Judgment : The first petitioner, since deceased, being a workman of the respondent Corporation (A.P.S.R.T.C), filed the Writ Petition assailing the Award dated 11.07.2007 in I.D.No.102 of 2005 passed by the 3rd respondent-Labour Court, which in fact returned a ‘Nil’ Award, thus confirming the punishment of removal from service imposed by the disciplinary authority on the first petitioner. The facts, in brief, are that the first petitioner, appointed a cleaner in the respondent Corporation, had his services regularised on 01.11.1994 as Shramik. On 11.02.2005, the petitioner was chargesheeted on the allegation that he was unauthorisedly absent from duty between 12.01.2005 and 24.01.2005, thereby causing dislocation of work in the garage of the respondent Corporation. Since the first petitioner/ deceased workman did not submit his explanation, the Corporation went ahead with a departmental enquiry. Based on the report submitted by the enquiry officer, the Corporation issued a final show cause notice on 26.01.2005; even the said notice, though was received, remained unreplied by the first petitioner. Eventually, the Disciplinary Authority of the Corporation imposed the major punishment of removal from service through Order dated 05.04.2005. Though intra departmental appeal and later revision were filed, both were dismissed by the authorities concerned through Orders dated 15.06.2005 and 26.09.2005 respectively. Aggrieved by the said order of removal, the deceased workman raised an Industrial dispute in I.D.No.102 before the 3rd respondent-Labour Court, which passed a Nil award dated 11.07.2007. Further, aggrieved, the petitioner filed the present Writ Petition. Pending the disposal of the writ petition, as the said workman died, his wife brought herself on record as the 2nd petitioner through Orders of this Court dated 02.12.2008 in W.P.M.P.No.31996 of 2008. In the above factual backdrop, Sri S.M.Subhan, learned counsel for the petitioner has contended that the punishment of removal from service inflicted on the deceased workman is illegal, unjust and is further grossly disproportionate. The learned counsel has stated that though the deceased workman was absent from duty for one week, the Disciplinary Authority went through the motions of the departmental enquiry in a ritualistic manner, and, eventually, inflicted the punishment in a mechanical manner without applying his mind. It is contended that the deceased workman had been suffering from serious illness of Tuberculosis and that in view of the said illness, the deceased workman had been hospitalised intermittently, thus forcing him to be absent from duty. It is contended that the deceased workman had been suffering from serious illness of Tuberculosis and that in view of the said illness, the deceased workman had been hospitalised intermittently, thus forcing him to be absent from duty. The learned counsel has further submitted that despite the workman bringing on record the ameliorating factors as to his illness, even the 3rd respondent-Labour Court, refusing to exercise its power under Section 11-A of the Industrial Disputes Act, 1947 (“ the Act” for brevity), confirmed the orders of the authorities of the Corporation. Contesting the claim of the Corporation that the deceased workman received the notices on both occasions, but did not submit any explanation, the learned counsel has submitted that assuming that it were to be true, still the authorities were not absolved from their legal obligation to inflict the major punishment only based on proven facts brought on record in a legally recognised manner. In support of his submission, the learned counsel has placed reliance on a Judgment of the Hon’ble Supreme Court in SYED ZAHEER HUSSAIN v. UNION OF INDIA AND OTHERS (1999) 9 SCC 86 )and also in PEPSU ROAD TRANSPORT CORPORATION VS. RAWEL SINGH (AIR (SCW)-2008-0-2099).The learned counsel for the petitioner has also further placed reliance on a judgment of this Court in C. BASAIAH V. APSRTC ( 2008(6) ALD 518 ),apart from a Judgment of the High Court of Allahabad in GOPAL DAS RAWAT V. U.P.STATE ROAD TRANSPORT CORPORATION (LAWS(ALL) 1993 (9) 67). Per contra, the learned Standing Counsel for the respondent Corporation has vehemently opposed the claims and contentions advanced by the learned counsel for the petitioner. He has submitted that the deceased workman had been habituated to unauthorized absence and that he had been given a long rope on previous occasions. Elaborating his submissions, the learned Standing Counsel has stated that his conduct of negligence is evident from the fact that though notices were served on two occasions, seeking explanation to the charges framed against him, and later with regard to punishment proposed to be inflicted on him based on the enquiry report, the petitioner deliberately ignored to respond, thus leaving the Disciplinary Authority with no other option than imposing the punishment, based on the material available on record. The learned Standing Counsel has also made efforts to draw the attention of this Court to all the instances of his past misconduct and stressed the aspect that the punishment imposed on the deceased workman was eminently proportionate to the gravity of the charge the deceased workman had faced and that it would not call for any interference. Adverting to the Award passed by the 3rd respondent-Labour Court, the learned Standing Counsel has stoutly defended it stating that while exercising the power under Section 11-A of the Act, the Labour Court had kept in mind all the settled principles of law as to the power of the Disciplinary Authority in imposing the suitable punishment vis-a-via major misconduct. It is eventually contended by the learned Standing Counsel that the Award of the Labour Court does not call for any interference. