Karnataka High Court
Karnataka State Road Transport ... vs Suresh Naidu T. N on 12 January, 2022
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
WRIT PETITION NO.16428 OF 2017 (L-KSRTC)
BETWEEN:
KARNATAKA STATE ROAD
TRANSPORT CORPORATION
MYSOR RURAL DIVISION
MYSORE BY ITS
DIVISIONAL CONTROLLER
REPRESENTED BY ITS
CHIEF LAW OFFICER ... PETITIONER
(BY SMT.H.R.RENUKA, ADVOCATE)
AND:
SURESH NAIDU T.N.
S/O.NARAYANASWAMY.Y
AGED ABOUT 50 YEARS
R/O.D.NO.226, GANDHINAGAR
MURANADU
MADIKERI TALUK AND DISTRICT - 571 201.
... RESPONDENT
(SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING
CERTAIN RELIEFS.
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THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Smt.H.R.Renuka, learned counsel for petitioner has appeared through video conferencing.
2. The facts are briefly stated as under:-
It is stated that the respondent is a Driver in the establishment of the Corporation. He remained absent from duty unauthorizedly from 30.11.2011. On the basis of the report dated 10.12.2011 submitted by the Depot Manager, he was issued with the call letter dated 28.01.2012 calling upon him to report to duty. As the call letter did not evoke any response from the Workman, he was issued with Articles of charge dated 22.02.2012. The respondent submitted his reply to the Articles of charge.
The respondent was subjected to Disciplinary proceedings, though he was present for the preliminary enquiry, later he did not choose to participate in the enquiry. Hence, 3 after providing sufficient opportunity to participate in the enquiry, the Enquiry Officer proceeded with the enquiry by placing him ex parte.
The Enquiry Officer after conducting a detailed enquiry, submitted his findings holding that charges are proved.
The respondent was issued with a show cause notice dated 09.12.2013 along with the findings of the Enquiry Officer. The respondent did not submit his reply to the show cause notice. The Disciplinary Authority accepted the findings of the Enquiry Officer. The past records of the respondent were considered, it was seen that he was involved in 14 cases of unauthorized absence. The Disciplinary Authority taking into consideration the present mis-conduct as also his past record, dismissed the petitioner from service vide order dated 28.03.2014.
The respondent challenged the order of dismissal by filing a claim petition under Section 10(4-A) of the 4 Industrial Disputes Act, 1947 (for short 'the I.D. Act') in IID No.13/2014 before the Labour Court, Mysore. The Corporation upon receipt of notice filed its counter statement.
The Corporation examined one witness in support of its case and produced sixteen document which were marked as exhibits M1 to M16, while the Workman examined himself and produced two documents as Exs.W1 to W2. The Labour Court vide order dated 07.03.2016 held that the domestic enquiry as fair and proper. The Labour Court on an adjudication of the dispute held that the order of dismissal is harsh and directed reinstatement of the Workman with continuity of service, consequential benefits and with 30% of the back wages.
Under these circumstances, the petitioner - Corporation having left with no other efficacious and alternative remedy has filed this writ petition under Articles 226 and 227 of the Constitution of India. 5
3. Smt.H.R.Renuka, learned counsel for petitioner submits that the award of Labour Court is erroneous, replete with several mis-directions and errors and the same is apparent on the face of the record.
Next, she submitted that the respondent Workman remained absent from duty from 30.11.2011 till 01.03.2012. He was issued with the call letter calling upon him to report to duty which did not evoke any response. Hence, he was issued with the Articles of charge. The fact that he did not submit leave application is accepted by the Labour Court. The respondent submitted a Medical Certificate dated 28.02.2012 which goes to show that he has not secured Medical Certificate till 28.02.2012 thereby, he had made no attempt to submit leave application before remaining absent from the duty.
A further submission was made that the Medical Certificate does not disclose that he was inpatient, therefore, it was possible for the respondent to intimate his Superior Officer if he was suffering from illness seeking 6 sanction of leave. The call letter issued to him was not responded. Therefore, the charge of unauthorized absence of Workman stood established.
Counsel submitted that the respondent though was provided with sufficient opportunity to put forth his defense during the enquiry, he did not choose to participate after the preliminary enquiry. The respondent did not even cross examine the Management witness, therefore, the evidence of Management witness remained unrebutted. The respondent did not even submit his defense statement, reply to the second show cause notice, therefore, the Enquiry Officer conducted enquiry by placing the Workman ex parte, the charges were held to be proved. The Labour Court has recorded a finding that Workman remained absent from duty without intimation, he has a past history of 14 cases, he did not reform despite providing opportunity. He has not submitted the leave application; hence, the charge of unauthorized absence is proved. But, while considering the quantum of 7 punishment under Section 11-A of the ID Act, the Labour Court placed reliance on two orders of punishment passed in the case of one - Abdul Samad, who remained absent for a period of 2 years 7 months.
