Karnataka High Court
The Karnataka State Road vs Sri Savanth Mali on 6 March, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2024:KHC:9383
WP No. 9922 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 9922 OF 2019 (L-KSRTC)
BETWEEN:
THE KARNATAKA STATE ROAD
TRANSPORT CORPORATION,
BENGALURU CENTRAL DIVISION,
BY ITS CHIEF LAW OFFICER,
K.H. ROAD, SHANTHINAGAR,
BENGALURU - 560 027.
...PETITIONER
(BY SRI. R.B. ANEPPANAVAR, ADVOCATE)
AND:
SRI. SAVANTH MALI S/O MURUGAPPA MALI,
AGED ABOUT 45 YEARS,
OCC: EX-DRIVER-CUM-CONDUCTOR,
B NO.5345, TUMKUR DEPOT NO.1,
Digitally
signed by A K KSRTCL, TUMKUR DIVISION,
CHANDRIKA R/AT KAVACHA KOPPA VILLAGE & POST,
Location:
HIGH COURT ATHANI TALUK, BELGAUM DISTRICT - 591 304.
OF ...RESPONDENT
KARNATAKA
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED AWARD DATED 04.07.2018 PASSED BY THE
PRINCIPAL DISTRICT JUDGE, TUMKUR IN
I.D.NO.10(4)(A)10/2016 PRODUCED AS ANNEXURE-J AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:9383
WP No. 9922 of 2019
ORDER
The petitioner, Karnataka State Road Transport Corporation (for short 'the KSRTC') is before this Court questioning the correctness and legality of Award dated 04.07.2018 in I.D.No.10/2016 on the file of the Principal District and Sessions Judge, Tumakuru, by which, the dispute raised by the respondent-workman is allowed, setting aside the order of dismissal dated 10.07.2015 directing reinstatement of the respondent into service without any continuity of service and back-wages. The petitioner-KSRTC is before this Court challenging portion of the order setting aside the order of dismissal and directing reinstatement.
2. Heard Sri. R.B.Aneppanavar, learned counsel for the petitioner-KSRTC. The respondent is served and unrepresented. Perused the writ petition papers.
3. Learned counsel for the petitioner would submit that the respondent was working as Driver-cum-Conductor since 2008. It is further submitted that the respondent remained unauthorizedly absent with effect from 24.07.2014 to 10.07.2015, nearly for a period of 351 days, without submitting -3- NC: 2024:KHC:9383 WP No. 9922 of 2019 leave application and without sanction of leave. Learned counsel would further submit that the petitioner-Corporation issued Charge Memo dated 29.11.2014 for unauthorized absence. As the respondent-workman failed to submit any reply, the petitioner-Corporation appointed Enquiry Officer. The respondent remained absent before the Enquiry Officer and Enquiry Officer proceeded with enquiry ex-parte. Based on the Enquiry Report submitted by the Enquiry Officer and after issuance of show-cause notice along with Enquiry Report, the petitioner-Corporation passed order dated 10.07.2015 (Annexure-D), dismissing the respondent from services of the petitioner-Corporation for proved unauthorized absence. The respondent aggrieved by the order of dismissal, raised dispute and sought reference under Section 10(4A) of the Industrial Disputes Act, 1947 (for short '1947 Act') and accordingly, the reference was made in I.D.No.10/2016.
4. Further, learned counsel for the petitioner submits that the Labour Court by its order dated 21.11.2017 answered preliminary issue and held that the enquiry conducted by the petitioner-Corporation against the respondent is fair and proper. Thereafter, under Award dated 04.07.2018, the Labour -4- NC: 2024:KHC:9383 WP No. 9922 of 2019 Court came to the conclusion that the charges are proved against the respondent-workman, but while exercising discretion, has come to the conclusion that the punishment of dismissal is disproportionate to the nature and gravity of charge of unauthorized absence and set aside the order of dismissal and directed reinstatement of the respondent- workman. Learned counsel for the petitioner would submit that the Award of the Labour Court is unsustainable insofar as setting aside the order of dismissal and directing reinstatement. Learned counsel further submits that the respondent-workman remained unauthorizedly absent without submitting any leave application and without obtaining sanction from 24.07.2014 to 10.07.2015 for more than 351 days.