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Corporation, apart from perusing the record. To appreciate the issue that has fallen for consideration in this Writ Petition, it is requisite to refer to the charges that have been framed against the deceased workman. The said charges are: “For having absented to your duties unauthorisedly from 12.01.2005 to 24.01.2005 without any prior intimation or informing your in ability to attend for your duties and thereby caused dislocation of work in the garage and carrying forward of R.Cs of the vehicles and failure of vehicle on line, which constitute misconduct under Reg. 28 (xxxii) of A.P.S.R.T.C Employees ( Conduct), 1963. For having habituated to absenteeism frequently and thereby causing dislocation of work in the garage, which constitute misconduct under Reg.28(xxxii) of APSRTC Employees ( Conduct) Regulations, 1963”. A perusal of the above charges indicates that the first charge has been confined to the alleged unauthorised absence of the deceased workman from 12.01.2005 to 24.01.2005 i.e., 13 days. The second charge is with regard to the alleged habitual absenteeism on the part of the deceased workman. The record reveals that, during the course of enquiry, the deceased workman has supplied the explanation for his absence contending that he was suffering from Tuberculosis and had to undergo treatment. Though it was further brought on record that he underwent the treatment in the hospital of the Corporation at Tharnaka, the deceased workman did not seem to have filed any medical certificate. Though it was further brought on record that he underwent the treatment in the hospital of the Corporation at Tharnaka, the deceased workman did not seem to have filed any medical certificate. The Labour Court in its Award also referred to the previous instances of absence on the part of the deceased workman. It was specifically recorded that during the period from April, 2004 to December, 2004, the deceased workman produced medical certificate for three days of his absence, when he was actually absent for 71 days. Further scrutiny of the record reveals that one of the principle factors that weighed with the Labour Court in confirming the orders of the Disciplinary Authority is that the deceased workman did not submit any explanation to the show cause notice issued by the Corporation. Before proceeding further, it is requisite to observe that, as has been contended by the learned counsel for the petitioner, mere failure on the part of the workman to submit any explanation for the charges levelled against him, ipso facto does not cloth the authorities concerned with any plenary power to impose punishment by default. Since the primary burden lies on the Management before inflicting any punishment, especially of major nature, it is incumbent on its part to bring home the guilt or misconduct of the delinquent workman, if not beyond reasonable doubt, at least by way of preponderance of probabilities. A fortiori, concluding the misconduct of deceased workman in terms of his unauthorised absence on the ground of his failure to submit an explanation cannot be sustained. Moving further ahead, we may have to examine the other factors that have weighed initially with the Disciplinary Authority of the respondent Corporation and later with the Labour Court in this regard. It is pertinent to observe that the past conduct of the deceased workman was considered in determining the quantum of punishment imposed on him. It was observed that he was once suspended on the charge of theft and later he had been charged with misconduct of absenting himself from duty on 28.01.2008. The fact, however, remains that, in the first instance, the allegation could not be proved against the deceased workman and on the second occasion, he was reinstated by the appellate authority, who ostensibly felt that the punishment was grossly disproportionate. The fact, however, remains that, in the first instance, the allegation could not be proved against the deceased workman and on the second occasion, he was reinstated by the appellate authority, who ostensibly felt that the punishment was grossly disproportionate. It is further brought on record that his increments were differed for seven times and was censured once. In any event, it may have to be observed that the Corporation has not brought on record any material to establish the nature of the past misconduct. Secondly, these instances of past misconduct have not been made part of any charge, except stating in the second charge that the deceased workman was habituated to be absent from duty. It is an established principle of law, as has been reiterated by the Supreme Court, as well as this Court, on more than one occasion, that the past misconduct, if any, could not be taken into account while determining the present misconduct of the delinquent workman, unless the said issue of past misconduct has been made part of the charges framed against the delinquent workman and he is given an opportunity to explain the same. It cannot be denied that the petitioner was hardly 40 years old when he faced the charge of unauthorised absence and soon thereafter he died due to illness. The unfortunate and premature death of the delinquent workman speaks volumes about his terminal illness. Taking those circumstances into account, this Court has no hesitation to hold that the punishment of removal imposed on the deceased workman is grossly disproportionate to the charge fastened on him. In this regard, it is profitable to consider judicial precedents placed reliance on by the learned counsel for the petitioner. In SyedZaheer (1supra), the delinquent workman absented himself from duty from 09.01.1985 to 15.01.1985 (seven days). When he was removed from service holding that unauthorised absence is a major misconduct and that it was proved against the said workman, the Hon’ble Supreme Court has held that the punishment of dismissal