Karnataka High Court
Karnataka State Road Transport ... vs Gopalkrishna Rao on 11 September, 2012
Author: Subhash B.Adi
Bench: Subhash B Adi
WP No.31648/2011
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11th DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE SUBHASH B ADI
WRIT PETITION NO.31648 OF 2011 (L-KSRTC)
BETWEEN:
KARNATAKA STATE ROAD TRANSPORT
CORPORATION, BANGALORE RURAL DVN.
KIMCO BUILDING, MYSORE ROAD,
BANGALORE
BY ITS DIVISIONAL CONTROLLER
REP BY ITS CHIEF LAW OFFICER ...PETITIONER
(BY SMT. H R RENUKA, ADV.)
AND:
GOPALKRISHNA RAO
S/O LATE C A GANESH RAO
AGED ABOUT 54 YEARS,NO.9,
7TH A CROSS, SANJEEVANAGAR,
MUDALAPALAYA,
BANGALORE-72 ...RESPONDENT
(BY SRI.G.S.NAVEEN KUMAR, ADV.FOR SRI.S B MUKKANNAPPA AND
ASSTS., ADVS.)
---
This writ petition is filed under Articles 226 and 227 of
the Constitution of India praying to issue a writ in the nature
of certiorari quashing the award dt.28.2.11 passed by the III
Addl. Labour Court, Bangalore in Ref.No.15/09 vide Ann-M
and etc.
This Petition coming on for Preliminary Hearing this day,
the Court made the following:-
WP No.31648/2011
2
ORDER
The Corporation has called in question the award in Reference No.15/2009 dated 28.2.2011 on the file of the III Addl. Labour Court, Bangalore.
2. The respondent - workman got a dispute referred under Section 10(1)(C) and 10(1)(D) of the Industrial Disputes Act against his dismissal order dated 12.5.2006.
3. The Corporation initiated enquiry by serving articles of charge inter-alia alleging that, the respondent - workman had remained unauthorisedly absent from 8.9.2004 to 24.6.2005. The Enquiry Officer held that the charges are proved and accordingly submitted a report. The second show cause notice was issued by the Disciplinary Authority for which the workman submitted his explanation. Considering the report of the Enquiry Officer and the explanation, the Disciplinary Authority dismissed the respondent from service w.e.f. 17.5.2006.
4. The Labour Court held that the enquiry is not fair and proper.
WP No.31648/20113
5. To prove the charge, the Corporation led the evidence of MWs-1 and 2. MW-1 was examined to prove the fairness of the enquiry. MW-2 was examined on merit. The Labour Court relied on the cross-examination of MW-2 to hold that MW-2, in his evidence has admitted that the respondent had made a prayer for grant of leave from 9.9.2004 to 6.11.2004 and also admitted that on 25.6.2005 respondent had reported to duty. It also relied on Ex.W-11 to hold that the workman had acquired the information under the provisions of Right to Information Act as regard to the leave at his credit and as per Ex.W11 the workman had sufficient leave to his credit. Relying on these documents, the Labour Court held that the order of dismissal is bad in law and accordingly, set aside the order of dismissal and directed the Corporation to reinstate the workman with continuity of service, consequential benefits and 50% backwages, as against which, the Corporation has filed this writ petition.
6. Learned counsel for the petitioner submitted that the workman had remained absent from 8.9.2004 to 24.6.2005. WP No.31648/2011 4 He was issued with a call notice dated 10.6.2005. Even according to the medical certificate produced by the workman, it discloses that the workman was fit to report to duty as on 2.8.2004. As such, the workman having not reported to duty, despite of the call notice and the Corporation having proved that the workman had remained absent from 8.9.2004 to 24.6.2005, the Labour Court was not justified in setting aside the order of dismissal granting reinstatement, continuity of service and other benefits.
7. On the other hand, learned counsel for the workman relied on the evidence of MW-2 and submitted that MW-2 has not stated that the workman had not made an application for leave. He had only denied of the knowledge of application stated to have been given by the workman. He also relied on Ex.W-11, a document obtained through the Right to Information Act, wherein it is stated that the workman had sufficient leave to his credit.
8. It is not in dispute that the workman had remained absent from 8.9.2004 to 24.6.2005. The evidence of MW-2 does not disclose that MW-2 had admitted that the workman WP No.31648/2011 5 was not well from 9.9.2004 to 23.6.2005. The said evidence is wrongly interpreted by the Labour Court. The evidence shows that MW-2 had no knowledge as to whether the workman was unwell from 9.9.2004 to 23.6.2005. Even as regard to the leave application, MW-2 has only pleaded ignorance. No doubt, when the enquiry is held as not fair and proper, burden lies on the Corporation to prove the charge with material evidence. Since the evidence is insufficient to hold that there is any deliberate act, the Labour Court has held that the order of dismissal is harsh. However, the workman has not proved as to whether he had applied for leave or whether he was under treatment. In such circumstances, the Labour Court should not have granted backwages and consequential benefits. Even assuming that the charge is not proved, that does not mean that backwages becomes automatic. Depending on the circumstances, the Labour Court should pass an order for payment of backwages.
9. In my opinion, in so far as the consequential benefit and backwages is concerned, award of the Labour Court WP No.31648/2011 6 requires to be modified. However, as far as the punishment is concerned, order of dismissal is harsh having regard to the gravity of the charge.
Accordingly, writ petition is partly allowed. Award dated 28.2.2011 in Ref. No.15/2009 on the file of the III Addl. Labour Court, Bangalore is modified. Workman is entitled for reinstatement with continuity of service, however, he is not entitled for consequential benefits and backwages.
Sd/-
JUDGE RV