Karnataka High Court
The Management Of Nwkrtc, Hubli vs Kareppa Hulegeppa Bhajantri on 2 August, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 2nd day of August, 2013
Before
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT PETITION No. 63447/2011 (L-KSRTC)
BETWEEN:
1 THE MANAGEMENT OF NWKRTC
HUBLI
2 THE DIVISIONAL CONTROLLER
NWKRTC, CHIKODI DIVISION
BELGAUM
3 THE DEPOT MANAGER
NWKRTC, ATHANI
BELGAUM ... PETITIONERS
- ALL ARE REP BY CHIEF LAW OFFICER
NWKRTC, CENTRAL OFFICES,
GOKUL ROAD, HUBLI 580 030
(By Sri RAVI V HOSMANI, ADVOCATE)
AND :
KAREPPA HULEGEPPA BHAJANTRI
AGE: 48 YRS, DISMISSED JR.ASST.
R/O SHIVASHAKTI NAGAR
1ST CROSS, KELAGERI
DHARWAD ... RESPONDENT
(By Sri.SANTOSH S MANE, ADVOCATE)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE AWARD DATED 24.12.2010 PASSED BY
ADDL.LABOUR COURT, HUBLI IN KID.NO.49/2009
PRODUCED AS ANNEXURE-A.
THIS PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri Ravi V Hosmani, learned Advocate appearing for petitioners and Sri Santosh B Mane, learned Advocate appearing for respondent and perused the records secured from the Labour Court.
2. Though matter is listed for orders, it is taken up for final disposal with the consent of learned Advocates appearing for the parties.
3. North West Karnataka Road Transport Corporation (hereinafter referred to as 'Corporation' for brevity) has filed this writ petition challenging the judgment and award passed by Addl.Labour Court, Hubli in KID No. 49/2009 dated 24.12.2010 :3: whereunder claim petition filed by the workman under Section 10(4-A) of Industrial Disputes (Karnataka Amendment) Act, 1947 against the Corporation having been allowed by setting aside order of dismissal dated 12.06.2009 and granting consequential benefits.
4. Articles of charge came to be issued to the workman on 05.05.2008 alleging that workman was absent from duty unauthorisedly from 08.03.2008 onwards and called upon the workman to submit his reply. No reply was submitted by the workman. Disciplinary authority ordered for conducting an enquiry and during enquiry proceedings, notice of enquiry is stated to have been issued. Respondent- workman did not appear before the Enquiry Officer. Enquiry officer has concluded the enquiry on 24.01.2009 placing the workman exparte. A report came to be submitted on 25.03.2009 holding charges as proved. Second show cause notice dated 31.03.2009 :4: along with copy of the report was issued to the workman which came to be returned by the postal authorities as refused. Disciplinary authority accepted the findings recorded by the enquiry officer and order of dismissal came to be passed against the workman on 12.06.2009.
5. Being aggrieved by the said order, workman raised a dispute before Labour Court by filing a claim petition under section 10(4-A) of Industrial Disputes (Karnataka Amendment) Act, 1947. Corporation on service of notice, appeared and filed its detailed statement of objections. Issues came to be framed by Labour Court and on the issue of fairness of enquiry conducted by the Corporation, it was held that enquiry conducted was not fair and proper i.e., against the Corporation and in favour of the workman and Corporation was given liberty to lead evidence to prove the charges levelled against workman. Corporation :5: examined one of its officers as M.W.1 and through him, got marked documents as Exs.M-1 to M-29. On behalf of workman, he got himself examined as W.W.1 and in all he produced 28 documents and got then marked as Exs.W-1 to W-28. On evaluation of entire evidence available on record, Labour Court held that Corporation was not justified in dismissing the workman from service on the ground that domestic enquiry conducted was not fair and proper. While evaluating the evidence, Labour Court has come to a conclusion that workman had sent leave application from 06.03.2008 onwards and he had also forwarded telegrams seeking extension of leave on medical grounds and this had been ignored by disciplinary authority. Labour Court found from the evidence of M.W.1 that he had admitted receipt of telegram - Ex.W-3 dated 03.02.2008 submitted by workman for extension of leave and when workman had sufficient medical leave and earned leave to his credit as on 08.03.2008 it could not have been ignored. It has :6: further held that since the workman had produced material to show that he had submitted leave applications followed by telegrams which was admitted by M.W.1, it cannot be held that workman had remained absent unauthorisedly.
