Karnataka High Court
North West Karnataka Road Transport ... vs S.J. Fernandes on 22 November, 2000
Equivalent citations: [2001(89)FLR813], ILR2001KAR1264, (2002)IVLLJ546KANT
ORDER M.F. Saldanha, J.
1. Both these Writ Petitions are directed against an award of the Industrial Tribunal, Bangalore dated September 10, 1999, The North West Karnataka Road Transport Corporation hereinafter referred to as 'the Corporation' is the petitioner in the first writ petition and the employee, is the petitioner in the second one. The Corporation has assailed the correctness of the order passed by the Tribunal ordering reinstatement of the employees with 50% back wages. The employee is aggrieved by the order whereby only 50% of the back wages and benefits have been awarded and has consequently filed the second of the two petitions contending that on the facts of the present case where the Tribunal was satisfied that the enquiry was not just and proper and that no punishment was leviable that the full back wages and benefits ought to have been awarded.
2. The employee was working as a Helper-B at the Corporation's Belgaum Rural Depot and it is alleged that he was unauthorisedly absent through different periods from May 6, 1993 unto August 26, 1993 for a total of 110 days without submitting any leave application or without obtaining prior permission from the authorities. The Corporation contends that the unauthorised absence had caused such inconvenience to the working of the depot, that the manager submitted his report regarding the unauthorised absence of the employee to the disciplinary authority for taking necessary action. The disciplinary authority issued a call memo dated July 16, 1993 and also issued articles of charges. The respondent was directed to report for duty within 48 hours of the receipt of the call memo. It is contended by the Corporation that the call memo as well as the articles of charges were sent to the respondent's residential address but were returned unserved. On August 26, 1993 the employee approached the disciplinary authority with an application for permission to report for duty and he also submitted a medical certificate stating that he was under medical treatment from May 6, 1993 to August 25, 1993. The employee was permitted to rejoin the duties on that date, the articles of charge along with the statement of imputations etc., were served on him but he did not submit any explanation or defence. The disciplinary' authority appointed an Enquiry Officer to conduct the enquiry. The corporation contends that the enquiry was conducted in keeping with the Conduct and Discipline Regulations that the employee was defended by a colleague of his and mat at the completion of the enquiry the disciplinary authority finally passed an order of dismissal against the employee on May 23, 1995. It is against this order that the employee approached the Tribunal.
3. I do not need to deal with the controversy concerning the question as to whether the employee was justified in approaching the Tribunal because his learned counsel has submitted that by virtue of a proceeding that was then pending, that the employee was within his rights to take the case before that authority. In any event, the authority has exercised jurisdiction by entertaining the complaint. I see no ground on which the exercise of that jurisdiction can really be questioned. The Tribunal recorded a preliminary finding that the enquiry was not just and proper and the reasoning for this was of some importance. This is one of the cases wherein the corporation had contended that the absence of the employee was totally unjustified but more importantly, what was pointed out to the disciplinary authority in the form of absence record maintained by the corporation was that between the short period January 1, 1990 and December 31, 1992 that the employee had absented himself from his duties on as many as twenty one occasions for different periods of time ranging from 18 days to 25 days, 33 days to 43 days to 89 days and to 104 days, not to mention the remaining shorter periods. The absence record indicated something more serious because the corporation pointed out to the disciplinary authority that even after reporting for duty on August 27, 1993 the employee again remained absent from duties on another twelve occasions wherein, excluding the short periods we have 64 days, 71 days and 121 days. It was contended that the employee is a habitual absentee and that this conduct on his part compounds the acts of misconduct which form the subject matter of the charge. The disciplinary authority has taken all these factors into consideration while passing the order of dismissal and the Tribunal observed that the record was not clear on the question as to whether this last head of material namely adverse service record of the employee had been made available to him and on this solitary ground since obviously the disciplinary authority had relied on this material the finding was recorded that the enquiry was not just and proper. I propose to dispose of this point at this stage itself because the corporation's learned counsel submitted that the service record is part of the official record maintained by the corporation which is relevant under the povisions of law