Karnataka High Court
Sri N Pushpakanthan vs The Sr Divisional Mechanical Engineer on 21 February, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
MiGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 2187 DAY OF FEBRUARY 20% 2. BEFORE a THE HON'BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NO. cae ae ie TEN BETWEEN: Sri. N. Pushpakanthan S/o. Sri Natesan Aged about 56 years eo R/a. No.24, E.No.4% Street, Oki Madras Road, Ulsoor, 2. Bangalore 560 C08. -- "oo BETYTIONER (By Sri. V.S. Naik, Aavooate = AND: The Sr. Divisional Mechanical Engineer Southern Railway, Divisional Office Mecnenical Branch, eo, Bangalore 560 023. . RESPONDENT
"(By Sri, Raghupathy, Advocate) 'THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA WITH A . PRAYER TO QUASH THE AWARD DATED 14.09.2010 . PASSED BY THE CENTRAL GOVERNMENT ~ INDUSTRIAL TRIBUNAL, BANGALORE IN CR.
NO.32/ 2003, THE CERTIFIED COPY OF WHICH IS PRODUCED AND MARKED AS ANNEXURE-D, BY WHICH THE CLAIM OF THE PETITIONER WAS REJECTED WHICH IS ARBITRARY, ILLEGAL AND UNTENABLE.
"OF KARNATAKA HIGH COURT-OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR Padus Be THIS PETITION COMING ON FOR PRELIMINARY HEARING 'B' GROUP THIS DAY THE COURT. MADE THE FOLLOWING:
Petitioner-workman seeke for quashing oof the : award dated 14.09.2010 passed by | the Central Government Industrial Tribunal, Bangelore (hereinafter | referred to as "Carr" for - sake: of brevity) in C.R, No.32/2003 dated -- 14, G9, 2010 _(Annexure-D). Though matter ia listed for By Group by consent of learned Adweate it is token up for Final Disposal.
2. vend learned advocates appearing for both parties. Perused the imupugned order as also Annexures appended to the writ t petition,
3. Sev S. Naik. learned counsel appearing for petitioner would contend that on account of illness of petitioner-workman, he remained absent and all the SS Authorities have overlooked the medical certificates _ 7 _ preduced by petitioner-workman, which would clearly go to show the ailments that the petitioner-workman was suffering from mild paraheis stroke and non-
an '(OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT COURT OF KARNATAKAHIGH COURT consideration of those certificates by the Authorities, 86 algo the CGIT, has resulted in erroneous award: being passed. It is also contended that the Tribunal erred in present misconduct which has now been ptowd by the respormdent-management -- satisfactorily. "He - farther | centends that misconduct alleged is only unauthorized absence and even if it re held 7 proved order of punishment of dismissal imposed Ott the petitioner is diaproportionate <0 the. alleged proved musconduct. Hence, he pr ays as sting aside 'the award and submits that 7 ribunal cough: to. > hive exercized its power under Section 1iA of the industrial Disputes Act, 1947 and oo modified the order of punishment. On these grounds he secks for allowing of the writ petition and setting aside the award of the CGIT. Learned counsel for reapondent would support the order passed by the CGIT and prays , for dismissal of the writ petition,
4. Hawing heard the learned Advocates, and on perusal of the impugned order, it is noticed that Articles of charge came to be issued to the petitioner-worlanan i 1IGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO as per Annexure-A dated 14/ 23.10.1997 alleging, that petitioner-workman had remained -- a absent unauthorzedly for duty from 30.05.1997 te 14. 10. 1997. mo accepted by the Disciplinary Authority, and accontingly 4 Domestic Enquiry was ondersd to be ek. 'Thereafter, - Domestic Enquiry was held and report came to be submitted by Enquiry Officer | hotiing that charges levelled agpinet the petitioner "workman was proved. After issuarice of. second show cause notice and considering the teply. . submitted by the petitioner- workman, an order come to be passed by the Disciplinary Authority, dismissing the petitioner-
Oe workmen from services vide order dated 19.05.1999.
ss An appeal came to be filed against said order, which aizo did not yield any reault in favour of the petitioner-
ae workman. Thereafter, a mercy petition was filed by the 1 .titioner-workman, which also did not yield any result.
a Thereafter petitioner-workman sought for reference and the appropriate Government by order dated 13.05.2003 referred the dispute for adjudication to the CGIT. After a AiGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH recording the evidence, CGIT by order dated 03.09, 2007 held issue regarding Domestic Enquiry being conducted ne Fair and proper and in the affirmative: Thereaitn Advocates and upheld the action OL ; the mangement i in. removing the petitioner- workman from service with effect from 19.05.1999, -- :
15. It has beeit noticed by ¢ oan that before the Enquiry Oca pattie mer- "workman was given an opportunity. wo defend 'inimeelt and he has appeared before the Enquiry Offcer and in fact he had engaged the services of a co-worker to assist him in conducting the Domestic Enquiry, Ag seen from the recorde, the : workman has attended the enquiries on 09.03.1998, 21.03.21! 1968, 25.03.1998 and 04.04.1998 and the 7 proceedings of the enquiry ha been perused by the 7 _ court which would go to show that petitioner-workman "hes actively participated in the enquiry proceedings.
_ Thus, contention of the learned counsel for petitioner-
workman that there waa no proper opportunity given to \--
JIGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CQ the workman in the Domestic Enquiry cannot be accepted and same is hereby rejected. .
