Karnataka High Court
Shri K V Shankar vs The Management Of on 9 March, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 7643 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 7643 OF 2012 (L-TER)
BETWEEN:
SHRI K V SHANKAR
AGED ABOUT 35 YEARS
S/O VENKATARAMANAPPA
R/A # 135/, KAIKONDARAHALLI
CARMELARAM POST,
SARJAPURA ROAD
BANGALORE-560035
... PETITIONER
(BY SRI. S.B. MUKKANNAPPA., ADVOCATE)
AND:
THE MANAGEMENT OF
Digitally M/s G W PRECISION TOOLS PRIVATE LIMITED
signed by PLOT NO.124A,
POORNIMA
SHIVANNA BOMMASANDA INDUSTRIALAREA,
Location: ANEKAL TALUK
HIGH BANGALORE-560099
COURT OF
KARNATAKA ... RESPONDENT
(BY SRI. S.N. MURTHY, SENIOR COUNSEL FOR
SRI. SOMASHEKAR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR ENTIRE
RECORDS ON THE FILE OF THE PRESIDNG OFFICER, II ADDITIONAL
LABOUR COURT, BANGALORE PERTAINING TO I.D.NO.54/2006 AND
ETC.
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WP No. 7643 of 2012
THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING
BEEN RESERVED FOR ORDERS ON 23.01.2023, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
ORDER
1. The petitioner is before this court seeking for the following reliefs:
I. Call for the entire records on the file of the Presiding Officer, II Additional Labour Court, Bangalore pertaining to I.D.No.54/2006;
II. Issue a writ in the nature of certiorari quashing the impugned award dated 07-07-2011 passed by the II Additional Labour Court, Bangalore in I.D.No.54/2006 vide Annexure-H; to the writ petition under the facts and circumstances of teh case;
III. Issue a writ in the nature of mandamus directing the respondent to reinstate the petitioner into service with continuity of service and all other consequential benefits, including full back wages from the date of termination till the date of reinstatement under the facts and circumstances of the case;
IV. Issue any appropriate writ, order/s or direction as this Hon'ble Court may deems fit to grant by considering the facts and circumstances of the case and an order as to costs to meet the ends of justice.
2. The petitioner workman was appointed to the post of 'Grinder' by the respondent-employer on 7.01.2000 and his services came to be confirmed with effect -3- WP No. 7643 of 2012 from 1.04.2001, an order dated 2.07.2001 was issued fixing the salary at Rs.5,000/- pm.
3. It is claimed that the petitioner was discharging his work in a proper manner with good performance and a letter dated 10.11.2004 was issued appreciating his work by the employer.
4. On the ground that workman was suffering from ill health, did not report to work from 16.08.2006. The petitioner-workman claims that this has been informed to the Department head, whereas the employer denies it. The workman claims that without issuance of any notice and without any opportunity being given to the workman, the employer has terminated his services vide order dated 9.09.2006.
5. It is aggrieved by the same proceedings were taken up before the II Addl. Labour Court, Bangalore in I.D. -4- WP No. 7643 of 2012 No.54/2006 filed under Section 10(4-A) of the Industrial Disputes Act, 1947.
6. Since no enquiry had been held, the employer led his evidence to prove the charges. After considering the evidence on record, the labour Court allowed the dispute and ordered reinstatement with 25% back wages vide its award dated 25.01.2010.
7. The workman had filed W.P. No.17019/2010 challenging the same. This Court vide its order dated 17.03.2011 set aside the award and remitted the matter to the labour Court for fresh consideration in the light of the Judgment passed by the Apex Court in the case of The Workman of Firestone Tyre and Rubber Company -vs- The Management and others1.
8. Upon remand, neither the workman nor the employer led any further evidence. After hearing the parties concerned, the labour Court vide order dated 1 [1973(26) FL 359] -5- WP No. 7643 of 2012 7.07.2011 rejected the dispute raised by the workman by holding that the charge of unauthorised absenteeism proved. It is aggrieved by the said award dated 7.07.2011 that the workman is before this Court seeking for the aforesaid reliefs.
9. Sri.Mukkannappa, learned counsel for the workman would submit that, 9.1. There are no rules which had been formulated by the employer requiring the workman to give in a particular manner and or apply for leave. Such being the case, it cannot be said that workman has remained unauthorisedly absent. The only practice which is followed was for the employer to seek permission from the departmental head which has been done by the workman and this being done in an informal manner, there cannot be any evidence which could be led either as regards compliance or non-compliance. Therefore, the say of the -6- WP No. 7643 of 2012 workman that he had informed the department head ought to have been believed by the labour Court.
9.2. The present case is not one of unauthorized absence, it is a case where the workman could not attend to his duties on account of he being unwell, in support of which a medical certificate had been produced.
