Karnataka High Court
The Chief Traffic Manager (Traffic) vs Sri T M Venkatesh on 27 February, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATABA DATED THIS THE 27"! DAY OF FEBRUARY, 2012." BEFORE a THE HON'BLE MR.JUSTICE ARAVIND KUMAR W.P.NO.25422 2011 C/W.: , W.P. NO.1801 2012. L- KSRTC) . IN W.P.NO.25422 2012. BETWEEN: THE CHIEF TRAFFIC MAI NAGER: (TRAFFIC) K.S.R.T.C., CENTRAL OFFICE, -- K.H.ROAD, SHANSHINAGAR, _. BANGALORE-3580 B27. a' NOW REPRESE SNTED BY. rt nS. CHIEF LAW OFFICER a KSRTC, CENT RAL: OF FICE, SHANTHINAGAR, SARIGE, s ADANA BANGALORE- 560 027. * .. PETITIONER (BY SMTP. SHWETHA ANAN ID, ADV..) SRI, uM. VENKATESH, S/O2T.G-MILIDLAIAH, AGED ABOU rre41 YEARS, RESIDING AT: 'BIDAREMELE THOTA, ORR. BADAVANE, -- at IMB UR. . RESPONDENT BY SMT.S.B.LAKSHMI, ADV...) . THIS WRIT PETYTION IS FILED UNDER "ARTICLES 226 AND 227 OF THE CONSTYTTUTION OF "INDIA PRAYING TO QUASH THE IMPUGNED AWARD DATED 8.2.2011 PASSED BY THE PRESIDING OFFICER, HE ADDITIONAL LABOUR ARR KANIS DOIN. . COURT, BANGALORE IN 1.D.NO.1/08, PRODUCED VIDE ANNEXURE-F. IN W.P. NO.1801/2012 BETWEEN: MR.T.M.VENKATESH, S/O. T.G.MUDLAIAH, AGED ABOUT 44 YEARS, R/AT BIDAREMELE THOTA, o-- K.R.BADAVANE, ee TUMAKOORU. PETITIONER ©. (BY SMT.S.B.LAKSHMI, ADV..J-,. AND: THE CHIEF TRAFFIC MANA: GER 2 (ER :APFIC) KSRTC, CENTRAL OFFICES," K.H.ROAD, SHANTHINAGAR, as BENGALOORU-27., - oo _. RESPONDENT (BY SMT. SHWETHA ANAND. AD Dv. -- THIS wRIT PETIT ON" 1s FILED UNDER ARTICLES 226: AND 227 OF TIYE CONSTITUTION OF INDIA PRAYING. TO. ISSUE A-WRIT IN THE NATURE OF MODIFICA TION OF IWPUGNED AWARD DATED 8.2.2011 PASSED. IN-.I1R°NO.1/08 BY THE 3k» ADDITIONAL LABOUR: COURT, BENGALOORU VIDE ANNEXURE =A'.TO°. THE WRIT PETITION, BY GRANTING NOT ONLY REINSTATEMENT, DENIAL OOF 50%. WAGES, CONTINUITY OF SERVICE AS _ WELL. ALL "CONSEQUENTIAL BENEFITS, TREAT "THE ait HORIZED ABSENCE PERIOD AS DUTY PERIOD, .CONSEQUENTLY ALLOW THE CLAIM ST ATEMEN'T CF PETITIONER AS PRAYED FOR. "THESE WRIT PETITIONS COMING ON FOR PRELIMINARY ~, HEARING IN GROUP 'B' THIS DAY, THE COURT PASSED THE "POLLOWING: ORDER
In these two Writ Petitions, Karnataka State Road Transport Corporation {hereinafter referred to as 'Corporation' for the sake of brevity) and workman are assailing the Award passed by HI Additional Labour Court, Bangalore, in ID No. 1/2008 whereunder, the dispute raised by workman under Section 1Q"(4-4) "of, ., and order of dismissal was set aside with a punishment of reduction in basic pay fora period of five years without cumulative effect and holding that. workman is not entitled for any yearly increment during the period of absence and said" period is. to "he treated as These txvo- Writ 'Petitions being fled questioning the same award reisired 'to supra, they are taken up together for consideration and disposal by consent of pearing for parties and also in view a learned advocates ap of the, fact. that, records of Labour Court have been secured. _ "2. Petitioner in WP No.25422/2011 is referred to _as 'Corporation' and the petitioner in WP No.1801/2012 is referred to as 'workman'' for the sake -4-
3. Workman came to be transferred from Tumkur Division to Central Division, | Bangalore... ~-for administrative reasons on 9.9.2002 and in pursuance to *. the said order, workman was relieved irom : Pamikur Division on 19.9.2002. Though, workman was relieved on 19.9.2002, he did not report, to the place. where he was transferred namely, Central, Office, Bangalore. till 24.5.2004. In view of' the same, Ce Sipération issued Articles of Charges for remaining: unautix thotised absence from 19.9, 206% « = per Amesure a A' in Writ Petition No.25422/ 201 7 - » Domestic Enquiry came to be conducted and pefine Enquiry Authority, management did not tender any citdembe On account of which, Enquiry: Officer reSorded a finding that charges levelled against worknian was not proved. Disagreeing with the | views "of | Enquiry Officer, Disciplinary Authority .__ proceeded wi issue second Show Cause Notice enclosing the reas ons of Disciplinary Authority as to why findings os of Enquiry is not acceptable and calling for explanation fi rom the workman. On such reply being received same came to be considered by the Disci iplinary Authority ¢
