Karnataka High Court
The Management, Nekrtc vs E Shivashankar S/O Yallanagouda on 18 October, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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WP No. 103204 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 103204 OF 2018 (L-KSRTC)
BETWEEN:
THE DIVISIONAL CONTROLLER, NEKRTC
BALLARI DIVISION,
REP. BY ITS CHIEF LAW OFFICER,
NEKRTC, CENTRAL OFFICE,
SARIGE SADAN, KALABURGI.
...PETITIONER
(BY SRI. PRASHANT HOSAMANI, ADVOCATE)
AND:
E SHIVASHANKAR S/O YALLANAGOUDA
AGE: 55 YEARS, OCC: CONDUCTOR,
R/O: BACK SIDE OF TB BOARD HOSPITAL,
H.NO.142, WARD NO.14, NISHANI CAMP,
(POST) T B DAM HOSAPETE,
DIST: BALLARI.
...RESPONDENT
(BY SRI.S.G.KADADAKATTI AND
SRI. LINGESH KATTIMANI, ADVS.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED:06.10.2017 PASSED BY THE PRINCIPAL
DISTRICT JUDGE BALLARI IN KID NO.11/2016 (ANNEXURE-A).
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 103204 of 2018
ORDER
A departmental enquiry was initiated against the respondent when he was working as a conductor in the Corporation for unauthorized absence from 08.09.2014 to 08.01.2016. The Enquiry Officer after conducting the enquiry submitted a report with the Disciplinary Authority stating that the charge is proved. The Disciplinary Authority after issuing show cause notice and considering the reply and also the enquiry report, passed an order dismissing the respondent from service, against which the respondent raised a dispute under Section 10(4A) of the Industrial Disputes Act, 1947. The labour Court after examining the evidence on record, passed an order setting aside the order of dismissal and directed the petitioner Corporation to reinstate the petitioner in service with continuation of service and backwages against which the Corporation is before this Court.
2. Learned counsel for the petitioner submits that the order of dismissal was passed taking into account the past history of the workman where he was dismissed on identical charges on two occasions. However, the labour Court without considering the said aspect and in the absence of any evidence -3- WP No. 103204 of 2018 that the workman was suffering from paralysis, has passed the impugned order and the same is not sustainable.
3. Learned counsel appearing for the respondent workman submits that the petitioner is suffering from paralysis and for the said reasons, the workman had remained unauthorizedly absent and the Tribunal taking into account the same has passed the impugned order and the same does not warrant any interference.
4. I have examined the submissions made by the learned counsel for the parties.
5. The labour Court has held that the enquiry conducted against the workman was fair and proper. In the disciplinary enquiry, the workman did not participate and the Enquiry Officer based on the available material on record submitted a report stating that the charge against the workman that he remained unauthorizedly absent was proved.
6. The Disciplinary Authority by considering the report submitted by the Enquiry Officer and also the past history of the workman, who was dismissed on similar charges on two occasions, passed the order of dismissal. Before the labour -4- WP No. 103204 of 2018 Court, the workman produced the medical report at Ex.P2, to substantiate his claim that he was suffering from paralysis. However, the workman has not examined the author of the medical report to substantiate his claim that he was suffering from paralysis. In the absence of examination of the author of the medical report at Ex.P2, the said document has no relevance and cannot be considered to substantiate the claim that the workman he was suffering from paralysis and due to which he remained absent.
7. In the absence of any evidence on record, that there was sufficient cause for the workman to remain absent, the impugned order passed by the Tribunal is not sustainable in law.
8. It is undisputed that the workman has 10 months of service left and though the charge against the workman is proved, however, having regard to the peculiar facts and circumstances of the case, the order of dismissal is disproportionate to the charge. Hence, in my opinion, the impugned order of dismissal is modified to compulsory retirement of the workman from the service. Accordingly, I pass the following:
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ORDER Writ petition is allowed.
The impugned order passed by the labour Court, Ballari in KID No.11/2016 is modified.
The order of dismissal is treated as compulsory retirement from service with effect from the order of dismissal i.e., on 08.01.2016. To this extent, the impugned order passed by the labour Court stands modified.
The respondent-workman is entitled for all the benefits flowing form the order of compulsory retirement.
Sd/-
JUDGE RSH LIST NO.: 1 SL NO.: 37