Karnataka High Court
Laxman S/O. Vishnappa Talawar vs The Management Of Nwkrtc on 17 July, 2023
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2023:KHC-D:7280
WP No. 104614 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 17TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
WRIT PETITION NO. 104614 OF 2021 (L-RES)
BETWEEN:
LAXMAN S/O. VISHNAPPA TALAWAR,
AGE. 57 YEARS,
R/O. AT. & POST. SANGRESHKOPPA,
TQ. SAUNDATTI, DIST. BELAGAVI-591126.
... PETITIONER
(BY SRI. SANTOSH B MANE, ADVOCATE)
AND:
THE MANAGEMENT OF NWKRTC,
DHARWAD DIVISION,
R/BY THE DIVISIONAL CONTROLLER,
VISHAL DHARWAD DIVISION, DHARWAD-580008.
NINGAPPA ... RESPONDENT
PATTIHAL (BY SRI. S C BHUTI, ADVOCATE)
Digitally signed by
VISHAL NINGAPPA THIS WRIT PETITION IS FILED UNDER ARTICLES 226
PATTIHAL
Date: 2023.07.19 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
11:36:32 +0530
ISSUE A WRIT IN THE NATURE OF CERTIORARI AND QUASH
THE IMPUGNED JUDGMENT DATED 18.06.2019 PASSED BY THE
LEARNED PRESIDING OFFICER, LABOUR COURT, HUBBALLI IN
KID NO.33/2017 VIDE ANNEXURE-M AND CONSEQUENTLY
ALLOW THE CLAIM PETITION OF THE PETITIONER AND GRANT
THE RELIEF AS PRAYED FOR.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC-D:7280
WP No. 104614 of 2021
ORDER
1. The petitioner, who was working as a Driver in the respondent-Corporation is before this Court assailing the award dated 18.06.2019, passed by the Labour Court, Hubballi in proceedings bearing KID No.33/2017, vide Annexure-M.
2. Heard the learned counsel appearing for the parties.
3. The petitioner was appointed as a Driver by the respondent-Corporation in the year 1999 and subsequently his appointment was also regularized by the respondent-Corporation. On the allegation that the petitioner was unauthorizedly absent for the period from 29.05.2016 to 15.09.2016, a charge sheet dated 22.09.2016 was issued to the petitioner, for which he had submitted a reply. Thereafter, an enquiry was held against the petitioner and the Enquiry Officer subsequently filed a report that the Corporation had proved the charges against the petitioner. Based on the said report, the -3- NC: 2023:KHC-D:7280 WP No. 104614 of 2021 respondent-Corporation had passed an order, dated 25.04.2017 dismissing the petitioner from service. Assailing the said order of punishment, the petitioner had approached the Labour Court, Hubballi by raising a dispute under Section 10(4-A) of the Industrial Act, 1987. The Labour Court vide the impugned award, dated 18.06.2019 has dismissed the said claim petition and confirmed the order of punishment passed by the respondent- Corporation. Being aggrieved by the same, the petitioner is before this Court.
4. Learned counsel appearing for the petitioner submits that though the petitioner had offered valid reasons for his absence, the respondent-Corporation has failed to consider the same. He submits that even before issuing the charge sheet, the petitioner had submitted a representation seeking an alternative lighter job in view of his disability and considering the fact that the petitioner had suffered visual disability, the respondent had issued a communication at Annexure-B1, dated 31.08.2016 -4- NC: 2023:KHC-D:7280 WP No. 104614 of 2021 informing the petitioner that his request for alternative lighter job is under consideration. Thereafter, the charge sheet has been issued and on the basis of the enquiry report, an order of punishment was erroneously passed against the workman. He submits that since the petitioner suffers from 45% visual disability, he was not in a position to discharge his duty as a Driver and the respondent- Corporation without appreciating this aspect of the matter has erred in dismissing the petitioner from service.
5. Per contra, learned counsel appearing for the respondent-Corporation has argued in support of the impugned order of punishment and the award passed by the Labour Court and submits that the petitioner has belatedly raised a plea of physical disability. He submits that in an identical situation, considering the past history of the workman, this Court has upheld the order of punishment passed by the Corporation against the workman and has placed reliance on the order passed in W.P. No.106077/2015.
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6. This matter had come up for hearing before this Court on 15.06.2023. Since learned counsel for the respondent-Corporation had disputed about the alleged visual disability suffered by the petitioner, this Court had directed the petitioner to appear before the District Medical Board, Dharwad for medical check up and pursuant to the said order, the petitioner - workman has approached the District Medical Board, Dharwad and after physical verification, the Medical Board has issued a certificate to the effect that the petitioner is suffering visual disability to the tune of 45%. The said certificate is produced by the petitioner, before this Court along with the memo dated 04.07.2023. The memo and the certificate are taken on record.
