nd respondent management, was found to be justified by the Tribunal. Accordingly, the Award was passed on 8-2-1990 granting no relief to the petitioner. Aggrieved by the said award, the petitioner filed the present Writ Petition assailing the said Award. The learned Single Judge allowed the Writ Petition by orders dated 2-2-1995. Against the said order, the Writ Appeal was filed by the management in W. A.No. 942 /95. The Division Bench of this Court remanded the matter for a fresh disposal in accordance with Law, without reference to the memo filed by the parties. That is how the writ petition has come up again for final hearing.
3. The learned Counsel for the petitioner submits that the enquiry was conducted in gross violation of the principles of natural justice and no opportunity was given to the petitioner. Moreover, there are no findings of the Enquiry Officer. Therefore, the entire enquiry ought to have been held vitiated. The said finding would have been given by the Tribunal without reference to the Memo filed by the parties. He also submits that no fresh evidence has been let in by the management justifying the order of removal passed by Tirumala Tirupathi Devasthanams and, therefore, when once the enquiry is found to be defective the burden lies on the respondent to justify the action. In the absence of such a justification, the Tribunal ought to have granted the relief of reinstatement and other consequential benefits. On the other hand, the learned Counsel for Tirumala Tirupathi Devasthanams states that a regular departmental enquiry was conducted and the petitioner was given full opportunity to cross-examine the withesses examined in the enquiry. Since the misconduct committed by the petitioner is grave in nature, the temple authorities passed the orders removing the petitioner from service.
4. The case has to be considered with reference to the validity of the enquiry conducted by the respondent. There appears to be no findings of the Enquiry Officer in the documents filed before the Tribunal and that ground would be sufficient to set aside the enquiry and remand the matter for fresh disposal before the Tribunal. In view of the fact that the petitioner was removed from service in the year 1974, and yet the case has not reached the final stage compels this Court to decide the issue at this level itself. I am not going to the matters whether the charge, as framed against the petitioner, has been established or not as that would be a question for which the evidence has to be necessarily adduced. By remanding and recording the evidence and marking documents are all time-consuming factors and more over, the petitioner has already attained 54 years of age and he is nearing retirement stage. Under these circumstances, the Court considers that even assuming that the charge of attempt of assault is proved, whether the punishment of removal would be proper and justified. Admittedly, in the instant case, the charge as extracted supra, relates to the alleged attempt of assault, on Sri S. Venkat Reddy, Traffic Superintendent. Even assuming that the charge of assault is proved, I am of the opinion that the punishment of removal is not commensurate with the gravity of the misconduct alleged against the petitioner. It is not the case that the petitioner had a bad record in the previous years. In a similar identical case, the Supreme Court in Rmakant Misra v. State of U.P., : (1982)IILLJ472SC , granted the relief to the Workman. The Workman in the said case was charged for use of indecent and abusive language with threatened postures, the Supreme Court held that:
'mere use of such language on one occasion unconnected with subsequent positive action and not preceding by the blame of the conduct would not permit extreme punishment of dismissal from service'.
The same principles will also apply to the present case. The petitioner is alleged to have assaulted (sic. attempted to assault) the superior employee with a stone, but nonetheless no positive action has been taken by the petitioner. Therefore, mere attempt of assault, that too on one occasion, for the reasons which are not discernible from the documents, would not warrant the capital punishment of removal from service. The period of unemployment suffered by him from 1972 (sic. 1974) to till date should serve as a deterrent punishment for the misconduct if any committed by him in 1974 (sic. 1972).
5. The Labour Court failed to exercise the power vested in it under Section 11A of the Industrial Disputes Act, while considering the gravity of the misconduct. It is now well settled that this Court can exercise the powers under Section 11A and grant appropriate relief if the Labour Court fails to do so.
6. Under these circumstances, I am inclined to set aside the Award of the Labour Court and direct the 2nd respondent to reinstate the petitioner into service as Driver without back-wages, but with continuity of service and other notional benefits. In case the petitioner is not found to be fit for discharge of driver's duties, the 2nd respondent shall re-instate the petitioner on other suitable post. The 2nd respondent shall implement the order within a period of two months from the date of receipt of this order. The Writ Petition is accordingly allowed. There shall be no order as to costs.