9.3. The charge of absenteeism being only for l77 days, the imposition of extreme punishment of termination of service is too severe and disproportionate to the gravity of misconduct. 9.4. The discretionary power under Section 11-A of the ID Act ought to have been exercised in favour of the workman, not having done so, has caused substantial failure of justice. 9.5. He relies upon the decision of the Division Bench decision of this Court in Management of -7- WP No. 7643 of 2012 the Mysore Coffee Processing Co-operative Society ltd vs. Presiding Officer2 more particularly para 6 and 7 thereof which are reproduced hereunder for easy reference:
6. Dealing with the similar circumstances and after referring to the various pronouncements of the Apex Court this Court in Abdul Gani v. The General Manager, Vishweshwaraiah Iron and Steel Ltd. [ W.A. No. 7 of 1996 C/W. W.A. No. 4362/95 - D.D. 4.7.97).] settled the position of law in this regard by holding that:
"While this would be the position, where there was a domestic enquiry which was found defective and the justification made in the Labour Court, herein, in the present case, the service of the workman had been terminated without there being an enquiry. It was for the first time before the Labour Court that the employer, on leading evidence, justified the termination of services of the workman. Such a case ought to be covered by the principle enunciated in Sasa Musa Sugar Works (P) Ltd. case. As earlier noted, the Constitution Bench in Kalyani, while referring to the relevant observations in Sasa Musa Sugar Works (P) Ltd., pointed out as to how there had been no previous enquiry whatsoever that had been held by the employer, and as to how the case for dismissal had been made out for the first time in the proceeding under Section 33 before the Labour Court. It was in those circumstances that the Constitution Bench noted that the employees in Sasa Musa Sugar Works (P) Ltd., would be entitled to their wages till the decision on the application under Section 33 i.e., till the decision by the Labour Court. While making this distinction, the Constitution Bench in Kalyani also observed that the matter would have 2 ILR 1998 KAR 18 -8- WP No. 7643 of 2012 been different if, in that case, an enquiry had been held, and if the employer had come to the conclusion that the dismissal was the proper punishment and had thereafter applied for permission under Section 33(1). The Constitution Bench observed that in those circumstances that permission would have related back to the date when the employer came to the conclusion after an enquiry, that the dismissal was the proper punishment and had applied for the removal of the ban by an application under Section 33(1). In other words, if circumstances similar to Sasa Musa Sugar Works (P) Ltd., existed i.e., if the order of termination is without an enquiry as in the present case, then, until termination is justified before the Labour Court culminating in the award of the Labour Court, the workman concerned would be entitled to wages. This is the position duly recognised in Kalyani and D.C. Roy also, when the circumstances relating to Sasa Musa Sugar Works (P) Ltd., were distinctly set out and Sasa Musa Sugar Works (P) Ltd. was distinguished.
In view of what has been discussed above it is held that (i) in case where a defective enquiry is held before termination of services of the workman, the management has a right to justify their action by leading evidence before the Labour Court under the Act. In such a case if the action of the management is upheld, the order of dismissal would relate back to the date when it was actually passed by the management, but (2) in case where the order of dismissal is passed without holding any enquiry and the action is justified by the management before the Labour Court after adducing evidence, the order of dismissal would become effective from the date of the order of the Labour Court and in that event the workman would be entitled to the grant of Full back wages from the date of termination of his services till the date of award of the Labour Court.
7. Such a position of law is in consonance with the principles of natural justice and the objects sought to be -9- WP No. 7643 of 2012 achieved by the Industrial Laws enacted for protecting the interests of the workmen. In the absence of an enquiry as mandated under the Act, Rules, Bye-laws and Standing Orders governing the service conditions of the workman the order of dismissal should be deemed to be non-existent and not operating against the interests of the workman till it is justified in a legal manner by adducing evidence before the Labour Court, inasmuch as the workman, dismissed in complete disregard to the principles of law and awaiting verdict of the Court, would be deprived of the wages even for the period he awaits a judgment. The position in the case of defective enquiry would be totally different because the workman in that case would take a chance to prove that the enquiry though held was defective but in a case where no enquiry was held he would be justified to presume that the action of the respondent was liable to be quashed being contrary to law. For the fault and inaction of the management and in the hope of seeking justice the workman could not be deprived of the wages for the period he remains out of job and employment presumably on account of the pendency of the case in a Court of law.
9.6. By relying on the above judgment, he submits that where an order of dismissal is passed without holding any enquiry, the order of dismissal would become effective only from the date of order of the labour Court confirming dismissal and that the workman would be entitled to full back wages from the date of termination of his service till the date of award of the labour Court. This aspect has not been
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WP No. 7643 of 2012taken into consideration by the labour Court and the claim in this regard also has been rejected by the labour Court.
9.7. He relies on the following decisions:
9.8. M.P. Electricity Board v. Maiku Prasad3, more particularly para No.5 which is reproduced hereunder for easy reference:
5. Accordingly, we modify the award in question to the above extent, that is to say, that fifty per cent back wages shall be paid to the respondent instead of full back wages as directed by the Labour Court and the High Court and direct the appellant to pay such amount of back wages to the respondent within four months from the date of supply of a copy of this order. We keep it on record, as we have already noted in our order dated 13-12-2007, that the respondent has already been reinstated in service by the appellant.
9.9. By relying on the above Judgment, he submits that this Court would have the discretion to decide upon the quantum of back wages.
3 AIR 2009 SC 240
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9.10. Smt. P. Latha vs. the Assistant General Manager (Personnel), BHEL4, more particularly para 8 thereof which is reproduced hereunder for easy reference;
8. In KRISHNAKANT B. PARMAR VS. UNION OF INDIA AND ANOTHER - (2012) 3 SCC 178, the Hon'ble Supreme Court has held as under:
"16. In the case of the appellant referring to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant.
The question whether "unauthorized absence from duty" amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.
18. In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the 4 WP NO. 20142/2014 c/w WP 34905/2014
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WP No. 7643 of 2012absence is willful, in the absence of such finding, the absence will not amount to misconduct.
