Karnataka High Court
The North West Karnataka vs Mohammad Shafi on 28 February, 2013
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 28 T H DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
WRIT PETITION No.23626 of 2005 [L-K]
BETWEEN:
THE NORTH WEST KARNATAKA
ROAD TRANSPORT CORPORATION
GOKUL ROAD, HUBLI
BY ITS DIVISIONAL CONTROLLER
REP. BY ITS CHIEF LAW OFFICER
... PETITIONER
(By Sri. RAVI V HOSAMANI ADV.)
AND:
MOHAMMAD SHAFI
S/O ANIRUDDIN DALAWAI
R/AT PLOT NO.6
OPP KAKATI POST OFFICE
KAKATI, DIST BELGAUM
... RESPONDENT
(By Sri. B PRABHU DEVARU ADV.)
THIS WRIT PETITION IS FILED UNDER
ARTICLES 226 & 227 OF CONSTITUTION OF INDIA
PRAYING TO QUASH THE AWARD DT. 8.4.2005 PASSED
BY THE PRESIDING OFFICER, ADDITIONAL LABOUR COURT,
HUBLI, IN KID NO.81/1998 VIDE ANNEX.A.
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This Writ Petition coming for Orders this day,
the Court made the following:
O R D E R
Challenge in this writ petition is to an award passed by the Addl. Labour Court at Hubli allowing the claim petition filed under Section 10(4)(A) of the Industrial Disputes Act, 1947 (for short 'the Act') as amended by the Karnataka Legislature and setting aside an order of dismissal dated 04.07.1998 passed by the Management with a modified punishment and the direction for re- instatement of respondent-workman to service.
2. The material facts not in dispute are:-
Respondent had been working as a conductor in the petitioner-Corporation. He remained unauthorisedly absent for duty with effect from 01.03.1996. An article of charges dated 17.06.1996 was issued to the workman for his unauthorised absence with effect from 01.03.1996 :3: onwards. The respondent-workman submitted a reply to the article of charges on 08.02.1997. Not satisfied, the disciplinary authority ordered for holding of a disciplinary enquiry and appointed an enquiry officer. Enquiry having been held, the finding/report was submitted, a copy of which was furnished to the workman alongwith a show-cause notice to submit his explanation on 26.05.1998.
Another show-cause notice was issued on the same day along with default history sheet of the workman. Reply/explanation was submitted by the respondent on 23.06.1998 to the enquiry officer's report and also to the show cause notice enclosing the default history sheet. The disciplinary authority considering the record of enquiry, agreeing with the finding recorded by the enquiry officer in the report and taking into consideration the past history of the workman, passed an order of dismissal dated :4: 04.07.1998 and dismissed the workman from service with immediate effect.
3. The said dismissal order gave rise to an industrial dispute and the workman filed an application under sub-section (4)(A) of Section 10 of the Act. The Management filed counter statement. Based on the pleadings, three issues were raised. The first issue, treated as preliminary issue, was answered in the affirmative vide order dated 20.09.2000 and it was held that the disciplinary enquiry held by the management is fair and proper. The workman got himself examined as WW-1. For the management, MW-1 was examined through whom Exs.M-1 to 36 were marked. On consideration of oral and documentary evidence lead by the parties and having regard to the fact that that workman had remained absent for duty and there being no materials to show that either :5: permission or leave was granted to him and that the absence undoubtedly amounts to unauthorised absence, it was held that the charge leveled against the workman as proved. However, examining the issue of proportionality of the punishment imposed on the workman, by making reference to the judgment passed in W.A. No.3985-86/2002 dated 09.12.2002, order passed in W.P. No.4876/2004 dated 09.02.2004 and the decision reported in ILR 1994 KAR 3461 [A.M.ESHWARACHAR V/s. EXECUTIVE ENGINEER (ELCL)], it was held that the punishment of dismissal imposed is not at all justifiable. As a result, the order of dismissal passed against the workman was held as liable to be set aside and substituted punishment is liable to be imposed. The workman was directed to be reinstated without back-wages by reducing his pay by five incremental stages in exercise of power under Section 11-A of the Act. The Management :6: has questioned the said award by filing this writ petition.