7. The material on record would go to show that, even prior to issuance of the charge sheet with an allegation that the petitioner had unauthorisedly absented himself for the period from 29.05.2016 to 15.09.2016, the petitioner had submitted a representation to the -6- NC: 2023:KHC-D:7280 WP No. 104614 of 2021 respondent-Corporation on 01.08.2016 seeking for an alternative lighter job on the ground of his visual disability. After appreciating his request and also considering the medical certificate produced by him, the respondent- Corporation had issued an endorsement on 31.08.2016 stating that the petitioner's request for providing him an alternative lighter job would be considered provided he submits a medical certificate in Form No.3 from the District Medical Board. It is the case of the petitioner that such a medical certificate was produced by him subsequently and a copy of the said certificate dated 30.11.2016 is produced by him before this Court. Learned counsel for the respondent had however disputed the genuineness of the said document on the ground that the original of the said document was not made available to the respondent-Corporation. It is under these circumstances, this Court had directed the petitioner to subject himself for medical examination and pursuant to such an order passed by this Court, the petitioner has subjected himself for medical examination and the District -7- NC: 2023:KHC-D:7280 WP No. 104614 of 2021 Medical Board has reiterated the very same percentage of visual disability to the petitioner, even in the present medical certificate, which is produced along with the memo by the petitioner.
8. Since, the petitioner had suffered visual disability and he had submitted a representation with the prayer to provide him an alternative lighter job, the respondent, who had assured to consider his request, provided he furnishes a medical certificate in Form No.3 from the District Medical Board was not justified in issuing a charge sheet to him subsequently on the ground of unauthorized absence. The material on record would go to show that the petitioner had approached the District Medical Board and subjected himself for physical examination and the certificate in Form No.3 was issued by the District Medical Board on 30.11.2016, vide Annexure-E. In spite of such materials available on record, it appears that the respondent-Corporation has proceeded with a domestic enquiry against the petitioner and based -8- NC: 2023:KHC-D:7280 WP No. 104614 of 2021 on the report filed by the Enquiry Officer, an order of punishment dismissing the petitioner from service has been passed. Unfortunately, the Labour Court has also failed to appreciate this aspect of the matter and has proceeded to confirm the order of punishment passed by the respondent-Corporation against the petitioner on the ground that the petitioner had not furnished satisfactory reason for his unauthorized absence. The Labour Court has virtually made an observation that the visual disability of 45% suffered by the petitioner cannot be believed. The Labour Court has also further taken into consideration the past history of the petitioner and has confirmed the order of punishment passed by the respondent-Corporation.
9. Since the petitioner had offered a satisfactory explanation for his absence for the period from 29.05.2016 to 15.09.2016, the respondent-Corporation was not justified in passing an order of dismissal against him. The material on record would go to show that much prior to issuance of charge sheet against the petitioner, he -9- NC: 2023:KHC-D:7280 WP No. 104614 of 2021 had given representation to the respondent-Corporation about his visual disability and had prayed for an alternative lighter job. The respondent-Corporation instead of providing him an alternative lighter job pending consideration of his request, appears to have been insisting upon him to work as a Driver. When the petitioner was complaining of his visual disability, the respondent-Corporation could not have asked him to perform his duty as a Driver. Because of his disability, if the petitioner has refused to perform his duty as a Driver, and the same cannot be found fault with.
10. Under the circumstances, I am of the considered view that the impugned order of punishment passed against the petitioner by the respondent- Corporation and the award passed by the Labour Court confirming the said order of punishment are not sustainable in law. The order passed by this Court in W.P. No.106077/2015, disposed off on 8th June 2023 would not be applicable to the facts and circumstances of the present
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NC: 2023:KHC-D:7280 WP No. 104614 of 2021 case for the simple reason that the workman in the said case had not suffered any disability, as a result of which he was not in a position to perform his duty. It is trite that the orders or judgments can be relied as precedents only if the same are applicable to the facts and circumstances of the case. Under the circumstances, I am of the considered view that the impugned order of punishment and the impugned award passed by the Labour Court confirming the said order of punishment cannot be sustained. Accordingly, the following:
ORDER The writ petition is allowed. The impugned award passed by the Labour Court at Annexure-M, dated 18.06.2019 is quashed. Consequently the order of punishment, dated 25.04.2017 issued by respondent is also quashed. The respondent-Corporation is directed to reinstate the petitioner with 50% back wages and with continuity of service. The petitioner is also entitled for all other consequential service benefits. In the event the
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NC: 2023:KHC-D:7280 WP No. 104614 of 2021 petitioner makes a representation with a request to provide him an alternative lighter job, the respondent shall consider the same taking into consideration the observations made by this Court hereinabove.
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JUDGE Vnp*/Ct:Bck List No.: 1 Sl No.: 3