19. In the present case, the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was willful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty." 9. It is clear from the aforesaid decision that in a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to hold that the absence is willful. In the absence of such finding, the absence will not amount to misconduct. 9.11. By relying on the above Judgment, he submits that mere absence of a workman cannot be said to be unauthorized, for that the employer would have to prove that the workman has willfully remained absent. In the absence of proving as such, it cannot be contended that there is unauthorized absence.
9.12. R.H. Mokashi vs The Divisional Controller, KSRTC5, more particularly para No.5 thereof which are reproduced hereunder for easy reference:
5. After hearing the learned counsel for the parties and upon perusal of the material on record, the only question that arise for consideration in the present 5 WP No.29503/2018
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petition is with regard to the quantum of punishment in the order of dismissal dated 05.09.2014, which was affirmed by the Labour Court in the impugned judgment and award. In this context, it is relevant to state that immediately after reporting to duty on 31.08.2012, petitioner / workman has submitted a letter / explanation as to why he remained absent between 01.06.2012 to 31.08.2012 and has stated that he was suffering from typhoid problems and undergoing treatment, which resulted in him remaining absent during the aforesaid period. Though the petitioner has not produced any material on record to establish the said contention, taking a lenient view in the matter and by imposing certain restrictions and by issuing certain directions to the petitioner not to repeat the same misconduct subsequently and by awarding a lesser penalty than the penalty of dismissal by this Court, which is permissible under Section 11-A of the Industrial Disputes Act, 1947, as held in the case of MANAGEMENT OF BHARAT HEAVY ELECTRICALS LIMITED Vs. M. MANI reported in (2018) 1 SCC 285 and SENAPATH WHITELEY LTD. Vs. KARADI GOWDA AND ANOTHER reported in (1999) 9 SCC 259, I am of the considered opinion that the order of dismissal as well as the impugned judgment and award passed by the Labour Court deserves to be modified and the petitioner be directed to be appointed into service with the respondent as a fresher on regular basis without any back wages or any other benefits.
9.13. By relying on the above Judgment, he submits that if an explanation is given by the workman as regards the reason for his absence, a lenient view has to be taken in relation thereto without the insistence of strict proof.
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WP No. 7643 of 20129.14. Krushnakant. B, Parmar vs. Union of India & another6, more particularly para nos.16, 18 and 20 thereof which are reproduced hereunder for easy reference:
16. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
18. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.
20. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani vs. Union of India and others reported in (2006) 5 SCC 88 wherein this Court held:6
2012(3) SCC 178
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"It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
9.15. By relying on the above Judgment, he once again submits that absence has to be willful to be unauthorized.
9.16. Senapathy Whiteley Ltd V.S. Karadi Gowda and another7, more particularly para No.9 thereof which is reproduced hereunder for easy reference:
9. It is well settled that the powers of the Labour Court under Section 11A are wide and that it would be open to the High Court in justifiable cases to modify the order of the Labour Court. It is also permissible for this Court under Article 136 of the Constitution in appropriate 7 1999 (9) SCC 259
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cases to alter the punishment imposed on the workman for doing justice between the parties. In view of the facts stated above and the subsequent developments which have taken place after the order of dismissal, we are inclined to modify the order passed by the Labour Court. At the same time we would safeguard the interests of the workman by treating him as probationer and converting the order of dismissal into one of discharge subject to, however, payment of amount what has been pottered by the Management. This we are doing in order to remove any stigma that may attach to the respondent if the order of dismissal is to be maintained. An order of discharge does not contain any such stigma.
9.17. By relying on the above Judgment, he submits that this Court has ample power under Section 11-A of the I.D. Act to vary the punishment which has been imposed by the Labour Court.
10. Sri.S.N.Murthy, learned Senior counsel for the employer would submit that, 10.1. The workman remained absent from 16.08.2006 to 9.09.2006 for a period of 24 days without submitting any leave application or informing the management. This is not the first time that the workman has indulged in such action. The workman did not have
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WP No. 7643 of 2012seriousness in discharging his duties. The employer being a small establishment manufacturing high-precision tools with only 30 workmen, is required to supply the goods manufactured to its customers in a timeframe prescribed by the customer. The absence of the workman without any information has resulted in serious disruption in the works of the employer resulting in delay in supply of its products to the customers.
10.2. The unauthorized absence would get multiplied and would have a compounding effect taking into account the restricted number of workers working with the employer. It was required of a workman to have informed the departmental head about his illness, even if it were to be true so as to enable the employer to make alternate arrangement.
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WP No. 7643 of 201210.3. The workman being covered under the ESI Act, he could have reported to ESI about his illness and availed ESI leave. The fact that he did not do so indicates that reason given by the workman of alleged ill health is a false reason. 10.4. In terms of the Karnataka Industrial Employment (Standing Orders) Rules, 1961, a workman who remains absent unauthorisedly for more than eight days loses lien on his appointment unless he explains to the satisfaction of the manager his inability to report to work within eight days.
10.5. The medical certificate was never furnished to the management or the employer, it is only during the examination-in-chief on 25.06.2008 after a gap of more than two years after termination of the services of the workman that for the first time the medical certificate Ex.W4 was produced by the workman. The said
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WP No. 7643 of 2012certificate at Ex.W4 also appears to be false, fabricated and concocted. The petitioner residing in Kaykondarahalli, Sarjapur has got a certificate from Victoria hospital stating that the workman had viral fever from 16.08.2006 to 9.09.2006. The said certificate is unbelievable inasmuch as there is no treatment protocol or prescription produced along with it. It is also not stated as to when for the first time the workman went to Victoria hospital for diagnosis and or treatment. In the absence thereof, it is not permissible for drawing any inference that a retrospective certification of viral fever could be made by the doctor. The medical certificate not having been produced at the relevant time cannot be believed.
