Karnataka High Court
N Krishna Murthy vs The Divisional Controller on 19 August, 2024
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NC: 2024:KHC:33567
WP No. 38674 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
WRIT PETITION NO.38674 OF 2018 (L-KSRTC)
BETWEEN:
N. KRISHNA MURTHY
S/O. LATE NARAYANA SWAMY,
AGED ABOUT 48 YEARS,
R/AT DOOR NO.43, KUMBARA PET,
CHINTAMANI TOWN - 563 125
CHIKKABALLAPURA DISTRICT. ... PETITIONER
(BY SRI M.C. BASAVARAJU, ADVOCATE)
AND:
THE DIVISIONAL CONTROLLER
KSRTC, KOLAR DIVISION,
KOLAR - 563 101. ... RESPONDENT
(BY SRI R.B. ANEPPANAVAR, ADVOCATE)
Digitally signed THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
by SHYAMALA OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
Location: HIGH IMPUGNED AWARD DATED 09.07.2018 PASSED BY THE PRINCIPAL
COURT OF DISTRICT AND SESSION JUDGE AT KOLAR, IN I.D. NO.2/2015 VIDE
KARNATAKA ANNEXURE-B TO THIS WRIT PETITION; DIRECT THE RESPONDENT
TO REINSTATE THE PETITIONER INTO SERVICE WITH CONTINUITY
OF SERVICE AND ALL OTHER CONSEQUENTIAL BENEFITS
INCLUDING BACK WAGES FROM THE DATE OF DISMISSAL TILL THE
DATE OF REINSTATEMENT UNDER THE FACTS AND CIRCUMSTANCES
OF THE CASE.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
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WP No. 38674 of 2018
ORAL ORDER
Assailing the legality and correctness of the award dated 09.07.2018 in ID.No.2/2015 on the file of the Prl. District & Sessions Judge, Kolar (hereinafter referred to as "the Labour Court" for the sake of convenience), the workman is before this Court.
2. Petitioner was appointed as a junior assistant by the respondent - corporation, on the charge of unauthorized absence from 08.08.2013 to 03.03.2014 articles of charges were issued, being not satisfied with the reply submitted by the workman, enquiry was conducted, the charges leveled against the workman was held to be proved. The Disciplinary Authority, by considering the report of the enquiry officer and the material placed before it, dismissed the workman from service.
3. The claim statement was filed by the workman under Section 10(4-A) of the Industrial Disputes Act, 1947 ("the ID Act" for short) seeking to set aside the order of -3- NC: 2024:KHC:33567 WP No. 38674 of 2018 dismissal dated 03.03.2015 passed by the respondent - Corporation and to reinstate the workman into service with continuity of service and other consequential benefits including backwages from the date of dismissal till the date of reinstatement. The corporation filed counter statement, iter alia, contending that the workman was a habitual absentee and the disciplinary authority, considering that the absence was unauthorised, has rightly ordered dismissal from service for the misconduct of unauthorised absence. The Labour Court, by the impugned order, rejected the claim statement and confirmed the order of dismissal of the disciplinary authority.
4. Heard Sri M.C. Basavaraju, learned counsel for the petitioner-workman and Sri R.B. Aneppanavar, learned counsel for the respondent.
5. The grounds made out by the workman are as under:
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(i) The workman had sustained grievous injuries to his left leg, left hand and his back bone and as a result of the accident he is suffering from "post traumatic stiffness of the left leg and swelling", the Medical Board issued disability certificate assessing the disability at 40% and that the disability is of permanent in nature and not likely to improve, hence, he was advised not to travel long distances.
(ii) It is further stated that, after reporting to duty on 04.07.2013, he had developed severe pain in his left leg and back pain, and had requested the Corporation to permit him to work in Kolar Division due to his ill-health, but the same was not conceded. Due to his disability, he could not report to duty from 08.08.2013 to 03.03.2014 as he was under treatment and further, the letters and sanction of leave submitted by the workman was ignored.
(iii) That the enquiry held by the Corporation is not fair and proper and his medical certificates were not considered and hence, the order of dismissal is not proper. -5-
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(iv) That the Labout Court failed to consider that the Corporation has imposed extreme punishment of dismissal and the punishment imposed is disproportionate to the misconduct.