and which necessarily has to be taken into consideration by the disciplinary authority while imposing a punishment in keeping with the general principles relating to trials and enquiries, if there is such material on record that it is the duty of the corporation to place it before the disciplinary authority and that this does not form the subject matter of the charge or the imputations that consequentially does not require to be separately made available to the employee. On the other hand, learned counsel who represents the employee vehemently submitted that if this material is taken into consideration, that it makes all the difference when it comes to the aspect of judging the quantum of punishment or in a given case in coming to the conclusion as to whether at all the employee has to be penalised and since it has some bearing on the outcome of the enquiry that the corporation is not justified in smuggling this material into the enquiry proceedings behind the back of the employee and that therefore the finding of the Tribunal was justified. I need to observe here that the contention raised by the learned counsel who represents the employee is justified because he is right when he points out that material which has a bearing on an adverse decision must, in keeping with the rule of fairness be made available or brought to the notice of the party who is likely to be affected and to this extent if this substantially adverse record was not brought to the notice of the employee prior to the passing of the order of dismissal that it was certainly a breach of procedure. The question is whether the Tribunal was right in holding that the enquiry was not just and proper,
4. The conduct of the enquiry in this case has been reviewed by me and I find that the sweeping and mechanical observation of the Tribunal that the enquiry was not just and proper was totally misconceived. What the Tribunal has overlooked is that at the fag end of the enquiry, prior to the passing of the order against the employee by the disciplinary authority his adverse service record was produced and this was relied upon. This would not vitiate the rest of the enquiry which was perfectly in order and if the breach of Procedure has taken place only at that late point of time, the correct procedure which the Tribunal ought to have adopted was to have set aside the order of punishment giving the employee an opportunity of representing whatever he wanted to in relation to his service record and to have directed the disciplinary authority to take everything into consideration and passed a de novo order. It is necessary for the guidance of these Tribunals and Labour Courts to point out that unless there are inherent basic defects, infirmities and illegalities that the enquiries are not to be mechanically set aside and that if there is a curable infirmity then the procedure is to direct corrective action.
5. The corporation's learned counsel submitted that the evidence in this case is within a very narrow ambit insofar as the absence for a period of 110 days is a matter of record, that the employee had not submitted any leave application prior to the absence cannot be disputed and that he did not also intimate the corporation even assuming he was prevented from doing so in advance at the earliest point of time, is also a matter of record. Her submission is that the solitary ground pleaded in defence by the employee was that he was unwell and a medical certificate was produced which indicated that he was suffering from an abscess on his left foot for which the doctor has treated him. The contention raised is that this was not a ground on which the unauthorised absence for a period of 110 days can be justified and that consequently, the punishment was perfectly in order. The further submission canvassed is that if the manner in which the employee has absented himself unauthorisedly on as many as thirty three occasions, twelve of which are after he was permitted to rejoin his service is taken into account, it will be established that he was a habitual absentee, and that if the entire record is to be evaluated correctly the order of dismissal from service was perfectly justified.
6. The learned counsel who represents the employee vehemently submitted that once the Tribunal held that the enquiry was not just and proper that the corporation had to start from square one and that he was obliged to establish to the hilt the misconduct in the first place and the justification for the punishment in the second place. In my considered view, the submission in question while being technically correct overlooks one important factor namely that every case has to be evaluated on its own facts and this was a case in which the absenteeism and the non- observation of the leave regulations is a matter of record and therefore the onus shifts to the employee to either establish that the charges are groundless or the next best thing is to put forward valid and cogent justification for the absence in order to mitigate the gravity of the misconduct. It is necessary for me to point this out because the learned counsel further submitted that the burden of proof lay entirely on the corporation and not on the employee which position is not legally sound as the onus shifts.
