Karnataka High Court
Hashimpeer Ansarasab Logavi vs The Divisional Controller Nekrtc on 22 February, 2016
Equivalent citations: 2016 LAB. I. C. 2962, 2016 (2) AKR 611, (2016) 3 KCCR 329, (2016) 151 FACLR 782
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
W.P.No.205211/2015
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF FEBRUARY, 2016
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT PETITION NO.205211/2015 (L-KSRTC)
BETWEEN:
Hashimpeer Ansarsab
Logavi, Age: 46 years
Occ: Ex. Driver
R/o: At & post: Tajpur
Tq & Dist. Bijapur
... Petitioner
(By Sri Sanjay M. Joshi, Advocate)
AND:
The Divisional Controller
NEKRTC, Bijapur Division
Bijapur - 586 101.
... Respondent
This Writ Petition is filed under Articles 226 & 227
of the Constitution of India, praying to issue a writ
certiorari quashing the order of dismissal of the
petitioner from service passed by the respondent under
No.EaKaRaSa/ViVi:/Sibbandhi/Gai.Ha/119/11/5841/
0011 dated: 28.12.2011, which is produced at
Annexure-A, etc.
2
W.P.No.205211/2015
This petition coming on for preliminary hearing
this day, the Court made the following:
ORDER
Petitioner while in service of the respondent - Public Road Transport Corporation, appointed as driver during the year 1999, remained unauthorizedly absent without prior permission or leave or sanction from duty from 14.11.2010 to 23.03.2011 following which the Depot Manager submitted a report of unauthorized absence and the disciplinary authority instituted disciplinary proceeding under the Karnataka Road Transport Corporation (Conduct and Disciplinary) Regulations, 1971, appointed an Enquiry Officer, held an enquiry extending reasonable opportunity of hearing and submitted a report recording a finding that the charge of unauthorized absence was proved. The disciplinary authority on an independent assessment of the facts, circumstances and evidence on record, held petitioner guilty of the charge of unauthorized absence 3 W.P.No.205211/2015 and by order dated 28.12.2011 terminated the petitioner from service.
2. Petitioner instituted conciliation proceeding resulting in a reference by the State Government of the industrial dispute of termination from service, to the Labour Court, Bijapur, registered as Reference No.27/2013. Petitioner filed a claim statement asserting that he had forwarded leave applications through his wife and that there was no practice of the respondent - Corporation to issue acknowledgements for receipt of leave applications and further that he had leave to his credit and that the absence was due to a fracture that he had sustained in an accident hence unable to discharge duties. The enquiry, which was held, it was alleged was not in accordance with law and the imposition of the punishment of dismissal unreasonable. Petition was opposed by filing statement of objections of the respondent - Corporation, inter alia, 4 W.P.No.205211/2015 denying the allegations but pointing out to the fact of unauthorized absence from 14.11.2010 to 23.03.2011 and the factum of having complied with the provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short the 'Act').
3. In the premise of pleadings of parties, the Labour Court framed issues the first was regarding the validity of the domestic enquiry and the second over justification of the termination from service. Petitioner was examined as PW-1 and marked three documents as Exs.P1 to P3, while for the respondent - Corporation one witness was examined as RW-1 and marked 22 documents as Exs.R1 to R22.