5. Learned counsel for the petitioner submits that the Labour Court has rightly come to the conclusion that there is no explanation for remaining absent from duty without obtaining prior permission and medical documents produced by the respondent are pertaining to his wife and they were prior to his period of absence. Learned counsel would further submit that when the Labour Court has come to the conclusion that there is no explanation for absence and it is without permission, it could -5- NC: 2024:KHC:9383 WP No. 9922 of 2019 not have on the ground of discrimination set aside the order of dismissal and directed reinstatement. Learned counsel further submits that the question of discrimination in the matter of imposition of punishment would not arise since punishment would depend on gravity and nature of the respondent- workman. In the matter of unauthorized absence, it would depend on the period of absence and the explanation that would be provided by delinquent employee. Learned counsel places reliance on the decision of the Division Bench of this Court in W.A.No.94/2015 dated 24.01.2020 and submits that imposing lesser punishment against few employees and extreme punishment to some employees would not amount to discrimination.
6. Learned counsel submits that this Court by order dated 12.03.2019 issued emergent notice to the respondent and also directed the petitioner-Corporation to reinstate the respondent, subject to the outcome of the writ petition. In pursuance to the interim order passed by this Court, the petitioner-Corporation called upon the respondent to report to duty with certain documents. Though the said call letters were -6- NC: 2024:KHC:9383 WP No. 9922 of 2019 served on the respondent, the respondent remained absent and even to this date, he has not reported to duty.
7. Learned counsel would contend that for proved misconduct of unauthorized absence for nearly a year, appropriate punishment would be dismissal. Learned counsel places reliance on the decision of the Division Bench of this Court in W.A.No.387/2022 dated 09.11.2022, wherein the order of dismissal for unauthorized absence for nearly one year is upheld. Thus, learned counsel would pray for allowing the writ petition by setting aside the impugned Award.
8. Having heard the learned counsel for the petitioner- Corporation and on careful perusal of the writ petition papers, the only point which falls for consideration is as to "Whether the impugned Award requires interference?" Answer to the said point would be in the 'Affirmative' for the following reasons:
9. The Charge Memo dated 29.11.2014 was issued to the respondent-workman alleging unauthorized absence i.e., without submitting leave application and without getting sanction, the respondent remained absent from 24.7.2014 to 10.7.2015. The respondent-workman failed to submit any reply -7- NC: 2024:KHC:9383 WP No. 9922 of 2019 and also failed to appear before the Enquiry Officer. The Enquiry Officer apart from issuing notice through registered post, also issued paper publication in 'Vijayavani Kannada' daily newspaper dated 20.03.2015. Based on the report of the Enquiry Officer, the petitioner-Corporation passed order of dismissal dated 10.7.2015. The respondent-workman raised dispute in I.D.No.10/2016. The Labour Court under order dated 21.11.2017 held that the enquiry held by the petitioner- Management against the respondent-workman is fair and proper. Under impugned Award, the Labour Court has categorically come to the conclusion that the first party workman i.e., respondent herein has remained absent to his duty without prior permission and without prior sanction of leave. It has also come to the conclusion that the medical documents i.e., Exs.P1 and P2 pertains to his wife and they were prior to his period of absence. Ex.P3 also pertains to his wife and it is also prior to alleged period of absence. Based on the material on record, the Labour Court has rightly given a finding that the charge of misconduct on the part of first party is established. The Labour Court under impugned award committed a grave error in setting aside the order of dismissal -8- NC: 2024:KHC:9383 WP No. 9922 of 2019 and directing reinstatement only on the ground of discrimination in imposition of punishment of dismissal. Further, the Labour Court has also noted that punishment should be proportionate to the misconduct and the dismissal of the respondent for unauthorized absence is disproportionate. Normally, in the matter of imposition of punishment, after enquiry, the imposition of appropriate punishment would depend on the proved misconduct and the nature and gravity of the charge. Though the Corporation imposed lesser punishment on certain other workman for alleged absenteeism, the same cannot be applied in the present case, since the absence of respondent-workman is for nearly one year. Moreover, the explanation of the respondent-workman is not satisfactory and the Labour Court has categorically found that the medical documents produced by the respondent-workman relates to his wife that too prior to his period of absence. The Division Bench of this Court had an occasion to examine the contention of discrimination in imposing punishment by the petitioner- Corporation and while examining the said contention, the Division Bench at Paragraph Nos.21 to 23 has held as follows:
"21. Thus, even if the Corporation has passed the similar orders for identical misconduct of production of -9- NC: 2024:KHC:9383 WP No. 9922 of 2019 false transfer certificate, it appears that they were 7 stray cases in comparison to 160 drivers, who had been terminated for misconduct of production of false transfer certificate. We are unable to accede to the contention of the learned Counsel for the respondent - workman that the action of the Corporation is in violation of Article 14 of the Constitution of India, on the ground that the Corporation has practiced discrimination against the respondent insofar as it pertains to imposition of penalty. The facts of each case are different as narrated above.
22. It is trite law that equality is a positive concept, there cannot be negative equality in law. Merely because in few cases, the Corporation has viewed the misconduct leniently, that would not give a right to delinquent to seek the similar orders by this Court. It would be apposite to refer to the judgment of the Hon'ble Supreme Court in the case of UNION OF INDIA VS. INTERNATIONAL TRADING CO. reported in (2003) 5 SCC 437, wherein at paragraph No.13, it is held as under:
"13. xxxxx A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the
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NC: 2024:KHC:9383 WP No. 9922 of 2019 Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality. "
23. In terms of the afore-extracted judgment of the Hon'ble Supreme Court, it would be clear that the stray cases of imposition of minor penalty was an illegality by the petitioner-Corporation and that cannot be claimed by the respondent - workman invoking the principle of discrimination and parity in treatment insofar as imposition of the penalty. This plea of the respondent- workman that the Corporation has practiced invidious discrimination in imposition of penalty cannot be accepted.
Hence, we find that the action of the petitioner - Corporation was not discriminatory in imposing lesser punishment against a few workmen and extreme punishment of dismissal against the respondent - workman.
Accordingly, point No.1 is answered against the respondent-workman."
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NC: 2024:KHC:9383 WP No. 9922 of 2019 The Division Bench of this Court has made it clear that in imposing lesser punishment against a few workmen and extreme punishment of dismissal, was not discriminatory.
10. The other contention which needs consideration is whether the punishment of dismissal for remaining unauthorized absent for 351 days is proper or proportionate to the nature and gravity of charge. The respondent remained unauthorized absent without submitting leave application and without getting sanction. The Labour Court has given a categorical finding that the first party i.e., respondent herein has remained absent from his duty without obtaining prior permission and without proper sanction of leave and has held that charge of misconduct on the part of the first party is established. There is also a finding that medical documents produced by the respondent-workman relates to his wife and it would not relate to the respondent that too prior to the period of his absence. Remaining unauthorized absent without leave and without sanction is misconduct. The Division Bench of this Court in W.A.No.387/2022 was considering a case of dismissal on the allegation of unauthorized absence for nearly one year, while upholding the order of dismissal has observed that
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NC: 2024:KHC:9383 WP No. 9922 of 2019 menace of unauthorized absence which has now reached malignant proportion is to be curtailed and the Disciplinary Authority will have to sanction rigorous and deterrent punishment. It has also further observed that the punishment of dismissal imposed by the Disciplinary Authority is proportionate to the nature of misconduct.
For the reasons recorded above, the writ petition is allowed. Impugned Award dated 04.07.2018 in I.D.No.10/2016 on the file of the Principal District and Sessions Judge, Tumakuru, is set aside.
Sd/-
JUDGE SMJ List No.: 1 Sl No.: 38