10.6. The workman during the period that he was working with the employer from 2001-06 has been unauthorisedly absent for 139 days and
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WP No. 7643 of 2012this absence is on account of the workman being involved in his own business and as such not being interested in discharging the duties to the employer.
10.7. Even on earlier occasions, there were several show cause notices which have been issued by the employer on account of the unauthorized absence of the workman and on all those instances the employer took a lenient view by issuing warnings to the workman. The memos were also not received by the workman due to which the employer was compelled to send the warning memos by RPAD. The same has also been produced before the labour Court. 10.8. The services of the workman had also been suspended on an earlier occasion from 24.04.2006 to 27.04.2006 for his misconduct and unauthorized absence at that point of time. Notice of suspension having been issued, in
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WP No. 7643 of 2012reply, thereto the workman had stated that he was absent on account of expiry of a relative, however a person from the management met the workman at a marriage ceremony. Therefore, he contends that the workman is untrustworthy inasmuch as false statements have been made by the workman to avail leave while attending the marriage. The attitude of the workman continued unabated despite warning memos and the workman continued to remain unauthorizedly absent on several other occasions. It is in that background the employer left with no option had terminated the services of the workmen.
10.9. By referring to the cross-examination before the labour Court, he submits that the workman is untrustworthy, he has made false submissions and there are several contradictions in the evidence. Initially the
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WP No. 7643 of 2012
workman had stated that he had not constructed a house, but subsequently he has stated he has drawn Rs.12 lakhs for construction of house. Initially he stated that he does not own a new Scorpio car but has identified in B-register extract issued by the RTO, Mangalore as Ex.M19 to be of the Scorpio in the name of the workman. It is stated that he was not married as on the date of termination of his service, but however he has otherwise stated that his father-in-law had produced the property. The workman had stated that he was dependant on his brother for his livelihood post the termination of services and that he did not have any other income, however Ex.M35 Annexure-J being statement of income, balance sheet, profit and loss account, indicate that he was running a proprietary concern having similar business as that of the
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WP No. 7643 of 2012employer and there was considerable income arising therein.
10.10. The workman has other source of income firstly being the business viz., 'Shree Lakshmi Industries', secondly being rental income on account of letting out premises owned by him. 10.11. In support of his contention relies upon the following Judgments:
10.12. Vikrant Tyres limited vs. T. Venkatesh8 more particularly para 12 thereof, which is reproduced hereunder for easy reference:
12. By looking into the nature of punishment awarded earlier for the past conduct of the respondent, we are of the opinion that a lenient view had been taken by the management on the earlier occasions right from the date of confirmation till he is dismissed from the service. He is a habitual absentee for the duty without any reasons and it was also brought to the notice of the single judge as to his involvement in political activities and that he had even contested for the assembly elections. When he can contest for the assembly elections, there were no reasons for himself to absent for the duty with the appellant 8 W.A. No.2829/2009 (DB-Kar.)
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management. When the respondent is not disputing his past conduct and punishment imposed by the appellant, we are of the view that learned single judge has committed a serious error in not considering the past record of the respondent. In addition to that, the reference was rejected by the labour court on the ground of delay. Though the respondent was dismissed from services by order dated 15.06.1993, he did not challenge the order of dismissal for a period of four years. This shows further conduct of the respondent. Labour Court considering the materials placed by both the parties, has refused to interfere with the order of dismissal. The learned Single Judge without assigning any reasons for reversing the order and award of the Labour Court, solely on the ground that he was unauthorizedly absent for 13 days, without considering the case of the parties, in entirety, has granted relief to the respondent, which according to us a serious error committed by the learned Single Judge. On considering the entire matter, we are unable to subscribe to the view of the learned Single Judge, in the result, the appeal is allowed. The order passed by the learned Single Judge dated 10.07.2009 in W.P. No. 13031/2008 is hereby set aside. Consequently the writ petition filed by the respondent is rejected confirming the order and award of the Labour Court, Mysore under Reference No.43/1998 dated 03.01.2007. Parties to bear their costs.
10.13. By relying on the above, Sri.S.N.Murthy, learned Senior counsel submits that while imposing the punishment, the disciplinary authority, the labour Court, as also this Court
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WP No. 7643 of 2012can look into the past record of the workman, as also his conduct. He submits that when there is undue delay in challenging the order of dismissal, the labour Court ought not to have considered the same and ought to have dismissed the claim.
10.14. M. Prabhu vs. S.K.F. Bearings India Limited9, more particularly para 9 and 11 thereof, which are reproduced hereunder for easy reference:
9. The learned counsel for the petitioner has relied upon the decision of this Court in W.A.No.2829/2009 (The Management of M/s Vikrant Tyres Ltd., Vs. Sri T.Venkatesh) dated 4.6.2013, wherein it is held that for an unauthorized absence of 13 days, the punishment imposed is fair and proper.