6. There is no dispute with regard to the fact that from 28.02.2008 to 27.04.2008 workman applied for leave and he was sanctioned leave only up to 07.03.2008. Under KSRTC Employees Leave Rules, 1964 leave cannot be claimed by an employee as a matter of right. Rule 5 mandates as under:
"5. Leave cannot be claimed as of right, discretion is reserved to the authority empowered to grant leave, to refuse or revoke leave at any time according to the exigency of service."
In view of the above rule, it cannot be held that workman had a right to apply for leave and employer was duty bound to grant such leave. Exercising the :7: power vested under Rules, Corporation had granted leave upto 07.03.2008.
7. Now let me examine as to whether there is proper evaluation of evidence by the Labour Court while evaluating the evidence of Corporation and arriving at a conclusion that workman had submitted leave applications on medical grounds and that it was a genuine and bonafide ground to remain absent.
8. Records secured from the Labour Court would indicate that a letter dt.06.03.2008 was forwarded by the workman to the Depot Manager under Certificate of Posting on 06.03.2008 which came to be marked as Ex.W.1 informing the Depot Manager that he is not keeping good health from 27.02.2008 and as such he requested for sanction of medical leave. Undisputedly, no medical certificate was appended to this leave application. However, workman has stated that he would furnish fitness certificate to be issued by :8: the Doctor at the time of joining duty. This letter has been received by Depot Manager as seen from postal acknowledgment Ex.W-4. By reiterating what has been stated in the letter dated 06.03.2008 by Ex.W-1, workman submitted one more leave application on 24.03.2008 (Ex.W-5) which is replica of Ex.W-1. Along with this communication, medical certificate issued by one Dr.Shivayogi Yeledhalli dated 24.03.2008 was produced. Said medical certificate came to be marked as Ex.W-6. Perusal of said certificate would indicate that workman was suffering from amoebic fever and Doctor has certified that workman has to take rest for 15 days from 25.03.2008. Undisputedly, employee/workman is entitled to seek reimbursement of medical expenses. As to whether workman had taken any treatment/medicines for the said period by submitting bills and sought for reimbursement from the Corporation has remained a moot question without being answered. No evidence whatsoever was available :9: on record to accept correctness of the said ailment workman is stated to be suffering from. Doctor who had examined the workman and who had advised rest, was not examined before Labour Court. Mere marking of a document would not be sufficient and contents of it requires to be proved as otherwise, its evidentiary value would get diminished. In the absence of any other corroborative evidence tendered by the employee in this regard, contents of medical certificate will have to be examined with utmost circumspection.