Counsel vehemently submitted that the order of punishment passed in Abdul Samad's case is by the Disciplinary Authority of different Corporation. She also submitted that the order of punishment varies from case to case.
It is also submitted that the Labour Court has erroneously held that the respondent is aged 48 years therefore, he was required to maintain his family, the order of dismissal is harsh as the respondent was unwell during the period of absence. The Labour Court failed to notice that no supporting documents were produced along with the Medical Certificate, therefore the same could not have been believed. The reasoning for grant of 30% back wages is erroneous and unsustainable. The award of back wages to an employee of proved misconduct is contrary to 8 the decision of the Apex Court reported in J K Synthetic's case. The award of back wages has the effect of placing a premium on misconduct.
Lastly, counsel submitted that the Workman remained absent from duty unauthorizedly, hence the dismissal being just and proper punishment, the same could not have been interfered with by the Labour Court. The disciplinary measures-initiated against an errant employee could not have been termed as harsh or victimization by the Labour Court. Counsel therefore, submitted that the award may be set aside and the writ petition may be allowed.
4. Heard learned counsel for petitioner and perused the Annexures with care.
5. The short point which requires consideration is whether the Labour Court justified in setting aside the order of dismissal?
The facts have been sufficiently stated. 9 It is not in dispute that the respondent was appointed as a Driver in the Corporation. He remained absent from duty unauthorizedly from 30.11.2011 to 01.03.2012. The Articles of charges were issued calling upon him to submit explanation. The Corporation appointed Enquiry Officer. After, the preliminary enquiry, the Workman did not choose to appear. The Authority has referred to the past history record of Workman.
The history sheet is referred in the order of dismissal. The same is reiterated as under:-
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1 11.09.03 05.11.03 56 JZÀÑjPÉ ¤qÀ¯ÁVzÉ
ªÁ.ªÉÃ.§rÛAiÀÄ£ÀÄß 01 ªÀµÀð CªÀ¢üUÉ 2 06.02.04 07.04.04 61 ¸ÀAavÀ «®èzÉ ªÀÄÄAzÀÆrzÉ 3 12.04.06 18.05.06 37 gÀeÉ ªÀÄAdÆgÁw ªÀÄÆ® ªÉÃvÀ£ÀzÀ 01 ºÀAvÀªÀ£ÀÄß 02 4 01.03.05 05.06.05 97 ªÀµÀðUÀ¼À CªÀ¢üUÉ PÀqÀvÀUÆ É ½¸ÀĪÀAvÉ DzÉò¹zÉ 07 ¢£ÀUÀ¼À ªÉãÀªÀ£ÀÄß 5 23.08.09 09.09.09 18 ªÀÄÄjzÀÄPÉƼÀî®Ä DzÉò¸ÀzÉ ªÀÄÆ® ªÉÃvÀ£ÀzÀ 01 ºÀAvÀªÀ£ÀÄß 03 6 08.04.10 25.04.10 18 wAUÀ¼À PÁ® ¸ÀAavÀ gÀºÀvÀªÁV PɼÀºÀAvÀPÉÌ E½¹zÉ ªÀÄÆ® ªÉÃvÀ£ÀzÀ 01 ºÀAvÀªÀ£ÀÄß 01 7 28.08.10 23.09.10 27 ªÀµÀðUÀ¼À CªÀ¢üUÉ PÀqÀvÀUÆ É ½¸ÀĪÀAvÉ 10 DzÉò¹zÉ ªÀÄÆ® ªÉÃvÀ£ÀzÀ 02 ºÀAvÀªÀ£ÀÄß 02 8 16.04.09 5.06.09 51 ªÀµÀðUÀ¼À CªÀ¢üUÉ PÀqÀvÀUÆÉ ½¸ÀĪÀAvÉ DzÉò¹zÉ ªÀÄÄA§gÀĪÀ ªÁ.ªÉÃ.§ 06 wAUÀ¼ÄÀ 9 24.12.10 24.02.11 62 PÁ® vÉqɬÄrAiÀÄ®Ä DzÉò¹zÉ 10 08.02.10 27.02.10 20 gÀÆ.2000/-£ÀÄß PÀqÀvÀUÉƽ¹zÉ ªÀÄÆ® ªÉÃvÀ£ÀzÀ 02 ºÀAvÀªÀ£ÄÀ ß 01 11 04.06.10 26.08.10 84 ªÀµÀðUÀ¼À PÁ® PɼÀºÀAvÀPÌÉ E½¹zÉ 12 30.11.11 01.03.12 92 ¥Àæ¸ÄÀ ÛvÀ ¥ÀæPg À Àt 13 24.03.12 07.07.12 106 «ZÁgÀuÉ ºÀAvÀzÀ°ègÀÄvÀÛzÉ 14 11.03.13 19.08.13 162 «ZÁgÀuÉ ºÀAvÀzÀ°ègÀÄvÀÛzÉ The Enquiry Officer conducted the domestic Enquiry and found that the charges as proved and submitted his report.