4. Sri Ravi V. Hosamani, learned advocate appearing for the petitioner contended that it was not for the first time, respondent was guilty of absenteeism, on the contrary, he had history, in that, he had remained absent on seven previous occasions, in all, for more than 1214 days and under the circumstances, there was no justification for the Labour Court to have set aside the order of dismissal and substitute the punishment to one of reduction of pay by five incremental stages. Learned counsel submitted that denial of back- wages cannot be treated as a punishment and the exercise of power under Section 11-A of the Act by the Labour Court in the case is arbitrary and contrary to the ratio of law laid down in catena of decisions of the Apex Court. Learned counsel :7: submitted that the respondent being a habitual absentee and there being gross violation of discipline, the Labour Court without taking into consideration the past misconduct of the workman, wherein, for unauthorised absence minor punishments were imposed and opportunity was granted to the workman to mend his conduct, but the same having proved to be of no consequence, the order of dismissal passed being justified, ought not have been interfered with.
5. Sri. Ravi Hegde, learned advocate appearing for the respondent, on the other hand, submitted that on account of illness of the respondent, there was unintentional absence, which should not have been viewed seriously and the extreme punishment of dismissal should not have been passed. Learned counsel submitted that the reasons assigned by the Labour Court in para 14 of :8: its award, to hold that the punishment of dismissal is not at all justifiable being correct and in view of the denial of back-wages with a substituted punishment, no interference in the matter is warranted.
6. Perused the record.
7. Keeping in view the rival contentions, the point for consideration is:
W hether the Labour Court is justified in setting aside the order of dismissal from service and in directing the re-
instatement of the workman to service with reduction of five incremental stages?
8. Labour court by an order dated 20.09.2000, has held that the disciplinary enquiry conducted by the Management is fair and proper. The Labour Court considering the evidence of WW-1 and MW-1 and Exs.M-1 to 36 has found that the :9: charge leveled against the workman i.e., unauthorised absence for duty as having been established. The Labour Court while considering the point about the proportionality of punishment has not taken into consideration the past history of the workman. The management issued show-cause notice dated 26.05.1998 along with workman's default history sheet and upon consideration of the reply submitted to the enquiry report and also to the default history sheet, the order of dismissal was passed.
9. Sri. Ravi Hegde, does not dispute the fact that the workman had absented for duty every year for more than 50 days in a year from 1991 to 1995, the details of which can be found in the order of dismissal, as at Annexure 'B'. There is violation of discipline by the respondent and the charged misconduct has been held as proved. The Labour : 10 : Court has not held that the punishment imposed by the management is wholly and shockingly disproportionate to the degree of guilt of the workman concerned.
10. In the case of MAHINDRA AND MAHINDRA LTD. Vs. N.B. NARAWADE [(2005) 3 SCC 134], it is held as follows:-
"20 . It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court/Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to herein above and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised under Section 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the : 11 : court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct of the workman which may persuade the Labour Court to reduce the punishment. In the absence of any such factor existing, the Labour Court cannot by way of sympathy alone exercise the power under Section 11-A of the Act to reduce the punishment....."
11. Had the Labour Court taken into consideration the unauthorised absence of the workman, as has been extracted in the order of dismissal dated 04.07.1998 passed by the Management, which was also put to the workman by furnishing default history sheet along with show cause notice on 26.05.1998, it could not have exercised the plenary power under Section 11-A of the Act.
12. When the case is considered in the said factual background and in the light of the said position of law by the Apex Court in the matter of : 12 : exercise of authority under Section 11-A of the Act by an Industrial Tribunal or the Labour Court, as the case may be, the only conclusion which can be reached is that the Labour Court is not justified in setting aside the order of dismissal and directing the reinstatement of workman by reducing the pay by five incremental stages. The impugned award is arbitrary and illegal. Hence, the same is liable to be set aside.
In the result, the writ petition is allowed and the impugned award of the Additional Labour Court at Hubli is quashed. Consequently, the order of dismissal passed by the disciplinary authority against the workman on 04.07.1998 is restored. However, there shall be no order as to costs.
SD/-
JUDGE RK/-