Karnataka High Court
Shri. Dastigir S/O Mugatsab Mokashi vs The Divisional Controller on 22 January, 2013
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 22 N D DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
WRIT PETITION No.66504 OF 2012 [L-KS RTC]
BETWEEN:
SHRI.DASTIGIR S/O MUGATSAB MOKASHI
SINCE DECEASED BY HIS
LEGAL REPRESENTATIVES:
1. BIBIJAN W/O DASTIGIR MOKASHI
AGE: 50 YEARS, OCC: HOUSEWIFE,
2. JAFARSHARIF S/O DASTIGIR MOKASHI
AGE: 30 YEARS, OCC: PRIVATE DRIVER
3. REHAMUTULLA S/O DASTIGIR MOKASHI
AGE: 28 YEARS, OCC: STUDENT
4. RAJIYABEGAUM W/O GULAMHUSEN MISHRIKOTI
AGE: 26 YEARS, OCC: HOUSEWIFE
5. ANWAR S/O DASTIGIR MOKASHI
AGE: 24 YEARS, OCC: LABOUR
ALL ARE R/O. AT POST: UGARKHOD,
TQ: BAILHONGAL, DIST: BELGAUM
... PETITIONERS
(By Sri. S K HEGDE ADV.)
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AND:
THE DIVISIONAL CONTROLLER
NORTH WEST KARNATAKA ROAD TRANSPORT
COPORATION, HUBLI DIVISION,
HUBLI
... RESPONDENT
THIS WRIT PETITION IS FILED UNDER
ARTICLES 226 & 227 OF CONSTITUTION OF INDIA
PRAYING TO:
I. QUASH THE AWARD PASSED BY THE LABOUR
COURT, HUBLI IN KID. NO.23/2007
DATED:06/07/2010 AS PER ANNEXURE-D.
II. DIRECT THE RESPONDENT TO PAY FULL BACK
WAGES AND TO EXTEND CONTINUITY OF
SERVICE AND CONSEQUENTIAL BENEFITS TO
THE PETITIONERS.
This Writ Petition coming for preliminary
hearing this day, the Court made the following:
O R D E R
The petitioner--Dastigiri S/o.Mugatasab Mokashi, joined service of respondent-Corporation as a conductor, on 21.04.1978. While he was working as a Conductor at Hubli Depot, the Depot Manager, on 30.12.2004, submitted a report to the :3: disciplinary authority that the workman has remained unauthorisedly absent from duty, since 21.11.2004. A call letter was sent to the workman to report for duty immediately and the workman did not rejoin the duty. Articles of charge dated 25.04.2005 was served by the respondent on the workman with regard to the misconduct of unauthorised absence from duty. By an order dated 20.05.2005, the disciplinary authority appointed an enquiry officer. Disciplinary enquiry having been held and a report having been submitted, holding the charge of misconduct as established, copy of the enquiry report with past history sheet of the workman was served on the workman, along with a show-cause notice dated 23.08.2005. No explanation was submitted by the workman. The disciplinary authority, upon consideration of the said enquiry report, found the workman guilty of charge made in the articles of :4: charge dated 25.04.2005 and an order of dismissal from service was passed on 14.09.2006. The order was passed, by taking into consideration the period of absence of workman, result of enquiry proceedings and also punishments imposed earlier for similar acts of unauthorised absence. The said order is a detailed one.
2. Feeling aggrieved, the workman filed a claim statement under Section 10(4)(A) o f the Industrial Disputes Act, 1947 (for short 'the Act') in the Labour Court at Hubli, which was registered as KID:23/2007. The Management filed counter statement. Based on the pleadings, three issues were raised. Issue No.1 was treated as a preliminary issue. No evidence was adduced by both parties. However, by consent 19 documents produced by the Management was marked as Exs.M-1 to 19. Considering the contentions urged :5: by the learned advocates appearing for the parties, by an order dated 25.03.2009, issue No.1 was answered in the affirmative.