7. The next submission canvassed by the earned counsel was that the employee had submitted a memo which covered a period of absence from May 6, 1993 to August 26, 1993 i.e. the full period of 110 days and his submission was that if the medical certificate was called into question or doubted or disputed then alone was the employee obliged to prove it and in the absence of any such challenge from the corporation, the certificate would have to be accepted. His contention is that once the certificate is accepted, the Court would have to hold that the absence was due to the illness or incapacity and that it would not constitute misconduct. I need to clarify here that the argument is partially valid in so far as the certificate in the present case was not disputed but a Court is not obliged to treat that certificate as being sacrosant if on the face of the certificate it does not inspire confidence. Even taking the certificate at face value, it only indicates that for the period of 110 days the employee is alleged to have been suffering from an abscess on his left foot which to my mind is not a serious ailment. More importantly, this is not an ailment that incapacitates the employee from reporting for work and lastly, it is not an ailment that is so very serious that would prevent the employee from informing the employer of his inability to work and asking for leave. Consequently, the certificate in question does little on the face of the present case to mitigate the unauthorised absence on the part of the employee. The burden lay heavily on the employee to justify the absence or to mitigate the circumstances under which he was absent and on the present record, he has failed on both counts.
8. The learned counsel then argued very vehemently that the heavy reliance that is placed at all stages on the absence record of the employee without the Corporation having brought forward any witness or any supportive evidence to prove that record would require that the Court should ignore it in so far as the Corporation has not substantiated the absence record. To my mind, the position is exactly the opposite because the absence record forms part of the official service record maintained by a public corporation which has been produced in the legal proceedings in the ordinary course and which is totally admissible in evidence. At no stage has the employee disputed the correctness of this part of the record. Had this been done, then the subsequent question of justifying its correctness would have arisen but in the absence of any challenge at any point of time there was no necessity for any further evidence in support of this record, It is true that there is a passing reference in the evidence of the depot Manager which has been referred by the learned counsel wherein he has indicated that the service record of the employee was in order and what is contended is that this statement runs contrary to this absence record. I do not really see how this argument is tenable because absence or presence record of a particular employee is maintained by an entirely different department and if the manager of the depot refers generally to the satisfaction of his work that would not nullify the correctness of the record.
9. The last submission canvassed on behalf of the employee was mat the charge in question relates to only one head dealing with one instance of unauthorised absence and that an order of dismissal would be totally unjustified even assuming this head of charge is proved. In other words, what was essentially contended was that even assuming that the record justifies an adverse verdict against the employee that the order of dismissal was too harsh and that consequently, the Tribunal was justified in having set it aside. A vehement submission or the usual submission has been canvassed on behalf of the corporation that this is one of the grossest cases of unauthorised absenteeism, that this type of misconduct seriously disrupts the working of a transport undertaking, that it does also affect the economics, that it also necessitates the employment of other persons to do the same job and dual expenditure on the Corporation and that consequently the order of dismissal from service on the facts of the present case was completely justified.
10. I need to observe here that unauthorised absence from duty particularly on the part of an employee of a Corporation such as a transport undertaking has a very serious disruptive effect on the working of the corporation's services. At times it could even affect the safety of the vehicles and of the passengers and consequently, the Courts will have to construe the provisions applicable to these employees strictly and in those of the cases where the misconduct is gross or very gross that punishment in consonance with the gravity of the misconduct would have to be imposed also as a deterrent to others. The reason for this is because one needs to take into account the consequences of such misconduct and the rampancy and more importantly, the misplaced confidence that irrespective of what the nature of the misconduct is, that the employee will still get away lightly and as has happened in the present case and thereafter will continue with impunity to behave not only as badly but even worse. In this instance after 21 unauthorised absences and on the 22nd occasion the petitioner being permitted to rejoin his duties after an absence of 110 days instead of mending his ways, he compounds and aggravates the situation by remaining absent on another twelve occasions. It would be difficult to find a grosser or more serious case and to my mind the service record grossly aggravates the gravity of the misconduct that has been proved, It is for these reasons that on the facts of the present case the employee does qualify for a punishment order of considerable strictness. I however do not share the view expressed by the disciplinary authority that on a total consideration of this record that the case qualifies for an order of dismissal, the only reason being that dismissal is the extreme form of punishment that can be awarded in a disciplinary proceeding and one which contemplates misconduct of an abnormally and exceptionally high order. The misconduct in the present case constitutes unauthorised absence and it is true that it was over a long period of time which was unjustified further more because it was recurrent but in dismissing the employee the disciplinary authority ought to have realised that the consequences would be mat it would affect his prospect of service elsewhere and more importantly that it would disentitle him to the receipt of whatever terminal benefits he would otherwise get for his earlier period of service even while imposing a punishment, a level of balance and maturity and not vindictiveness is required to be observed and to my mind, having regard to the fact that the conduct of the employee undoubtedly demonstrated that he was obviously no longer interested in serving in the corporation or that he had better occupation elsewhere the corporation should have very correctly relieved him of his services. Consequently, while partially allowing the petition filed by the corporation it is directed that the order of dismissal shall be reduced to one of termination of services. The writ petition filed by the employee fails and stands disposed of. In the circumstances of the cases, mere shall be no order as to costs.