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SONA ORS -5- by order dated 9.10.2006, Disciplinary Authority ordered for conducting fresh enquiry. Thereattex Domestic Enquiry was conducted and report came te be - submitted by the Enquiry Officer. on 26.3 2007 by holding that charges levelled against the workman was proved. Again second Show Cause Notice came to" be issued and after considering. the veply stibmitied by workman, order of disinissa! came, to be passed on 3.7.2007, vide" Annexur ce Coin Writ Petition No.25422/204 1 : Aggrieved by the 'said order, workman preferred .a a. claim petition u/ Ss. 10(4-A) of the Act before the Ill Adal Labour Court, Bangalore and Corporation after service. OF notice _appeared and filed counter statemient denying the- contentions raised in the claim statéinent, After. considering the evidence tendered by parties, Labouz Court held that Domestic Enquiry . conducted » was fair and proper and_ thereafter,
- : considered the arguments advanced by respective lea arhed advocates and by its award dated 8.2.2011 ". allowed the claim petition in part and up held the Bs contention of management that charges levelled against -6- workman was proved but reduced the punishment from dismissal to that of reduction in pay as already referred eo to hereinabove. Thus, Corporation to the extent. of.
ordering reinstatement and reducing "Battalion and workman has called in "question the fin ing of Labour Court holding that chaiies-held to have been proved against him as erroneous | in WP. N e.1801/2012.
4. It is + the contention of Smt.. Swetha Anand, learned counsel eppearing for Corporation that award of Labour: Court » su uffers S fro ont. 'several infirmities contending that Labour Court: havin ag held that misconduct has been pieved by-mariageément, it should not have invoked
- power a /s. 1A of the Act to modify the punishment as order, of punishment was not shockingly disproportionate to proved misconduct and it should not have "extended any sympathy only on the ground "that there was no past misconduct particularly when the workman has remained unauthorisedly absent for more than four years. She would also draw the attention of the court to Ex.M-20 Medical Certificate secured by the workman which is dated 16.6.2004 ie. obtained after two years of the date of alleged ailment, whereunder workman has claimed to be suffering-and © modify punishment by invoking section, 1 1A. 6f the ID Act, is erroneous and liable "to-be set aside. She would also draw the attention of the court, medical certificates produced by the workman to contend 'that it is at the out set inadmissible in evidence; the author of the said document was not examined 'and 'there was no other corroborating: evidence' to 'prove' the contents of the medical. preseriptions which | came to be marked as Ex.M-20, 21, and 22, ©x.D2, D3 and D1 respectively.
"5. Per-contra, Smt. S.B. Lakshmi, learned counsel appearing -for.workman would draw the attention of the court toe. tlie first Enquiry report Ex.M-11, wherein the = Enquiry "Officer had held that charges levelled against _.the 'workman was not proved and the reason of ill-
"Health given by the workman was accepted in view of the medical certificates produced by workman as | Ex.M4, D4, and as such she contends the finding of the . oe Labour Court holding that charges levelled against workman as proved in 2.4 enquiry is contrary to. the records and liable to be interfered.