S. As noticed herein above the thrust of 1%. . argument advanced by the learned 'couneel, fox:
petitioner-workman is without eating" the mab) certificates produced by the petitione-workman has been erroneously not conpidewed. iy the Authorities in proper perepective and 2 as puch order of removal is bad. It is contended that on account of ill health, petitioner could not attend the work between 30.05.1997 to 14.10, 1997, Admittedly, medical certificates did not see the light of the day. in 'the Domestic Enquiry. The medical certificates came to be produced by the . petitioner not even at the stage of appellate proceedings, but at the atage of revigional proceedings. The said 7 certificates are as under:
7 "3 From 31.05.1997 to 09.07.1997 was under the treatment of Dr. K.N. Rohimi, Dy. Chief Medical Officer, PHU, aren Bangalore for swelling and pain and declared fit from 10.07.1997. (R-1} (ii} From 12.07.1997 to 25.08.1997 was treatment under Dr. M. Krishna of Sri.Krishna HiGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH Clinic, Bangalore ~ 47 for Hepatitis and a from 26, 08.1997, (R-I)
(i) From 26.08.1997 to 14.09.1997 under Aast. Surgeon, Vani Vilas Hospital, Bangalore.
for viral fever and declared fit on 15.09, 120. oo RIM Danes
(iv) For one day ie., 15.09. 1997 he was nda treatment of Dy. Chief Medicai Officer, PHU, Ubsoor, Bangalore ~ 8 for left id pain RM. "
6. The contention of a is that he has suffered a paralysis ateoke end as 'such he could not attend. to any between 31.05.1997 to 09.07.1997. The said contention is 5 factually incorrect and against medical recordn iteelf for the reasons assigned a. First medical certificate iseued by Dr.K.N.Rohini,
-- relates to swelling and pain and workman has a -- declared fit t resume duty from 10.07.1997 : and as such the first medical certificate does not
- reflect that the workman has euffered any paralysis atroke as contended b. Second medical certificate issued by Dr.M.Krishna is relating to treatment of the petitioner for Hepatitis seeking sick leave for the period do 4IGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO 12.07.1997 to 25.08.1997. Even this certificate would go to show that the workman was certified as fit and he can resume duty with effect from 26.08.1997. a He did not join for duty on iter of tinese two , days.
ie., 10.07.1997 or 26.08. 1997 as. opined by the Doctor. . aa To improve is claim stage by stage and step by step, he produced. one. "more. 'medical certificate issued y Assistant Surgeon, Vani Vilas Hospital, relating to. period 26. 08. 1997 to 14.09.1997 for having been treated for viral fever. Even the said certificate would go to show that he is fit to _ resume duty with effect from 15.09.1997. Even on aa 15, 09. 1997, he did not join for duty.
One "more medical certificate issued by Deputy Chief Medical Officer, Primary Health Unit, Ulsoor ° was produced along with revision petition which depicted that workman was under treatment for one day ie., on 15.09.1997 which means that he L 7 OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUI was fit to join duty from 16.03, 1997. Even thereafter he did not join for duty.
%. Absence from duty es per Articis ofc 'change is for the period 30.05.1997 to. 14.3 10, 1997 and there is | no explanation forthcoming from. petitioner as to 2 why he . didi not resume duties on the dates. certified by the. Doctor. These aspects. were taken irito consideration by the revisional authority ' As Ww ell as the authority considering i his' mercy 'petition, to 'reject the claim and to arrive at a onchuaion what these medical certificates have. been concocted. YY do not t find any infirmity in the said findings ~. B In 86 far as, the contention regarding the i Punishment, imposed on the petitioner being diepropor: sonate to the proved misconduct, ia without any substance. The period of absence ie., 30.05.1997 | SS to 14.10.1997 waa for a period of 154 days. Nothing *." prevented the petitioner-workman te send the leave application atleast by registered post, if he was really suffering from illness as contended. He did not choose Me 1IGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO 16 to do so. The Disciplinary Authority has noticed that the past history of the petitioner does not ins pire any confidence to impose lesser punishment other then . dismiseal and rightly so. The following pest history of the petitioner would go to show that inspite of imposing minor punishments, he dic not tale corrective eteps to"
improve himself or stop from unauthorizedly absenting himself from duties. Infact he had become incorrigible. The past history of the petitioner a& recorded by the Tribunal js ae under: . , me | "Tt Has been contended by the management in their counter statement that the first parry while working im the Engineering . Department -- for having remained , umauthorized absence from 19.03.1989 to 08.69.1989 he was awarded with minor ~~. penalty of withholding of annual increment _ for 24-months; he was suspended from pay end allowances from 13.06.1995 to » 22.06.1995; his one set of privilege pass _ Withheld for sleeping on duty on 17.01.1995:
us annual increment was withheld for three . months from 01.04.1996 for his ' disobedience from 01.04.1997; one set of privilege pass was withheld for unauthorized absence from 31.01.1996 to 25.02.1996, 28.02.1996 to 11.03.1996 and from 14.03.1996 to 04.07.1996; his pay was reduced to the lowest stage for the period of three years for his unauthorized absence from 14.07.1996 to 16.07.1996, 26.07.1996 HbGH COURT OF KARNATAKA HIGH of i to 27.07.1996, 28.12.1996 to 31. 12.1996, 03.01.1997 to 06.01. 1997, 15.01.1997. to 7 12.02.1997; one set of privilege ticket order was withheld for his unauthorized absence oan from 14.07.1995 to 07.08.1905." . .,
9. Thus, taking into "consideration the "past history of the workman the cor has rightly not interfered with the Punishment "imposed by the Disciplinary Authority and question of extending any leniency or. imposing lesser punishment by invoking Section 11a of the industrial Disputes Act, does not arise at all since petitioner workman is a habitual absentse. Hence writ petition is dismissed as devoid of merits. No costs, | Be Sd/-
JUDGE