9. From 08.03.2008 to 27.04.2008 the workman has forwarded the leave applications and without obtaining sanction of the same, has remained absent. Though Corporation has contended that even for the subsequent period i.e., after 27.04.2008 workman has remained unauthorisedly absent and as such, articles of charge came to be issued against workman for unauthorised absence from 08.03.2008, I : 10 : am not inclined to accept contention raised by Sri Hosmani on behalf of Corporation that unauthorised absence of workman has to be treated from 08.03.2008 onwards till the date of dismissal for the simple reason that on 28.04.2008 workman approached the Depot Manager for reporting to duty. On account of his refusal to accept the workman's duty report, he has returned back empty handed and immediately on 30.04.2008 about 1.30 p.m. he has sent a registered letter under due acknowledgment enclosing all the earlier communications forwarded to the Depot Manager. The official examined on behalf of Corporation - M.W.1 in his evidence has admitted the receipt of Ex.W-12 dated 28.04.2008. Even thereafter, i.e., on 30.04.2008 workman has submitted a representation to the Divisional Controller requesting for a direction being issued to Depot Manager to accept his duty report. Said communication dated 30.04.2008 came to be marked as Ex.W-15. Likewise, : 11 : representations have been submitted to the Managing Director and Chief Manager as per Ex.W-16 and W-17, receipt of which is not in serious dispute. These exhibits were followed by issuance of legal notice dated 08.05.2008 as per Ex.W-18. Thus, from the evidence on record including admission of M.W.1, it would clearly emerge that Corporation had sanctioned leave upto 07.03.2008 and from 08.03.2008 till date of joining to duty or reporting to duty on 28.04.2008 workman had remained absent unauthorisedly or in other words, without obtaining sanction of leave. From 28.04.2008 it cannot be held or construed that there was unauthorised absence. Inasmuch as, communication dated 28.04.2008 Ex.W-12 would indicate that same has been sent by registered post acknowledgment due which is also admitted by M.W.1 as having been received. Thus, period of unauthorised absence can be held as 08.03.2008 to 27.04.2008. In that view of the matter, Labour Court was not justified in directing : 12 : Corporation to treat the said period as medical leave or earned leave or any other kind of leave available to the credit of workman.
10. Insofar as findings recorded and enquiry being held against workman being not fair and proper and order of dismissal dated 12.06.2009 being disproportionate to the gravity of offence as set aside by the Labour Court is just and proper and it does not call for interference.
11. From the discussion made herein above, it would emerge that unauthorised absence for the period 08.03.2008 to 27.04.2008 when construed was on account of not obtaining sanction of leave, it cannot be made a ground for dismissing an employee from service as it would be highly disproportionate to gravity of misconduct. At the same time, employee without obtaining sanction of leave cannot contend later that : 13 : such leave was required to be sanctioned as earned leave by Corporation. In fact, on facts of the present case this observation is being made since medical certificate produced by the workman would not inspire any confidence for being accepted since disease diagnosed by doctor viz., amebic fever cannot be construed as an ailment or disease which prevented the workman from discharging his duties and also in the absence of examining the Doctor who had treated him or the author of medical certificate Ex.W-13 and W-6 not having been examined before trial Court by the workman. Hence, I am of the considered view that imposition of lesser punishment would suffice and it would meet the ends of justice.
12. Learned Advocate appearing for workman has contended with a feeble voice that issue regarding maintainability of writ petition is challenged before this Court on the ground that order of dismissal is non-est : 14 : since permission of the Industrial Tribunal, Bangalore trying the dispute under I.D.No.145/2005 has not been obtained before order of dismissal was issued to the workman and as such, there is violation of Section 33(2)(b) of Industrial Disputes Act, 1947. A perusal of the claim statement would indicate that such a ground had not been raised before Labour Court and there is no whisper in the evidence of the workman with regard to this plea before Laobur Court and as such, for the first time before this Court such a plea if raised cannot be entertained and as such, contention raised in this regard stands rejected.
13. For the reasons aforestated, following order is passed:
(1) Writ petition is hereby partly allowed.
(2) Judgment and award passed by
Addl.Labour Court, Hubli in KID
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No.49/2009 is hereby modified as
under:
(i) Order of dismissal as set
aside by Labour Court is
affirmed and in view of the
unauthorised absence for
the period of 08.03.2008
and 27.04.2008
punishment of withholding
of one increment without
cumulative effect for the
period of three years is
passed.
(ii) Workman would be entitled
to 50% backwages from the
date of dismissal till date of
award.
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(iii) In all other aspects, award
of Labour Court stands
affirmed.
(3) It is also made clear that direction issued by Labour Court to treat the period 08.03.2008 to 27.04.2008 as medical or earned leave is hereby set aside.
Ordered accordingly.
SD/-
JUDGE *sp