11. By independently looking into the showcause notice-cum-charge sheet dated 4.9.2001, the petitioner has remained unauthorizedly absent for 21 days. It is true that human being suffers from ailment, chest pain etc., but the same should be supported by the medical documents. In the instant case, the petitioner has sent a leave letter. It is the 9 WP No.15926/2013 (L-TER)
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WP No. 7643 of 2012case for consideration by imposing proportionate punishment. The principle is, the punishment should always be proportionate to the gravity of the offence. In the instant case, the petitioner has remained unauthorizedly absent for a period of 21 days and by looking into the past records of service, he was severally and finally warned for absence on 8.7.1998 and demoted by way of punishment for absence on 12.11.1999. Hence, he may not be useful for the respondent-Management. The Labour Court held that the enquiry is fair, proper and valid. 10.15. By relying on the above, he submits that even if the workman were to claim to be unwell, the same can be only for a short period of time unless the ailment is serious. In such a case, the workman is required to produce medical records. In the absence of such medical records, long absence cannot be said to be bonafide but would have to be considered to be willful. He submits that the decision of the Single Bench of this Court has been upheld by the Division Bench in W.A No.124/2018 [M. Prabhu vs. S.K.F. Bearings India Limited], more particularly para 7 thereof, which is reproduced hereunder for easy reference:
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7. It is to be noticed that apart from proved charge of unauthorized absence for 21 days, the petitioner was a habitual absentee. He was issued with caution letter dated 17.08.1995, warned letter dated 26.08.1996, severe warning letter dated 28.06.1997 and final warning letter dated 19.12.1997, letter dated 08.07.1998 for remaining absent for the duty. Further the petitioner was imposed with punishment of reduction of basic pay by order dated 28.05.1999 and was demoted by order dated 12.11.1999. All the above had been admitted by the petitioner in his evidence.
Therefore, taking into consideration the proved misconduct of unauthorized absence and the past misconduct, the petitioner was rightly imposed with the punishment of discharge from service. As contended by the petitioner, the punishment imposed is not disproportionate to the alleged charge. It is not a stray incident. He does this habitually. If it was a stray incident, then the punishment is disproportionate. Since it is habitual, it is not disproportionate. The decision relied upon by the counsel for the petitioner supra has no application to the facts of the present case. In the case relied upon by the petitioner, the allegation was that two Operators and 10 mazdoors on duty in the night shift, at about 3.30 a.m., had gone to sleep keeping the machine in a working condition. The management had let of mazdoors while inflicting punishment of dismissal for 2 Operators, who according to the management were assigned with more responsible duty. The Hon'ble Supreme Court taking note of the surrounding circumstances and especially in the light of their past service records, held that the punishment is proportionate to the alleged charge. But in the case on hand, the facts are entirely different as the punishment is imposed on the proved misconduct of unauthorized absence which affected the production work of the respondent-management
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WP No. 7643 of 2012and looking to the past conduct, wherein, on more than six occasions, the petitioner was punished with minor punishments for remaining unauthorized absence. Hence, we are of the view that there is no merit in the appeal. Accordingly, the writ appeal is dismissed.
10.16. By referring to the above Judgment of the Division Bench he submits that the view expressed by the Single Judge has been approved by the Division Bench with the Division Bench holding that the past proved misconduct could be taken into consideration while imposing the punishment on the workman. The earlier punishments which had been imposed though minor punishments could also be taken into account for imposing punishment on a subsequent date.
10.17. NORTH EAST KARNATKA ROAD
TRANSPORT CORPORATION VS. M.
NAGANGOUDA10 more particularly para 7 and 10 2007(1) LLJ 1013 (SC)
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WP No. 7643 of 201212 thereof, which is reproduced hereunder for easy reference:
7. The appellant-corporation challenged the award passed by the Tribunal by way of a Writ Petition No.46673/2003 contending that the award of the Labour Court was erroneous on the face of the record and the conclusions arrived at were untenable. One of the grounds taken by the appellant was that the Labour Court having found that the respondent is engaged in agricultural operations, should not have held that the same was not an alternative employment. The Writ Petition filed by the appellant came to be listed for final hearing before the learned Single Judge on 2nd February, 2005, and by his Order of even date the Single Judge dismissed the Writ Petition holding that the management had not been able to establish that the respondent was engaged in any gainful employment during the period of dismissal.
The learned Judge also came to a finding that when the misconduct was not proved, there could be no justification in denying grant of back wages and that the conclusion arrived at by the Industrial Tribunal was neither perverse nor arbitrary.
12. On the said question, we are unable to accept the reasoning of the Labour Court that the income received by the respondent from agricultural pursuits could not be equated with income from gainful employment in any establishment. In our view, "gainful employment" would also include self- employment wherefrom income is generated. Income either from employment in an establishment or from self- employment merely differentiates the sources from which income is generated, the end use being the same. Since the
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WP No. 7643 of 2012respondent was earning some amount from his agricultural pursuits to maintain himself, the Labour Court was not justified in holding that merely because the respondent was receiving agricultural income, he could not be treated to be engaged in "gainful employment".
10.18. By relying on the above, he submits that gainful employment would also include income from self employment where any income is generated. It is not required for the workman to have been employed by a third party but self employment even agricultural which generates income is sufficient.
10.19. J.K. Synthetics vs. K.P. Agrawal11, more particularly para 18 and 19 thereof, which are reproduced hereunder for easy reference:
18. Coming back to back-wages, even if the court finds it necessary to award back-wages, the question will be whether back-wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a 11 2007(2) LLJ 128
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relevant factor to be taken note of while awarding back- wages, in addition to the several factors mentioned in Rudhan Singh (supra) and Udai Narain Pandey (supra). Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may.
19. But the cases referred to above, where back-
wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the court found that the termination was motivated or amounted to victimization. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or section 11A of the Industrial Disputes Act (or any other similar provision) is exercised by any Court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the
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WP No. 7643 of 2012employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back-wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions etc.