As could be seen from the history sheet, the Workman was involved in proved unauthorized absent cases. He was vitiated with minor punishments on several occasions. Disciplinary Authority passed punishment order, thereby dismissed the Workman from service on 28.03.2014.
The respondent-Workman raised a dispute under Section 10(4-A) of the I.D. Act.
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The respondent-Workman contended that his health condition was not good from 30.11.2011 to 01.03.2012 and he reported about his illness to the Depot Manager orally and took his permission to go for treatment and also sent a leave letter and Medical Fitness Certificate to the Depot Manager.
It is also contended that the Depot Manager instead of sanctioning leave, submitted a false report stating that he remained absent unauthorizedly.
The main contention urged on behalf of respondent- Workman is that he submitted the leave application. The Labour Court considering the material on record concluded that no documents are produced by the Workman to show that he applied for leave. The Court also observed that the Workman could have taken proper steps to summon the leave application from the Corporation. But he did not choose to do so.
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It is significant to note that the Workman remained unauthorizedly absent without leave hence, Articles of Charges was issued calling upon him to submit explanation. The Corporation appointed Enquiry Officer. Despite services of enquiry notice, the Workman remained absent for the enquiry. The Enquiry Officer conducted the Domestic Enquiry and found that the charges as proved and submitted his Report. The second show cause notice was issued to the Workman. The Disciplinary Authority passed punishment order, thereby dismissed the Workman from service.
As already noted above, the petitioner remained unauthorizedly absent from 30.11.2011 to 01.03.2012. Thereafter, he once again remained absent from 24.03.2012 to 07.07.2012 and again from 11.03.2013 to 19.08.2013. It is noticed that the Workman remained unauthorizedly absent on 14 occasions. The Workman in his cross-examination admitted that in earlier 14 occasions, he had remained absent from duty and the 13 Corporation imposed minor punishments. Considering the gravity of misconduct and the past records, the Corporation dismissed the Workman from service on 28.03.2014.
While addressing argument, Smt.H.R.Renuka learned counsel strenuously urged that the Labour Court set aside the order of dismissal placing reliance on the order of punishment passed by the Disciplinary Authority of different Corporation. The reliance on an order of punishment by a different Corporation is illegal and unjust. It is also submitted that the Workman is habitual absentee with past 14 misconduct cases.
I have considered the submission with care and perused the order of the Labour Court with care. It is true that the Labour Court has placed reliance on a punishment order in relation to one Workman by name Abdul Samad who belonged to a different Corporation altogether. 14
It is perhaps well to observe that the order of punishment depends upon the gravity of misconduct. In the present case, the Workman has not placed any material on record to show that under what circumstances, the punishment was imposed to Abdul Samad. I may venture to say that even the Labour Court also failed to verify under what circumstances the order of punishment was imposed. Hence, placing reliance on the order of punishment is totally unjust.
It is needless to say that the employer shall consider the gravity of the misconduct, the previous record of the employee, if any, and any other extenuating or aggravating circumstances that may exist. In imposing the punishment, such requirements have necessarily to be complied with. It is significant to note that if the order of dismissal is based on the charges proved against the delinquent in the domestic enquiry, the fact that the past record of the Workman was clean would be of no consequence, but on the other hand, if the punishing 15 Authority relies on the past record of the delinquent, for imposing punishment, it is incumbent on it to give him an opportunity to offer other explanation regarding such record.
In the present case, after the preliminary enquiry, the Workman did not participate in the proceedings. He did not even submit his defense statement, reply to the show cause notice. Without obtaining prior permission from the Depot Manager or from the concerned Superior Officer, the Workman remained absent for duty. The absence has caused lot of inconvenience to the Corporation to run day-to-day work. The Workman is a habitual absentee and the same is evident from the history sheet.
In my opinion, the Labour Court has failed to have regard to relevant considerations and disregarded relevant matters. As already noted above, in the present case, the petitioner - Workman remained unauthorizedly absent on 14 occasions. The leave letter was not given and no medical documents were produced to show that he was 16 unwell. Hence, in my considered view, the Labour Court has erred in setting aside the order of dismissal.
It is needless to observe that the Workman was habitual absentee. The disciplinary measures initiated against an errant employee cannot be termed as harsh or victimization of unfair labour practice.
6. In the result, the writ petition is allowed. The order of dismissal dated 28.03.2014 (Annexure-F) passed by the Disciplinary Authority in ¸ÀA:PÀgÁ¸Á:ªÉÄÊUÁæ«:¹:UÉÊ.ºÁ/966/11/8104/13-14 deserves to be confirmed and it is confirmed and the award dated 07.11.2016 passed by the Labour Court, Mysore in I.I.D.No.13/2014 (Annexure -K) is set aside.
Sd/-
JUDGE VMB