Karnataka High Court
Sri H N Gangadharaiah vs South Western Railways on 3 September, 2012
Author: K.L.Manjunath
Bench: K.L.Manjunath
1
W.A. No.4230/2009 C/w W.A.
Nos.3312/2009 & 3311/2009 (L-TER)
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 03RD DAY OF SEPTEMBER 2012
PRESENT
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR. JUSTICE V.SURI APPA RAO
W.A. No.4230/2009 C/w
W.A. Nos.3312/2009 & 3311/2009 (L-TER)
In W.A. No. 4230/2009 :
BETWEEN :
SRI H N GANGADHARAIAH
S/O.LATE NANJAPPA
AGED ABOUT 43 YEARS,
CRANE OPERATOR/DRIVER
SOUTHERN RAILWAYS
DIVISIONAL OFFICE, MECHANICAL BRANCH
BANGALORE-23,
(NOW UNLAWFULLY REMOVED FROM
SERVICE) & R/AT NO.36,
CHAMUNDESHWARI NAGAR,
LAGGERE EXTENSION,
GANAPATHI NAGAR
BANGALORE - 560 058. ...APPELLANT
(By SRI. M S ANANDARAMU & ASSOCIATES, ADVS.)
AND :
SOUTH WESTERN RAILWAYS
(FORMERLY KNOWN AS
2
W.A. No.4230/2009 C/w W.A.
Nos.3312/2009 & 3311/2009 (L-TER)
SOUTHERN RAILWAYS),
PERSONNEL BRANCH,
BANGALORE - 560 023,
REP BY ITS DIVISIONAL
PERSONNEL OFFICER. ...RESPONDENT
(By SRI. N.S. SANJAY GOWDA, ADV.)
This Writ Appeal is filed under Section 4 of the Karnataka
High Court Act, 1961, prays that this Hon'ble Court be pleased to set
aside the Order dated 02.07.2009 made in W.P. No.9294/2009 passed
by the learned Single Judge (only in so far as it relates to denial of
monitory benefits from 01.03.1997 to till date) and to allow the writ
petition filed by the appellant, in its entirety granting all the
consequential benefits to the appellant.
In W.A. No.3312/2009 :
BETWEEN :
SOUTH WESTERN RAILWAYS
(FORMERLY KNOWN AS
SOUTHERN RAILWAYS)
REPRESENTED BY ITS
DIVISIONAL PERSONNEL
OFFICER, PERSONNEL BRANCH
BANGALORE-560 023. ...APPELLANT
(By SRI. N S SANJAY GOWDA, ADV.)
AND :
SRI H N GANGADHARAIAH
NO 36, CHAMUNDESHWARI NAGAR
LAGGERE EXTENSION,
GANAPATHI NAGAR
BANGALORE-560 058. ...RESPONDENT
(By SRI. M S ANANDARAMU & ASSOCIATES, ADVS.)
3
W.A. No.4230/2009 C/w W.A.
Nos.3312/2009 & 3311/2009 (L-TER)
This Writ Appeal is filed under Section 4 of the Karnataka
High Court Act, prays that this Hon'ble Court be pleased to allow this
appeal and consequently set aside the Judgment and Order dated 2 nd
July 2009 in W.P. No. 10733/2008 passed by the learned Single
Judge.
In WA No.3311/2009 :
BETWEEN :
SOUTH WESTERN RAILWAYS
(FORMERLY KNOWN AS
SOUTHERN RAILWAYS)
REPRESENTED BY ITS
DIVISIONAL PERSONNEL OFFICER
PERSONNEL BRANCH
BANGALORE-560023. ...APPELLANT
(By Sri. N S SANJAY GOWDA, ADV.)
AND :
SRI H N GANGADHARAIAH
NO.36, CHAMUNDIESHWARI NAGAR
LAGGERE EXTENSION
GANAPATHY NAGAR
BANGALORE-560058. ...RESPONDENT
(By SRI. M S ANANDARAMU & ASSOCIATES, ADVS.)
This Writ Appeal is filed under Section 4 of the Karnataka
High Court Act, 1961, prays that this Hon'ble Court be pleased to
allow this appeal thereby setting aside the Judgment and order dated
2nd July 2009 in W.P. No. 9294/2009 passed by the learned Single
Judge and consequently dismiss the writ petition filed by the
respondent.
These Writ Appeals coming on for Preliminary Hearing this
4
W.A. No.4230/2009 C/w W.A.