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WP No. 7643 of 201210.20. Relying on the above, he submits that awardal of back wages is not a rule. The Court would have necessary discretion to award full back wages or part back wages and the percentage thereof. The income of the workman derived from other gainful employment would also have to be considered. It is required for the workman to categorically assert on oath that he is not gainfully employed. This court would have adequate power to enhance the punishment ordered and the power is not restricted to only reducing punishment. 10.21. K.S.R.T.C. vs. A. Ramanan12, more particularly para 17 thereof, which is reproduced hereunder for easy reference:
17. On a careful examination of the material on record, pleadings and after hearing the learned counsel for the appellant and the respondent, we are of the view that this Appeal is to be allowed for the reasons as under:12
2001(2) LLJ 1212 (DB-Kar)
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The Labour Court having found that one of the charges levelled against the respondent/workman was found proved, even after having set aside the domestic enquiry and based on the evidence led before the Labour Court ought not to have interfered with the order of dismissal to convert the same into one of reinstatement with denial of back wages to 50%. In this regard, the ratio laid down by the Apex Court in the two cases referred to above and relied upon by the learned counsel for the appellant is squarely attracted to the facts of the present case. In fact, the Labour Court was wholly unjustified in invoking the provisions of Section 11A of the Industrial Disputes Act to the case in hand even after it found that one of the charges as against the workman was sustained and made home by the management. We are also of the view that the Labour Court erred in this regard in holding that the past record of the workman should be ignored for the purpose of examining the proportionality or the quantum of punishment. We say this for two reasons. Firstly, for the reason that past record of the workman is an aspect which finds statutory recognition in Regulation 25 of the Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations 1971 which gives a statutory recognition to the past record of a workman namely that the past record, is one of the circumstances to be taken into consideration while deciding on the quantum of punishment.
To say that taking into consideration past record without either appraising the workman of the same or without issuing show-cause-
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notice proposing the punishment to be imposed when the past record is also taken into consideration will amount to violation of principles of natural justice may not be very apt as Regulation 25 governing the same is statutory and it is not as though a surprise is spring on the workman. If the workman had suffered earlier punishment which again will be within his knowledge, the question of workman being ignorant of the same also does not arise. Moreover, past record is not a material for holding the delinquent/workman as guilty of a charge in the present enquiry but is only a circumstance to be taken into account while determining the commensurate penalty. For these reasons we hold that the Labour Court is in error in refusing to take into consideration or not taking the past record as a circumstance justifying the punishment of dismissal which had been imposed by the disciplinary authority and for not sustaining the order of dismissal. Secondly and more importantly we are also of the view that the order of dismissal passed by the disciplinary authority having taken into consideration the past record of the workman and having relied upon the same and this being part of the record before the Labour Court and the Labour Court having set aside the domestic enquiry as not being fair and proper and having allowed opportunity to lead evidence to the parties, the past record of the workman was an aspect which was well within the knowledge of the parties including the workman. The Labour Court itself having referred to this aspect of the matter, it is very obvious that the workman was aware of this aspect and Court have placed material and even could have made appropriate submissions on this aspect before the Labour Court. In this context we are of the very clear view that the Labour Court was not justified in
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holding that the reliance and consideration of the past record of the workman on the aspect of quantum of punishment and the order of dismissal being based on the same cannot be sustained as being in violation of the principles of natural justice. We are of the view that the Labour Court is not correct in placing reliance on the decision of this Court reported in B. Nagaraj v. K.S.R.T.C. for holding that it was "in violation of principles of natural justice".
10.22. By relying on the above, he submits that the employer can take into account the past misconduct and the past punishment imposed, while doing so, there is no need for any notice to be issued to the workman since the workman was aware of earlier punishment imposed on him.
10.23. Workmen of Firestone Tyre and Rubber vs. Management13, more particularly para 29 thereof, which is reproduced hereunder for easy reference:
29. The rights of an employer to avail itself of an opportunity to satisfy the Tribunal by adducing evidence, when an enquiry held by it was found to 13 AIR 1973 SC 1227
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be defective or when no enquiry at all has been held, have been stated in State Bank of India v. R.K. Jain [(1972) 1 SCR 755] as follows:
"It should be remembered that when an order of punishment by way of dismissal or termination of service is effected by the management, the issue that is referred is whether the management was justified in discharging and terminating the service of the workman concerned and whether the workman is entitled to any relief. In the present case, the actual issue that was referred for adjudication to the Industrial Tribunal has already been quoted in the earlier part of the judgment. There may be cases where an inquiry has been held preceding the order of termination or there may have been no inquiry at all. But the dispute that will be referred is not whether the domestic inquiry has been conducted properly or not by the management, but the larger question whether the order of termination, dismissal or the order imposing punishment on the workman concerned is justified. Under those circumstances it is the right of the workman to plead all infirmities in the domestic inquiry, if one has been held and also to attack the order on all grounds available to him in law and on facts. Similarly the management has also a right to defend the action taken by it on the ground that a proper domestic inquiry has been held by it on the basis of which the order impugned has been passed. It is also open to the management to justify on facts that the order passed by it was proper. But the point to be noted is that the inquiry that is conducted by the Tribunal is a composite inquiry regarding the order which is under challenge. If the management defends its action solely on the basis that the domestic inquiry held by it is proper and valid and if the
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Tribunal holds against the management on that point, the management will fail. On the other hand, if the management relies not only on the validity of the domestic inquiry, but also adduce evidence before the Tribunal justifying its action, it is open to the Tribunal to accept the evidence adduced by the management and hold in its favour even if its finding is against the management regarding the validity of the domestic inquiry. It is essentially a matter for the management to decide about the stand that it proposes to take before the Tribunal. It may be emphasised, that it is the right of the management to sustain its order by adducing also independent evidence before the Tribunal. It is a right given to the management and it is for the management to avail itself of the said opportunity."