6. She also elaborates' her: submission . by :
contending that Labour Court erred in not considering the mandatory provisions of Section 33 of the Industrial Disputes Act, which casts obligation on the part of the employer to seek direction /approval before proceeding to impose punisitment of dismissal since the demand of the workman was pending before the Labour Court in ID No. 48/ 2005 and the.order of dismissal is nonest in the eye of law: "Noth. Gonnsideration of this aspect according to her lias resulted in great prejudice to the 'Workman' and when the order of dismissal being nonest, 'all 'proceédings thereto is void abinitio. As such, by relying Lipo the judgment of the Hon'ble apex court, in > the case of Jaipur Zila Sahakari Bhoomi Vikas Bank ~ Btd-Vs. Ram Gopal Sharma and Others -- reported in "2002-1-LLJ SC 834, she prays for allowing of Writ Petition and for setting aside the order of Labour Court e& & -9- holding that charges levelled against petitioner as not proved.
7. In reply, Smt. Swetha Anand, contend. that .
Act, was never raised before the Labour Court and this court in exercise of supervisory jurisdiction should lay off its hands and should not examine such an issue since parties were not notified of this contention and no issue was framed by. Labour. Court and as such, contention 'with, regard ty: Section 33(2-B) of the Industrial Disputes. Act, raised by the workman cannot be entertained in. this 'writ 'Petition. Accordingly, she prays for allowing the Writ Petition filed by Corporation
- and "seeks .. dismissing the Writ Petition filed by workman...
8: ee ving heard the learned advocates appearing 'for parties and on perusal of the impugned order as also
- records secured form the Labour Court, it would emerge that on account of unauthorised absence of workman from 17.9.2002, Articles of Charges was issued on DOSSIER OO -10- 24.5.2004 after receiving the reply to Articles of Charges, Domestic Enquiry was ordered to be heid 'hy the Disciplinary Authority and an Enquiry report infact, -
was submitted on 12.8.2004, the said Enquiry report. .
has been marked before the Labour Court as" EX.MIi .
which would go to show tKai. charges levelled against workman was held not to be proved on. account of failure on the part of menagement, to tender any evidence. In this. background, Disciplinary Authority proposed ta disagree with the views of Enquiry Officer and said. disagreement. was..communicated to the workman also, | as "evidenced | from Ex.M-13A, and on receiving reply from'. workman, Disciplinary Authority
- fourié that, Enquiry report cannot be accepted since i inanagemeni. had not examined any witness and no material has Deen placed and as such, fresh enquiry "was ordered to be conducted. In the fresh enquiry that "came™. to be conducted, workman has appeared,
- participated and contested, cross examined the "witnesses. After considering the entire material on record, Enquiry Officer submitted a report on RR
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as per Ex.M-18 holding that charges levelled against workman are proved. Thereafter, Show Cause Notice was issued and Disciplinary Authority by order dated, ~ Before the Labour Court, issue regarding fairnéss. of Domestic Enquiry conducted »was framed anc Labour Court after recording evidence of both parties namely management and workman caine te.'a conclusion, that enquiry conductéd was fair and proper...
9. T hereatier, workinan has dot himself examined as ww- 1 and 'the "Labour "Court found on re- appreciation of evidence. thiat charges levelled against workman was: proved and the misconduct alleged by 'Tmanagement against workman was also proved namely inauuthorised absence. At this juncture, it would be of relevance to" notice the rival contentions raised by the = workmait. On the one hand, workman says that on account of ill health he could not attend to the duties : for the period from 2002 to 2004 and to establish this fact, he has made a feeble attempt before the Enquiry Officer namely he has produced prescriptions said to DEO SON RI ROO -12- have issued by the doctors which came to be marked in the Domestic Enquiry as Ex.M.20 and 21, and. 22 (marked as Ex.D2, D3 and Dl respectively "before. Labour Court). Admittedly, : these » prescriptions - produced were photo copies no explanation whatsoevei . was forthcoming as to why the originel documents were not produced. Be that as. if may; no other corroborating evidence like: miedlical bills, labaratory reports, X-rays if any, were produced: by workman in Domestic Enquiry. oF before Labour Court to establish this fact... If the Wworkman-had taken treatment as stated in Ex.M-20, M21 "and 22, 'the medical certificates should have. been . reflected as such. However, the medical certificate which is produced as per Ex.M-12
- which. was issued on 16.6.2004 is contrary to Ex.M-20 to M-22 since the ailments which the workman claimed . . to have been suffering from, according to the medical wertificates, was suspected Tuberculosis, abdomen, | "Gastritis, Jaundice and Ascites and there is no nexus to diseases found in medical certificate and prescriptions.
