Karnataka High Court
The Divisional Controller, vs Sri.Kutubuddin S/O Dawalasab Sothe, on 20 April, 2017
Author: Vineet Kothari
Bench: Vineet Kothari
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF APRIL 2017
BEFORE
THE HON'BLE DR. JUSTICE VINEET KOTHARI
WRIT PETITION No.60780/2011(L-KSRTC)
BETWEEN:
THE DIVISIONAL CONTROLLER,
NWKRTC, BAGALKOT DIVISION,
BAGALLKOT,
REP. BY ITS CHIEF LAW OFFICER,
NWKRTC, CENTRAL OFFICER,
HUBLI.
... PETITIONER
(BY SRI. SHIVAKUMAR S BADAWADAGI, ADV.)
AND:
KUTUBUDDIN S/O DAWALASAB SOTHE,
AGED ABOUT 59 YEARS, OCC:NIL,
R/O SOTHE GALLI, MUDDEBIHAL,
TQ:MUDDEBIHAL, DIST:BIJAPUR.
... RESPONDENT
(BY SRI.S.K. HEGDE, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO
ISSUE A WRIT IN THE NATURE OF CERTIORARI
THEREBY QUASHING THE AWARD DATED 4.3.2008
PASSED BY THE LEARNED PRESIDING OFFICER,
Date of Order: 20.04.2017 in WP No.60780/2011(L-KSRTC)
The Divisional Controller, NWKRTC Vs. Kutubuddin S/o Dawalsab Sothe
:2:
LABOUR COURT, BIJAPUR IN KID NO.27/2005 AND
CONSEQUENTLY BE PLESED TO DISMISS THE KID
NO.27/2005 FILED BY THE RESPONDENT ON THE FILE
OF LEARNED LABOUR COURT, BIJAPUR AND THE
COPY OF THE SAME HEREWITH IS AS AT ANNEXURE-
G IN THE INTEREST OF JUSTICE AND EQUITY.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING B GROUP THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Mr.Shivakumar S Badawadagi, Adv. for the petitioner. Mr.S.K. Hegde, Adv. for the respondent.
1. This petition has been filed by the employer NWKRTC, aggrieved by the order passed by the learned Labour Court, Bijapur, dated 4.3.2008 in KID No.27/2005 setting aside the dismissal order of the respondent workman, dated 19.5.2005 and directing the present petitioner NWKRTC to extend the Voluntary Retirement Scheme to the respondent workman.
2. The relevant reasons given by the learned Labour Court, Bijapur in the impugned order are quoted below for ready reference:
Date of Order: 20.04.2017 in WP No.60780/2011(L-KSRTC) The Divisional Controller, NWKRTC Vs. Kutubuddin S/o Dawalsab Sothe :3: " 17. Now it is explanation of the claimant that he was suffering from heart ailment and that he was under the treatment. In this regard, the claimant has produced the original treatment records before the Court and copies of the same are marked at Exs.W1 to 85 after verifying the original medical records. On perusal of these voluminous records it cannot be said that these records are got created by the claimant. On perusal of the same, it evident that the claimant has undergone treatment in Jayadeva Institute of Cardiology, Bangalore and in other hospital also. Therefore, these voluminous records indicate the fact that the claimant has undergone treatment under various cardiologist and there is no reason to suspect the same. In the course of cross-examination of MW2 it is elicited that respondent corporation has also not disputed that ailment as well as treatment of the claimant at no point of time. The respondent/corporation admits the fact that the medical records were produced by the claimant.
But there is no explanation as to why these records were not considered at the time of sending the enquiry report to the superior authority. When there is explanation on behalf of the claimant Date of Order: 20.04.2017 in WP No.60780/2011(L-KSRTC) The Divisional Controller, NWKRTC Vs. Kutubuddin S/o Dawalsab Sothe :4: regarding medical grounds, the authority should have considered the same in order to see whether the explanation offered by the claimant is just and proper. This Court has seen the physical appearance of the claimant at the time of evidence before this Court. On perusal of physical conditions as well as medical records produced by him, it can be said that the claimant was under
treatment for his heart ailment. Admittedly, the respondent has also not produced the evidence of the then Depot Manager to denying the version of the claimant that he had given leave application in his hand and that the then Depot Manager was aware of treatment of the claimant. Therefore, it cannot be said that the claimant remained absent unauthorisedly and without informing the Depot Manager. Therefore, medical reports as well as explanation offered by the claimant proves the fact that it was not intentional unauthorised absenteeism. However, the claimant would have taken more precaution in sending the leave application by registered post, so as to get acknowledgment of the same. This was not followed by the claimant. If the claimant is deprived of the salary and increment during the Date of Order: 20.04.2017 in WP No.60780/2011(L-KSRTC) The Divisional Controller, NWKRTC Vs. Kutubuddin S/o Dawalsab Sothe :5: period of absenteeism it will meet the ends of justice. In view of delicate health of the claimant the claimant is not in a position to work as driver and it would be just and proper to allow him to retire voluntarily under VRS scheme, instead of order of dismissal. Otherwise, the claimant will be victimized and his cry that he was taking treatment for his heart ailment will go unheard. Under these peculiar circumstances, this court is of opinion that it is a fit case wherein interference is to be made U/s 11A of the ID Act, so as to replace the order of dismissal by directing the respondent to allow the claimant to retire voluntarily extending VRS scheme by denying backwages. For these reasons, issue No.2 has to be answered in the Negative. Hence, I proceed to pass the following:
ORDER This claim statement is hereby allowed partly. No order as to costs.
The order of dismissal dated 19.5.2005 is hereby set-aside.
The respondent is hereby directed to extend voluntary retirement scheme to the claimant, instead of order of dismissal. The claimant is not Date of Order: 20.04.2017 in WP No.60780/2011(L-KSRTC) The Divisional Controller, NWKRTC Vs. Kutubuddin S/o Dawalsab Sothe :6: entitled to any backwages and no increment during the period of absenteeism. "
3. Having heard the learned counsel for the petitioner NWKRTC, this Court is satisfied that there is no sufficient reason to interfere with the impugned order passed by the learned Labour Court, Bijapur.
4. In view of the facts and circumstances of the case, the petitioner NWKRTC deserves to consider the extension of benefit of VRS Scheme to the respondent workman and settle his retiral dues accordingly.
5. Though none is present on behalf of the respondent workman, it is directed that the said directions of the learned Labour Court may be complied with expeditiously, within a period of three months from today.
6. Accordingly, the writ petition of the NWKRTC is disposed of. No costs.
Date of Order: 20.04.2017 in WP No.60780/2011(L-KSRTC) The Divisional Controller, NWKRTC Vs. Kutubuddin S/o Dawalsab Sothe :7: Copy be sent to the respondent workman forthwith.
Sd/-
JUDGE JTR