10.24. By relying on the above, he submits that employer has lead evidence in the matter justifying it action and it is this which has been considered by the labour Court and as such, the order passed by the labour court is proper and correct. He further submits that in the event of no domestic enquiry being held if the labour Court were to find the enquiry to be fair and proper and were to uphold dismissal, the said order relate back to the date of original order.
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WP No. 7643 of 201210.25. Engg. Laghu Udyog Employees' Union v.
Judge, Labour Court14, more particularly para 5 thereof, which is reproduced hereunder for easy reference:
5. Having heard the matter, we are of the view that the said submission cannot be accepted as this question stands concluded by a Constitution Bench decision of this Court in P.H. Kalyani v. Air France, Calcutta [AIR 1963 SC 1756 : (1964) 2 SCR 104] .
In P.H. Kalyani case [AIR 1963 SC 1756 : (1964) 2 SCR 104] it was held by the Constitution Bench that where a domestic inquiry is found defective and the employer leads evidence before the Labour Court and subsequently, the Labour Court gives its approval that the charges are proved, the order of termination would relate back to the date of original order of termination. This decision was followed in Punjab Dairy Development Corpn. Ltd. v. Kala Singh [(1997) 6 SCC 159 : 1997 SCC (L&S) 1434] wherein it was said that the Constitution Bench decision in P.H. Kalyani case [AIR 1963 SC 1756 :
(1964) 2 SCR 104] and the decision in R. Thiruvirkolam v. Presiding Officer [(1997) 1 SCC 9 :
1997 SCC (L&S) 65] have held that when the Labour Court records a finding that the domestic inquiry was defective and opportunity was given to the management and the workman to adduce evidence and the Labour Court upholds dismissal order passed by the management, the dismissal order would relate back to the date of order of original dismissal and not from the date of award of the Labour Court. In Vishweshwaraiah Iron & Steel Ltd. v. Abdul Gani [(1997) 8 SCC 713 : 1998 SCC 14 2004 LLR 331 (SC)
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(L&S) 4] this Court, however, observed that some of the decisions rendered by this Court subsequent to P.H. Kalyani case [AIR 1963 SC 1756 : (1964) 2 SCR 104] require a relook as the same are not in consonance with the Constitution Bench decision. The same Bench in Director, State Transport, Punjab v. Gurdev Singh [(1998) 2 SCC 159 : 1998 SCC (L&S) 512] held that where an order of termination is found defective having been passed contrary to the principles of natural justice and the employer before the Labour Court has adduced evidence to prove the charges and the Labour Court comes to the conclusion that the charges are proved, in such a situation the order of dismissal will relate back to the original order of termination. In Rambahu Vyankuji Kheragade v. Maharashtra Road Transport Corpn. [1995 Supp (4) SCC 157 : 1996 SCC (L&S) 173] it was held that the effective date of dismissal after domestic inquiry if the Labour Court finds the inquiry to be unfair and as such gives the employer an opportunity to prove the charge and finally upholds the dismissal, will relate back to the date of original order. This has been the consistent view of this Court.
10.26. By relying on the above judgments he submits that the writ petition is required to be dismissed.
11. Heard Sri. S.B Mukkannappa, learned counsel for petitioner and Sri.S.N. Murthy, learned senior counsel for Sri. Somashekar, advocate for respondent. Perused the papers.
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WP No. 7643 of 2012
12. The points that would arise for determination are:
i. Whether in all cases it is required for the employer to conduct an enquiry before dismissal of the workman?
ii. In the event of a workman being dismissed without enquiry and a dispute is raised before the labour Court, what would the burden of proof on the employer?
iii. In the event of the dismissal being accepted to be proper and correct, would the employer be liable to make payment of back wages, if so, at what rate?
iv. In the present matter, whether the order of the Labour court suffers from any infirmity requiring interference?
v. What order?
13. ANSWER TO POINT NO.1: Whether in all cases it is required for the employer to conduct an enquiry before dismissal of the workman?
13.1. The decision of this Court in Management of the Mysore Coffee processing co-operative society ltd's case (supra2) is clear. In that where a defective enquiry is held before termination of services or where the order of dismissal has been passed without holding an enquiry, then the said action is required to be
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WP No. 7643 of 2012justified by the management before the labour court after adducing evidence. The order of dismissal becoming effective only from the date of the order of the labour Court, in the event of the labour Court upholding the order of dismissal. Thus, in all cases it is not necessary that an enquiry be held for purposes of dismissing a workman or imposing any penalty/punishment.
13.2. The choice of holding enquiry or not would be vested with the employer/management. In the event of no enquiry being held, adequate and sufficient evidence would have to be led by the employer before the labour Court to establish the delinquency and/or misconduct on part of the workman requiring imposition of punishment that was imposed by the disciplinary authority. In the event of the labour Court being satisfied with such evidence,
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WP No. 7643 of 2012then it could confirm the order of dismissal or levy of penalty. In the event of the labour Court being unsatisfied, then such order of dismissal/levy of penalty or punishment can be set aside by the labour Court. In the event of an order of dismissal being passed and or penalty imposed without enquiry, the same would come into effect if not challenged on the date of passing of the order. However, if the same were to be challenged before the labour Court, the order of dismissal and or levy of penalty would come into operation only from the date of the order of the labour Court and not earlier.
