Full Judgment
L. Narasimha Reddy, J.
1. The petitioner is employed as a driver in A.P.S.R.T.C. He was issued a charge-sheet on 8-9-2004 alleging that he was absent on the previous day and was required to show-cause as to why suitable action shall not be taken. Departmental enquiry was initiated and on the basis of the enquiry report, dated 3-11-2004, the petitioner was removed from service through order dated 20-5-2005. The same is challenged in this writ petition.
2. Sri G. Ravi Mohan, learned Counsel for the petitioner, submits that the punishment imposed against the petitioner is disproportionate and cannot be sustained in law or on facts. He contends that absence for one day that too on account of ill-health of the daughter of the petitioner could not have been treated as a grave misconduct, so as to result any deprivation of the livelihood of the petitioner.
3. Learned Standing Counsel, who took notice and argued the matter at the admission stage, submits that the petitioner had an alternative remedy of preferring an appeal or of raising an industrial dispute. She contends that the past conduct of the petitioner has been very objectionable. It is urged that though the present cause for removal is the absence for one day, viewed in the context of the previous punishment imposed on the petitioner, it cannot be said to be disproportionate, illegal or untenable.
4. In the ordinary course of things, the petitioner must be required to pursue his remedies of appeal and review under the relevant service regulations and, if necessary, to raise an industrial dispute. Proportionality of a punishment is also, by and large, in the realm of the discretion of the Labour Court under Section 11-A of the Industrial Disputes Act. In the instant case, the only charge against the petitioner is that he was absent from duty on 7-9-2004. The charge-sheet was issued on the next day. In his explanation, the petitioner categorically stated that he attended for duty on-7-9-2004, but when he received a telephone call about serious illness of his daughter, he left the depot premises after intimating the fact to the concerned Superintendent. Departmental enquiry against the petitioner in the above context was almost an empty formality. The petitioner was absent and he did not dispute that there were no disputed facts, warranting any finding by the Enquiry Officer.
5. It is always the prerogative of an employer to regulate the conduct of the employees and to impose punishment wherever it becomes necessary. But, mere existence of power does not justify the exercise of it. Absence for one day in an organization like APSRTC, by no stretch of imagination can result in the imposition of punishment of removal from service.
6. In the order of removal, the respondent has referred to earlier instances of absence of the petitioner. Here it is to be noticed that in disciplinary proceedings, the past conduct of an employee is taken into account, to examine whether there exist any extenuating circumstances in the matter of imposition of punishment. In other words, where the outcome of the enquiry warrants imposition of a particular punishment, the past conduct can be referred, to see whether the proposed punishment, can be reduced in any manner. Such conduct is never taken into account, to enhance a punishment, which is warranted as a result of the enquiry. In such an event, it becomes an aggravating and an extenuating factor. If the charges proved against an employee, warrant not so severe a punishment, the past conduct cannot be a factor to enhance the same. Viewed from this angle, the approach of the Depot Manager, the 2nd respondent herein, cannot be sustained.
7. Further, no charge was framed against the petitioner, as regards his past absence. Therefore, this Court is of the view that the order of removal passed against the petitioner deserves to be set aside. However, the petitioner cannot be given a clean chit. Since he has caused dislocation of the work in the Depot. When this Court thought of remanding the matter to the 2nd respondent for fresh consideration, learned Counsel for the petitioner, on instructions, submits that the matter can be given a quietus, by imposing suitable punishment. This Court is of the view that the ends of justice would be met, if the punishment of reduction of the pay scale by two stages with cumulative effect shall act as a punishment as well as deterrent. The petitioner is agreeable for that course of action.
8. Hence, this writ petition is partly allowed modifying the order dated 20-5-2005 to be the one into the imposition of punishment of stoppage of two annual increments with cumulative effect. The petitioner shall not be entitled to any back wages and the period from the date of removal till the date of reinstatement shall be treated as not on duty, without wages. So far as the continuity of service is concerned, it is directed that in case of petitioner performs his duties without any unauthorized absence for a continuous period of three years, he shall be entitled to the continuity of service. In the event of there being any unauthorized absence, he shall not be entitled for the benefit of continuity of service. It shall be open to the Corporation to proceed against the petitioner, in case, he resorts to unauthorized absence.