6. Per contra, learned counsel for the Corporation justified the order passed by the Labour Court and the disciplinary authority would urge the following ground:
(i) That the workman is a habitual absentee and has remained absent from work on several occasions from the year 2001 to 2014 for several days and inspite of affording sufficient opportunity, he has not mend his ways and he continued to remain absent from 08.08.2013 to 03.03.2014 without obtaining any leave.
(ii) The workman is a habitual absentee from work and the matter does not require any indulgence by reinstating the workman into service.
(iii) That the Labour Court has rightly rejected the claim statement holding that the records placed by the -6- NC: 2024:KHC:33567 WP No. 38674 of 2018 Corporation demonstrates that he is an habitual absentee and the same does not warrant any interference.
7. The Labour Court, on the preliminary issue regarding fairness of domestic enquiry, held that the domestic enquiry conducted by the Corporation is not fair and proper and hence, on merits, the Corporation examined two witnesses MWs.1 and 2 and got marked documents at Exs.M-1 to M-9. After the closure of the evidence of the Corporation, the workman filed a memo stating that the documents Exs.W-1 to W-28 exhibited in his evidence on issue No.1 may be treated as part of evidence on merits and the workman was examined and marked documents at Exs.MWs.1 to 28.
8. The undisputed fact is that the workman was appointed in the Corporation on 12.12.1988 and for his absence, he was dismissed from service on 03.03.2015 and was reinstated by the appellate authority. Again the workman remained absent from service and an order of dismissal was passed on 22.04.2009 and reinstated by the -7- NC: 2024:KHC:33567 WP No. 38674 of 2018 award passed by the Labour Court for non-compliance of Section 33(2)(b) of the ID Act. Now, in the instant facts, articles of charges was framed for his unauthorised absence from 08.08.2013 to 03.03.2014 and he was dismissed from service by holding enquiry. Though the workman contended that his absence during the said period was due to the health reasons, and that he had developed severe pain to his left leg and back bone due to the accident that occurred on 24.04.2006, and his request for leave was not accepted and he has not remained absent unauthorisedly, but for valid and genuine reasons and the order of dismissal from service is disproportionate to the misconduct of absenteeism. The corporation, before the Labour Court produced the history sheet to indicate that he remained absent not on one occasion but on several occasions and the details of absenteeism of the workman as per Ex.M-2 from 2001 to 2014 is as under:
Sl. From To No. of days
No.
1. 01-02-2001 20-05-2001 109
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2. 17-10-2001 15-11-2001 30
3. 28-02-2005 19-04-2005 50
4. 22-04-2006 22-04-2009 1095
5. 08-08-2013 03-03-2014 208
6. 24-02-1997 21-05-1997 87
7. 17-06-2004 15-10-2004 122
8. 15-06-1997 02-10-1997 110
9. 05-04-2004 05-05-2004 31
10. 25-08-2014 Onwards
9. Habitual absence on the part of the workman is a misconduct in the industrial employment warranting disciplinary punishment. The history sheet indicates the absenteeism on the part of the workman on several occasions, for the relevant period i.e., from 08.08.2013 to 03.03.2014 the absence on the part of the workman is without leave, which is 208 days. The leave application submitted by the workman was not sanctioned and his absence without prior sanction is nothing but an unauthorised absence. The Labour Court on considering the history sheet arrived at a conclusion that the workman is a habitual absentee and for similar charges, the -9- NC: 2024:KHC:33567 WP No. 38674 of 2018 workman was imposed punishment of dismissal and later on reinstated and inspite of giving sufficient opportunity to the workman to mend his ways, the workman has continued to remain absent and the absenteeism on the part of the workman for the relevant period was not genuine. The unauthorised absence without seeking the leave of the employer, when the employee was required to be in service cause hurdles to the employer and the long unauthorized absence, the workman is not entitled for reinstatement. The impugned order passed by the Labour Court does not warrant any interference and this Court pass the following:
ORDER
(i) Writ petition is dismissed.
(ii) The impugned order passed by the Labour Court is hereby confirmed.
Sd/-
(K.S. HEMALEKHA) JUDGE S* List No.: 1 Sl No.: 23