13.3. In the event of no enquiry being held and the labour Court coming to a conclusion that the order of termination was invalid, in that event the employer would be required to make payment of full back wages from the date of
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WP No. 7643 of 2012termination of his services till the award of the labour Court and or the date of reinstatement by the employer.
14. ANSWER TO POINT NO.2 : In the event of a workman being dismissed without enquiry and a dispute is raised before the labour Court, what would the burden of proof be on the employer?
14.1. A part of this question has been answered while answering point No.1. In the event of the workman being dismissed without enquiry, the entire burden of proving the misconduct and/or delinquency, as also the punishment imposed being proportionate to the delinquency, is on the employer. The employer is required to prove the delinquency/misconduct, as also the requirement to impose such a punishment. Needless to say, if the employer were unable to prove the delinquency then the order of dismissal and/or levy of penalty would be set- aside.
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WP No. 7643 of 201214.2. In the event of the employer being able to establish delinquency/misconduct, the employer would still be required to establish that the punishment imposed is required. If the same is not so established, the labour Court would be at liberty to vary the punishment imposed by the employer.
15. ANSWER TO POINT NO.3: In the event of the dismissal being accepted to be proper and correct, would the employer be liable to make payment of back wages, if so, at what rate ? 15.1. This question has been partly answered while answering point No.1. In the event of an order of dismissal being passed by the employer and the same being challenged by the workman, then the employer, as stated above, would have to prove the delinquency and misconduct. If the employer were to prove so and the labour court were to accept it, the order of dismissal would become effective from the date of order of the labour Court and not from the date of the
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WP No. 7643 of 2012order of dismissal passed by the employer.
Even then, as held by this Court in
Management of the Mysore Coffee
processing co-operative society ltd's case (supra2), the employer would be liable to make payment of back wages from the date of dismissal to the date of award confirming the dismissal.
15.2. The submission of Sri.S.N.Murthy, learned Senior counsel relying on Engg. Laghu Udyog Employees' Union's case (supra14) and/or Workmen of Firestone Tyre and Rubber's case (supra13) that the order of dismissal will relate back to order of the labour Court upholding the order of dismissal date is not correct. In both the above cases the issue was as regards defective enquiry and not cases of no enquiry.
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WP No. 7643 of 201215.3. The present case is one of no enquiry and in such a situation if an order of dismissal is challenged, the said order will be effective from the date on which the labour Court were to uphold the order of dismissal. Thus, there is no concept of relation back and the employer would have to make payment of back wages from the date of termination till the order of labour Court.
16. ANSWER TO POINT NO.4: In the present matter, does the order of the Labour court suffer from any infirmity requiring interference?
16.1. In the present matter, the labour Court vide its order dated 7.07.2011 upheld the charge of unauthorized absenteeism and dismissed the claim of the workman. The contention of Sri.S.B.Mukkannappa, learned counsel for workman that the workman had informed the department head on account of him being
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WP No. 7643 of 2012unwell, documents on record indicate that the workman was absent for 177 days.
16.2. There is no particular document on record which would justify his absence for 177 days. Even if it were to be admitted that he was unwell for few days, in cases where the enquiry is not held, the burden of proving the delinquency is on part of the employer. 16.3. In the present case, the employer has established that the workman was absent for 177 days. The employer has also established that there is no permission or sanction which has been obtained by the workman for such absence.
16.4. An opportunity is always available for the workman to establish that despite no permission having been taken, there were circumstances which justify his absence. For
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WP No. 7643 of 2012example, a bereavement in the family or the workman being sick and laid up and is unable to report to work or any particular circumstance/s which would have the effect of the workman not being able to report to work. This is in the nature of exception and or justification which facts are in the specific personal knowledge of the workman and it is for the workman to lead evidence, both oral and documentary to establish the justification for his absence.
16.5. The workman has not done so in the present case except to state that he had informed his Departmental Head of him being unable to attend and that he was unwell. There is no justification which has been established by the workman. Thus, the question of exercising discretion as sought to be contended by Sri.S.B.Mukkannappa, learned counsel for the
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WP No. 7643 of 2012workman by relying upon the Judgments in Micro Prasad, P.Latha would not arise. The decision in Mokashi's case would not be applicable since the absence there was from 1.6.2012 to 31.8.2012 when the workman had contended that he was suffering from typhoid and undergoing treatment. There the absence was for a period of three months or 90 days. In the present case, the absence is for a period of 177 days without any details of such ailment as typhoid being produced.
16.6. The contention of Sri.S.B.Mukkannappa, learned counsel is that the absence is not willful and was beyond control. Merely because the absence is for reason beyond control, I am of the considered opinion that the same will not make it willful but will still remain unauthorized. Over a period of 177 days, the workman had enough and more opportunity to place on
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WP No. 7643 of 2012record the reason for his absence and seek for leave which he has not done. Thus, reliance placed by him on Paramar's case is not proper. 16.7. There is much force in the submission made by Sri.S.N.Murthy, learned Senior counsel for the employer that it was the obligation on part of the workman to establish justification for his absence which is not done and therefore, I am of the considered opinion that the order passed by the Labour Court is proper and correct and does not require any interference. Hence, I pass the following:
ORDER The petition stands dismissed.
Sd/-
JUDGE LN List No.: 1 Sl No.: 68