4. Labour Court by order dated 22.07.2014 returned a finding in the negative over the issue relating to validity of the domestic enquiry. As regards the issue over justification for the termination, observed that Ex.P1 contains two copies of medical certificates 5 W.P.No.205211/2015 disclosing fracture of the right shoulder and disc 4S2 and absence from duty from 16.06.2010 to 04.10.2010 was necessary and was fit to resume work from 05.10.2010, although the original of the Ex.P1 was not produced. Ex.P2, it is observed, was a notice of the conciliation proceeding and Ex.P3 the order of dismissal from service. In the cross-examination of PW-1 petitioner, Labour Court observed, there was an admission that he received a call letter to which he states that he filed a leave application asserting his hand bone was fractured. The Labour Court observed that there was no material to establish the factum of the fracture of the hand bone or having filed the leave applications. Although the Labour Court observed that in many cases it is a consistent stand of employees that the employer - Road Transport Corporation does not extend acknowledgements for leave applications (that observation is of no consequence), nevertheless further observed the inconsistencies in the dates contained in 6 W.P.No.205211/2015 Ex.P1 i.e. 16.06.2010 to 04.10.2010 while the absence from duty was from 14.11.2010 to 23.03.2011. The Labour Court reiterates the facum of failure on the part of petitioner to prove the submission of leave letters as well as the fracture of bones during the period of absence. The Labour Court recorded a categorical finding that the misconduct of unauthorized absence is proved. However, at paragraph No.14 the Labour Court observed thus:
"14. xxxx Therefore, the dismissal of the petitioner from service for the misconduct of unauthorized absence for the period from 14.11.2010 to 23.03.2011 appears to be disproportionate. xxxxx"
(emphasis supplied)
5. Labour Court, without applying its mind to relevant facts, very strangely concluded that absence from duty was not intentional, and thereafter proceeded to hold that the order of dismissal is not sustainable in law and needs to be modified by exercising power under 7 W.P.No.205211/2015 Section 11A of the Act and accordingly answered the said issue in the negative, set aside the order of dismissal, directed reinstatement into service with continuity of service and consequential benefits only for the purpose of terminal benefits, while rejecting the relief of back wages, by award dated 28.10.2014.
6. Petitioner - employee, a driver, disgruntled with the award denying continuity of service and back wages and consequential benefits, has presented this petition.
7. In the fact situation, there being no material whatsoever over proof of petitioner having submitted leave applications for the period from 14.11.2010 to 23.03.2011, the charge of unauthorized absence was established. Petitioner sought to prove Ex.P1 copy of medical certificate, as a fact of not being medically fit to attend to duties during the period from 16.06.2010 to 04.10.2010 since suffering from fracture of the right shoulder and disc 4S2 and his absence from duty was 8 W.P.No.205211/2015 necessary. Thus, petitioner intentionally placed before Labour Court Ex.P1 to make the Court to believe that he was medically unfit to discharge duties during the period 14.11.2010 to 23.03.2011 when charged for unauthorized absence, a conduct unbecoming of a Public Transport Corporation. In any event, petitioner had the special knowledge of the reason for his absence from duty and therefore it was not for the respondent - Corporation to prove the negative. Yet again petitioner admitted the fact of having been imposed with a minor punishment in the previous past for unauthorized absence to duties for a period of 113 days. If that is the past history of the petitioner, the Labour Court should have refrained from interfering with the order of dismissal.
8. Be that as it may, the Labour Court jumped to the conclusion that there was a need to interfere with the award by exercising jurisdiction under Section 11A of 9 W.P.No.205211/2015 the Act without for a moment noticing the law on the discretionary power under Section 11A of the Act as observed in L & T Komatsu Ltd. vs. N. Udayakumar1 wherein several earlier opinions of the Supreme Court were followed to hold that the jurisdiction vested in the Labour Court to interfere with punishment was not to be exercised capriciously and arbitrarily, but was necessary in a case where it finds the charge proved, and the conclusion to be arrived at that the punishment was shockingly disproportionate to the nature of charge proved, before interference to reduce the punishment.
9. Labour Court having found that the petitioner was not entitled to continuity of service, consequential benefits except for the purpose of terminal benefits, while denying back wages, since the charge was proved and reinstatement was a benefit, the award impugned does not call for interference.
1 (2008) 1 SCC 224 10 W.P.No.205211/2015
10. In J.K. Synthetics Ltd. vs. K.P.Agrawal2 at paragraph No.19 the Apex Court observed thus:
"19. xxx When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, 2 (2007) 2 SCC 433 11 W.P.No.205211/2015 follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions etc."
11. In the light of the aforesaid observations of the Apex Court, petition devoid of merit, is rejected. Cost quantified at Rs.300/- (Rupees Three Hundred Only) payable by the petitioner.
Sd/-
JUDGE swk