Karnataka High Court
Sri. R. H. Mokashi vs The Divisional Controller on 16 November, 2021
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.29503 OF 2018 (L-KSRTC)
BETWEEN:
SRI R.H.MOKASHI
AGED ABOUT 43 YEARS
S/O HUSSAIN BASHA MOKASHI
R/AT SA TAJAPURA
VIJAYAPURA TALUK
AND DISTRICT-586 130
...PETITIONER
(BY SRI MUKKANNAPPA S.B., ADVOCATE)
AND:
THE DIVISIONAL CONTROLLER
KSRTC, MYSURU RURAL DIVISION
BANNIMANTAPA ROAD
MYSURU-570 001
...RESPONDENT
(BY SMT H.R.RENUKA, ADVOCATE)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE RECORDS ON THE FILE OF LABOUR COURT AT
MYSURU IN REFERENCE NO.5/2016 AND QUASH THE
IMPUGNED AWARD DTD: 5.7.2017 PASSED BY LABOUR
COURT AT MYSURU IN REFERENCE NO.5/2016 AT
ANNEXURE-F TO THE W.P. UNDER THE FACTS AND
CIRCUMSTANCES OF THIS CASE AND ETC.
THIS W.P. COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
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ORDER
This petition is directed against the impugned judgment and award dated 05.07.2017 passed in Ref.No.5/2016 by the Labour Court, Mysuru, whereby the said reference and the claim petition filed by the petitioner / workman was rejected by the Labour Court.
2. Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.
3. In addition to reiterating the various contentions urged in the petition and referring to the documents produced by the petitioner, learned counsel for the petitioner while inviting my attention to the impugned judgment and award submitted that the Labour Court has come to the conclusion that the Domestic Enquiry was not fair and proper. It is the contention of the learned counsel for the petitioner that the petitioner was not in a position to attend the work from 01.06.2012 till 31.08.2012 since he was unwell during that period and the respondent has proceeded to pass the order of dismissal dated 05.09.2014 3 without taking this circumstance into account. It is further contended that despite the petitioner placing sufficient material before the Labour Court to substantiate his contention regarding his inability and omission to report to duty during the aforesaid period was on account of his ill- health, the Labour Court committed a grave and serious error of law and fact in failing to consider and appreciate the material on record, which clearly indicates that the petitioner was not guilty of unauthorised absence and the Labour Court ought to have accepted the explanation offered by the petitioner for remaining absence during the aforesaid period and consequently, the impugned judgment and award passed by the Labour Court dismissing the claim petition filed by the petitioner is perverse and illegal and contrary to the material on record warranting interference by this Court in the present petition. It is also submitted that in view of the material on record, the quantum of punishment of dismissal imposed by the respondent is disproportionate to the alleged misconduct committed by the petitioner and the impugned judgment 4 and award as well as the order of dismissal deserves to be quashed on this ground also.
4. Per contra, learned counsel for the respondent, in addition to supporting the order of dismissal as well as the impugned judgment and award passed by the Labour Court submitted that in the absence of any material produced by the petitioner to establish his illness during the period of absence, both the order of dismissal as well as the impugned judgment and award are perfectly just and proper and the same do not warrant interference by this Court in the present petition.
5. After hearing the learned counsel for the parties and upon perusal of the material on record, the only question that arise for consideration in the present petition is with regard to the quantum of punishment in the order of dismissal dated 05.09.2014, which was affirmed by the Labour Court in the impugned judgment and award. In this context, it is relevant to state that immediately after reporting to duty on 31.08.2012, petitioner / workman has submitted a letter / explanation as to why he remained 5 absent between 01.06.2012 to 31.08.2012 and has stated that he was suffering from typhoid problems and undergoing treatment, which resulted in him remaining absent during the aforesaid period. Though the petitioner has not produced any material on record to establish the said contention, taking a lenient view in the matter and by imposing certain restrictions and by issuing certain directions to the petitioner not to repeat the same misconduct subsequently and by awarding a lesser penalty than the penalty of dismissal by this Court, which is permissible under Section 11-A of the Industrial Disputes Act, 1947, as held in the case of MANAGEMENT OF BHARAT HEAVY ELECTRICALS LIMITED Vs. M. MANI reported in (2018) 1 SCC 285 and SENAPATH WHITELEY LTD. Vs. KARADI GOWDA AND ANOTHER reported in (1999) 9 SCC 259, I am of the considered opinion that the order of dismissal as well as the impugned judgment and award passed by the Labour Court deserves to be modified and the petitioner be directed to be appointed into service with the respondent as a fresher on regular basis without any back wages or any other benefits.
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6. Though the learned counsel for the petitioner would contend that the order of dismissal and the impugned judgment and award deserves to be quashed in its entirety by directing re-instatement, the said contention cannot be accepted in view of the material on record that even subsequent to reporting date on 31.08.2012, petitioner remained absent for a period of 25 days from 12.08.2013 to 05.09.2013 and for a period of 60 days from 11.01.2014 to 11.03.2014 and from 15.06.2014 to 05.09.2014, on which date he was dismissed from service, all of which are sufficient to indicate that the order of dismissal only requires to be modified and not set aside in its entirety and as such, the said contention of the learned counsel for the petitioner cannot be accepted.
7. In the result, I pass the following:
ORDER i. Petition is allowed-in-part. ii. Impugned order of dismissal dated 05.09.2014 at Annexure - C passed by the respondent as well as the impugned judgment and award 7 dated 05.07.2017 at Annexure - F passed by the Labour Court, Mysuru, are hereby modified and reference sent by the government and the claimant statement filed by the first party are allowed-in-part.
iii. Respondent is directed to appoint the petitioner as a fresher driver-cum-conductor on regular basis within a period of one month from the date of receipt of a copy of this order. It is further directed that the said appointment of the petitioner as a fresher on regular basis would be without any consequential benefits in favour of the petitioner / workman. Subject to the aforesaid directions, the order of dismissal dated 05.09.2014 passed by the respondent and the impugned judgment and award dated 05.07.2017 passed by the Labour Court, Mysuru, stand modified accordingly.
SD/-
JUDGE SV