Nos.3312/2009 & 3311/2009 (L-TER)
day, V.SURI APPA RAO. J., delivered the following :
JUDGMENT
Writ Appeal No. 4230/2009 is filed challenging the order dated 2nd July 2009 passed by the learned Single Judge in W.P. Nos.10733/2008 C/w 9294/2009 by the Employee, W.A. Nos. 3312/2009 and 3311/2009 are filed by the South Western Railways against the common order passed by the learned Single Judge.
2. For the sake of convenience, the parties are referred to as 'Employee' and 'Employer'.
3. The relevant facts leading to filing of these appeals are as follows :
The employee - Gangadharaiah joined the service as Khalasi in the establishment of South Western Railways. He was promoted as Crane Driver in the year 1993. He sustained with an employment injury during the course of employment and on 21.04.1995 he underwent surgery to his fore-arm and he was admitted to Railway Hospital as inpatient. The Officers of the South Western Railways conducted enquiry for his unauthorised absence and dismissed from service on 01.03.1997. An Industrial Dispute was raised on the file 5 W.A. No.4230/2009 C/w W.A. Nos.3312/2009 & 3311/2009 (L-TER) of the Regional Labour Commissioner at Bangalore. The matter was adjudicated by the Industrial Tribunal. The Labour Court passed an award dated 08.04.2008 directing the Management to reinstate the workman into service without back wages and without continuity of service and other consequential benefits. Being aggrieved by the order of reinstatement of the workman, the Management filed Writ Petition and the employee also filed writ petition being aggrieved of the denial of back wages and continuity of service and other benefits.
4. The learned Single Judge modified the award passed by the Labour Court and directed the Management to reinstate the workman within two months and the writ petition filed by the Management was dismissed, the writ petition filed by the workman is allowed in part. Being aggrieved by the order passed by the learned Single Judge, the Management and the Workman filed these writ appeals.
5. We have heard the learned Counsel for the parties.
6. It is an admitted fact that the employee met with an accident during the course of his employment and underwent surgery for his forearm. On account of his unauthorised absence, an enquiry was initiated and in the enquiry that the charges levelled against the 6 W.A. No.4230/2009 C/w W.A. Nos.3312/2009 & 3311/2009 (L-TER) employee are proved and he was dismissed from service. The learned Counsel for the employee contended that on account of the injury and due to surgery to his forearm he could not attend his duty. His absence from duty is not a willful and he has submitted leave application and the same was not considered by the Management.
7. The learned Counsel for the Management submitted that the employee has not submitted any leave application, he remained unauthorised absence for a period of eight months without any justification though he was discharged from the Hospital. The Tribunal after considering the entire evidence adduced by both the parties found that the employee had put in nearly 17 years of service and by the time of dismissal he has produced documentary evidence before the Labour Court to prove that he had offered for leave along with Medical Certificate, but the same was not considered by the Management. Therefore, the Labour Court rightly came to the conclusion that though the employee was guilty of unauthorised absence the workman/employee remained absent as he suffered accidental injury to his left forearm. On account of which he could not attend to his normal duty as was attending to his duty prior to the 7 W.A. No.4230/2009 C/w W.A. Nos.3312/2009 & 3311/2009 (L-TER) accident. On account of the injuries to his left forearm and consequent operation and treatment, he has suffered from some other ailment. Therefore, on the ground of ill-health he could not attend to his duties for long time. Considering the evidence of the workman/employee, the Presiding Officer of the Labour Court passed the award for reinstatement of the employee.
8. The Management contended that on account of long period of eight months absence, he is not entitled for reinstatement.
9. The learned Single Judge while appreciating the evidence of the parties and the ailment suffered by the employee, which caused during the course of employment found that the long period of absence is neither willful nor wanton and therefore, considering the length of service, passed the order for reinstatement. The fact that the workman sustained injuries to his left forearm during the course of his employment and underwent operation and he has developed some other ailment due to operation and injury not denied by the Employer. Considering the nature of injuries sustained by him and the other factors, the Labour Court and the learned Single Judge are justified in passing the order directing the South Western Railways to reinstate 8 W.A. No.4230/2009 C/w W.A. Nos.3312/2009 & 3311/2009 (L-TER) the employee without back wages, we are therefore see no grounds to interfere with the order passed by the learned Single Judge.
10. Accordingly, the appeals filed by the South Western Railways as well as the employee are dismissed.
Sd/-
JUDGE.
Sd/-
JUDGE.
Rbv