3. The workman subsequently filed his affidavit evidence and was examined as WW-1. The Management did not adduce any evidence. After hearing the arguments addressed by the learned advocates for the parties, the Labour Court held that the findings of the enquiry officer is in accordance with evidence produced and that there is no material to interfere with the findings of the enquiry officer. The history sheet of the workman, marked as Ex.M-16, was noticed and it was found that he was involved in 10 cases of absentism during the period from 2002 to 2004. It was found that the workman has failed to justify his absentism by producing any acceptable evidence either before the enquiry officer or :6: before the Labour Court. As a result, the Labour Court found that the findings recorded by enquiry officer, with which the disciplinary authority agreed, were neither perverse nor illegal.
4. The Labour Court, considering the record, did not find justification to interfere with the order of dismissal passed by the Management. As a result, the claim statement was dismissed by an award dated 06.07.2010.
5. The workman having died on 28.02.2011, his wife and children have filed this writ petition to quash the award passed by the Labour Court, as at Annexure 'D' and to direct the Management to pay full backwages and extend continuity of service with consequential benefits to them.
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6. Sri S.K.Hegde, learned advocate appearing for the petitioners, contended that the enquiry officer, disciplinary authority and the Labour Court, have lost sight of the relevant materials and the findings recorded against the workman having no evidentiary support, are perverse and illegal. Alternatively, the misconduct being only absence from duty, which was on account of the workman being unwell, the Labour Court is not justified in not exercising its power under Section 11A of the Act. Learned advocate submitted that, in the facts and circumstances of the case, Labour Court has failed to consider the material in the correct perspective and hence, interference with the impugned award and order is warranted.
7. Perused the writ record. The point for consideration is, whether the impugned award and order are vitiated and warrant any interference? :8:
8. There is no denial of the fact that the workman had absented for duty without submitting a leave application and/or obtaining prior permission with effect from 21.11.2004 and did not join duty, despite call letters being issued. After issue of article of charge, a disciplinary enquiry was held. The workman was provided with reasonable opportunity of hearing and the enquiry officer submitted the report, holding the workman guilty of charge leveled against him. The disciplinary authority furnished the copy of the enquiry report and also the past history sheet of the workman along with show-cause notice dated 23.08.2005, to which there was no reply. The disciplinary authority has passed a detailed order dated 14.09.2006, as at Annexure 'A' and dismissed the workman from service for the proved misconduct of unauthorised absence. In :9: view of the plea raised that the disciplinary enquiry held was not fair and proper, issue No.1 was raised with regard to fairness and propriety of the disciplinary enquiry held by the management. The workman failed to adduce any evidence. The documents produced by the management was marked by consent as Exs.M-1 to 19. By an order dated 25.03.2009, said issue was answered in favour of management.
9. The evidence having been adduced by the workman, thereafter, having been considered and there being no dispute that the workman had remained absent from 21.11.2004 to 20.04.2005 unauthorisedly and the alleged absence due to 'Jaundice' having not been established by production of any credible evidence, the Labour Court has found that the findings of the enquiry officer are neither perverse nor illegal. Ex.M-16-- : 10 : past history sheet shows that, during 2002-04, the workman had unauthorisedly remained absent on ten occasions and he was imposed with minor punishments. Record shows that the workman was a habitual absentee. There being no dispute with regard to his unauthorised absence, as alleged in the article of charge, the finding of guilt recorded by the enquiry officer, with which the disciplinary authority and the Labour Court have concurred, cannot be found fault with. The absence from duty was for a long period and the workman has past history of unauthorised absence.
10. Keeping in view the facts and circumstances of the case, the Labour Court is justified in not invoking its power under Section 11A of the Act, as the workman did not absent for the first time and the opportunities provided to him by imposing minor punishments for earlier : 11 : unauthorised absence did not bring any improvement in his conduct. The respondent/Corporation cannot afford to have employees who frequently remain absent unauthorisedly, as the Corporation cannot run its service efficiently and that the travelling public would suffer inconvenience. The punishment imposed by the respondent, keeping in view Ex.M- 16, has rightly not been interfered with by the Labour Court. The impugned punishment order and award are not vitiated.
In the result, the petition being devoid of merit, is rejected.
SD/-
JUDGE RK/-