11. Before parting with this judgment, this Court finds it absolutely essential to sound a note of caution which is directed to the Industrial Courts and Tribunals in the State dealing with service cases. The manner in which reinstatements are being indiscriminately directed almost on a mechanical basis requires to be disapproved of unless the facts and circumstances of a particular case judiciously fully justify such an order. It is the constant complaints of the corporations and the Government departments that even in cases of the grossest form of indiscipline where the termination or dismissal orders are 100% justified that reinstatement is being ordered as a matter of course and that the first fall out of such unwarranted orders is that discipline in the organisation is a casualty. It has led to a confidence among the indisciplined section of the employees that irrespective of how gross the misconduct is that the Courts will come to their assistance and give their jobs back. Not only does this create a premium on indiscipline but what is even worse is that experience has shown that these persons become virtually uncontrollable on the next occasion and are the worst possible example to their colleagues. It is the duty of the Courts to ensure that indiscipline is controlled and put down and this has to be done firmly and dispassionately. While, there is no gain-saying that if an employee has been wrongfully terminated or dismissed that the Court must certainly come to the assistance of the employee but this does not mean that without any application of mind and merely because there is a prayer for reinstatement that even in every undeserving case, the Court should order reinstatement. What every employee in this country must bear in mind is that there is a very large number of educated unemployed, that those who have been fortunate enough to secure jobs must realise that if they misbehave grossly that they have no right to ask for their jobs back since mere are several more deserving persons to occupy those posts. Where an employee who grossly misconducts had been rightfully dismissed and the post is filled by another person and years later the Court orders reinstatement the employer is required to make way for one additional person even though most of the times in the public sector the institutions are already overstaffed. There could be few grosser more shocking cases than the present one where an employee who misconducts himself on 34 occasions and abstains himself from working to the extent of almost 89% of the tenure is still ordered to be reinstated with back wages!
12. Again, this Court needs to lay down very firmly that as far as the award of back wages is concerned that it is only where the employee is cleared of the charges totally and completely that an order for back wages is justifiable. Back wages are not to be awarded mechanically and as a matter of course but even in those of the cases where on sympathetic grounds or for a variety of reasons reinstatement is ordered the payment of back wages may not be justified because the employee has had to pay another employee for performing the job functions right through that period of time. Again, where these proceedings takes several years and an order for payment of back wages emerges, the employer is required to pay to the employee who has misconducted that large amount of money without having got the benefit of employer having worked during that period of time. This is against public interest and more importantly, as the Supreme Court has very rightly observed could amount to rewarding misconduct which is not the objective of the law. It is no justification to assume that the subordinate Courts can continue passing wrong orders because the High Court is there to correct them. The correct procedure is for the subordinate Courts to refrain from passing such wrong orders and not to continue this incorrect practice in the hope that they are providing more work for the High Court (Registrar General to circulate a copy of this judgment to all the Labour Courts and Tribunals in the State).