Admittedly, the doctor who has treated the workman -13- has not been examined either in the Domestic Enquiry or before the Labour Court. Even otherwise, according to the medical certificate Ex.M-12, workman. was fit to. to report to duty either on the said 'date or any other . date subsequent thereto ta 'establish his. bonafides. Particularly when the Articles 'of Chargés have been issued on 24.5.2004 "and when "the workman has received the same he did not reply to it. Workman was aware even as on 25 5.2004 he was proceeded for being unauthorised absence and he contd have submitted the reply by enclosing either these prescriptions or medical certificate. ~-
- _ 10. Ht is to be noticed that workman came to be transferred from Tumkur Division to Bangalore Division _on 99.2002 and at no point of time he has reported to > the Central Office, Bangalore to the place at which he "was 'transferred. Though it is contended that fact of a transfer has not been intimated to the workman, the same does not stand to any reason inasmuch as in the Articles of Charges itself it has been mentioned that he -14- was relieved from Tumkur Division, which means he was fully aware of transfer to Bangalore Division and-as has been observed in the first Enquiry report. itself, -
learned counsel appearing for workrian that finding 6° . Labour Court with regard to-misconduct having been held as proved to be erroneotts, cannot -be accepted. Entire evidence which "was 7 available con record which had been tendered "by 'the. parties "came to be reappreciated by.-Labour. Court "and on such re- appreciation | particularly. with. reference to Ex.M-12 it has been heid that here was no justifiable cause for workman -- ive) absent 'hirhself from duty. The said . findings does not call dor interference by this court since
- it-does not suffer from any infirmity whatsoever. Hence, contention of the learned counsel for the workman .stands.rejected.
'll. With regard to the issue relating to applicability of Section 33(2)(b) of the Industrial Disputes Act, is concerned, there cannot be any dispute with regard to proposition of law laid down by -15- the Hon'ble apex court in the judgment referred to supra. As to whether said proposition is applicable 40 the facts on hand is the one which reauttes. Ye-be.
considered in view of the contentions now. faised.
12. Though Smt. $.B. Lakshini pas made ari effort | to contend that such a ground was raised belore Labour Court, I do not find the: said conten tion to t be factually correct. On the other. + hand, 'penisdl of the entire records of Labour. © C ourt including claim petition would go to show that such a "contention hh has not been raised. In the absence of contention having been raised, this court in' exercise of 'Supervisory jurisdiction cannot examitie 'the said 'iss: sue. in the absence of the same having "beers, raised before Labour Court. Even . otherwise in the absence of any material being placed by = the petitiorret-workman that workman was a member of | > the 'Union which has raised the dispute in ID ; hy ates and any order or award passed therein , would enure to the benefit of the present workman, such contention cannot be entertained, inasmuch as there being no plea, no issue and no evidence adduced ee
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by the parties. As such, this court is not inclined to exercise supervisory jurisdiction to consider the Drayer made by the workman in this regard. Accordingly. the.
second contention raised by the workman also-fails.
13. In the result, | pass the fllowing:
ORDER (1) Writ Petition: No. 2542/20 vee _is hereby allowed.
(2) Award of the Labour Court 'passed in ID No.1 / /2008. dated 8.2. 201i in so far as modifying the. punishment imposed by * Discip linary Authority is hereby quashed.
"and : the'. _ punishment imposed by Disciplinary Autl: ority dated 3.7.2007 is | hereby réstored.
». (3) Consequently and for the reasons aforesaid, Writ Petition No.1801/2012 sia ndé dismissed.
ai t No costs.