from service is too harsh and that it is required to be substituted by an appropriate lesser punishment. It is further held that the ends of justice would be served if the delinquent workman is reinstated with continuity of service and with all other benefits save and except withdrawing 50% of the back wages from the date of dismissal till the date of reinstatement. It is further held that the ends of justice would be served if the delinquent workman is reinstated with continuity of service and with all other benefits save and except withdrawing 50% of the back wages from the date of dismissal till the date of reinstatement. In Rawel Singh (2supra), the Supreme Court has held that the punishment of dismissal from service on the ground of absence for a few days is grossly disproportionate and exceedingly high. In GopalDas Rawat (3 supra), the High of Allahabad per V.N.Khare, J., as his Lordship then was, placing reliance on BhagatRam Vs. State of Himachal Pradesh (1983-II-LLT-I),reiterated the legal proposition that penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. Having held that, the High Court has further proceeded to examine the issue of proportionality and eventually rendered a finding that extreme penalty of removal from service should not be allowed for every instance of misconduct unless it is very grave. The last judgment the learned Counsel for the petitioner placed reliance on is C. Basaiah (4supra) rendered by a learned Single Judge of this Court. This Court initially observed as to the limitation of judicial review in the following words: “The limited controversy, as of now, is about the exercise of discretion under Section 11-A of the Act, by the Labour Court, and the acceptance by the labour Court, of the findings in the domestic enquiry, had attained finality. The order of remand is specific viz. about the quantum of punishment, which, in turn, is traceable to section 11-A of the Act. This Court is conscious of the limitation on interference with the discretion”. Having taken the judicial note of the limitation this Court imposed upon itself while exercising a judicial review, this Court speaking through his Lordship Sri Justice L. Narasimha Reddy, admirably chose to temper the course of justice with compassion by observing as follows: “The duties assigned to the conductor carry with them, an amount of trust, on behalf of the Corporation. Irrespective of the amount involved, the intention of a person employed as a conductor, while dealing with the tickets and cash, assumes importance. The judgment of the Supreme Court relied upon by the Labour Court is clear on this aspect. Irrespective of the amount involved, the intention of a person employed as a conductor, while dealing with the tickets and cash, assumes importance. The judgment of the Supreme Court relied upon by the Labour Court is clear on this aspect. At the same time, it must not be forgotten that, as part of the duty, the conductor has to issue tickets to hundreds of persons everyday, and a small lapse, which does not reflect misuse of faith, cannot lead to deprivation of livelihood. An element of human rights also exists, in the matters of this nature. It is not only the livelihood of the employee, but also that of his family members and dependants. While there cannot be any compromise with the requirement as to the honesty in discharge of duties, minor lapse should not lead to deprivation of livelihood to an employee and his family. Before the service of an employee, running into few decades, is put an end to, a careful analysis of the matter is needed”. Going by the above ratio, if we examine the present case, evidently the deceased workman had been suffering from terminal illness. His absence was also for a short period. There could be no better proof of illness than the untimely death of the person – an undesirable and unfortunate proof, indeed. Having held that the past misconduct, which has already been paid for by the Delinquent Employee through different grades of punishment, not being part of the present charges, this Court is the opinion that it should not have been taken into account while determining the gravity of punishment to be imposed. Accordingly, this Court has no hesitation to hold that the punishment imposed on the deceased workman is shockingly disproportionate to the gravity of the misconduct he has been charged with and accordingly it is required to be interfered with. Since the delinquent employee died pending disposal of the Writ Petition, his reinstatement could be only notional for the purpose of computing his terminal benefits. Therefore, the Award dated 11.04.2007 passed by the Labour Court is set aside. The order of removal dated 04.04.2005 passed against the deceased workman by the Disciplinary Authority in the first instance also stands set aside. As a natural corollary, the deceased workman was deemed to have been reinstated into service with continuity of service for the purpose of computing his terminal benefits. The order of removal dated 04.04.2005 passed against the deceased workman by the Disciplinary Authority in the first instance also stands set aside. As a natural corollary, the deceased workman was deemed to have been reinstated into service with continuity of service for the purpose of computing his terminal benefits. Since the deceased workman was found guilty of misconduct of unauthorised absence, only the proportionality of the punishment being in question, it is just and proper to deny him the attendant benefits and back wages. Needless to say, the second petitioner is entitled to all the death benefits as are in vague in the Corporation and they may be paid to her as expeditiously as possible. With the above direction, the Writ Petition stands disposed of. No order as to the costs. The miscellaneous petition, if any, pending in this Writ Petition shall stand closed.