Karnataka High Court
Chandrappa Hanumappa Gangannavar, vs The Divisional Controller, on 19 February, 2013
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 19 T H DAY OF FEBRU ARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
WRIT PETITION No.60033 OF 2011 [L-KSRTC]
BETWEEN:
CHANDRAPPA HANUMAPPA GANGANNAVAR
AGE: 45 YEARS, OCC: NIL,
R/AT: GANGAPUR,
TQ: RANEBENNUR-581115
... PETITIONER
(By SRI. PRAKASH ANDANIMATH, ADV. FOR G.R.
ANDANIMATH, ADVS)
AND:
THE DIVISIONAL CONTROLLER
N W K R T C, HAVERI DIVISION,
HAVERI-581110
... RESPONDENT
(By SMT. SUNITHA P.KALASOOR, ADV.)
This Writ Petition is filed under Articles 226 &
227 of Constitution of India praying to quash the
award dated 01.04.2010 in KID No.38 of 2005
passed by the learned Presiding Officer, Labour
court, Hubli (Annexure-N) and issue a writ in the
2
nature of certiorari or any other appropriate writ
or order of dismissal dated 04/05/2005 bearing
No. ªÁ.PÀ.gÀ.¸Á/ºÁ«/²PÀæ±Á/¸ÉéºÁ/142(2003):1145 passed by
the respondent (Annexure-C) and direct the respondent-
management to reinstate the petitioner into service with
full back wages and attended benefits.
This Writ Petition coming for preliminary
hearing in 'B' group, this day, the Court made the
following:
ORDER
The petitioner joined service of the respondent as a conductor in 1985. Subsequently, he was promoted as Assistant Traffic Inspector. He remained absent unauthorisedly for duty between 20.02.2003 to 30.05.2003. An article of charge dated 30.05.2003 was issued, and the petitioner submitted a reply dated 12.06.2003. Enquiry Officer and presenting officers were appointed on 15.07.2003 by ordering a domestic enquiry. After conducting enquiry, the enquiry officer submitted a report dated 24.01.2005, a copy of which was furnished to the petitioner on 04.02.2005 along with a show cause notice, to which the petitioner submitted a reply on 3 21.02.2005. The disciplinary authority, by an order dated 04.05.2005, dismissed the petitioner from service of the corporation. The order of dismissal gave rise to an Industrial Dispute and the petitioner filed an application under section 10(4-A) of the I.D. Act 1947 (As amended by Karnataka Legislature). The claim petition was resisted by the management by filing a counter statement. Based on the pleadings, three issues were raised. Issue No.1 was treated as a preliminary issue and Ex.M1 to M13 were marked on behalf of the management. By an order dated 02.01.2007, said Issue No.1 was answered in the negative. The case has been posted for evidence with regard to other issues and the management examined two witnesses and marked further exhibits. The petitioner himself got examined and marked four exhibits. The Labour Court on appreciation of the evidence brought on its record by the parties, arrived at a finding that the petitioner remained unauthorisedly absent for duty between 20.02.2003 to 30.05.2003. The absence was 4 held as a serious misconduct and the punishment imposed was found not disproportionate to the charged misconduct and as a result, issue No.2 was answered in the affirmative and the petition was dismissed by an award dated 01.04.2010. This writ petition is directed against the said award.
2. Sri. G.R. Andanimath, the learned advocate for the petitioner firstly contended that since the petitioner was down with stomach ache, he informed the same to the higher authority over telephone and also submitted a leave application through his friend Siddappa Yathnalli and in the circumstances, the finding recorded that there was unauthorized absence from 20.02.2003 to 30.05.2003, without applying leave and without seeking permission from the higher officer is perverse and illegal. Secondly, the absence being on unforeseen grounds and the management having taken into consideration eight previous instances of unauthorized absence, as against the 5 finding of the Labour Court with reference to Ex.M14 that the petitioner was involved in two cases prior to the present incident, non exercise of power under section 11-A of the Act shows that the matter having not received lawful consideration. Reliance was placed on the decision in the case of Chairman-cum-Managing Director, Coal India Ltd., and other, V/s Mukul Kumar Choudhuri & others, reported in AIR 2010 Supreme Court 75. Learned counsel contended that the punishment imposed by the management and upheld by the Labour court being shockingly disproportionate, interference is warranted.
3. Smt Sunitha P. Kalasoor, learned advocate appearing for the respondent, on the other hand contended that it was not for the first time that the petitioner was absent for duty and was guilty of unauthorized absence. Learned counsel submitted that the misconduct having been proved before the Labour Court and the falsity of the case of the workman having been 6 clearly established, the Labour Court is justified in passing the award, dismissing the claim petition and upholding the order of dismissal passed by the management. She submitted that petitioner is a habitual absentee and the petitioner being in the cadre of Assistant Traffic Inspector cannot remain absent unauthorizedly for a continuous period of more than three months. She submitted that Ex.M14 is not under challenge and shows that the petitioner had history of similar misconducts, in respect of which, minor punishments were imposed and there being no improvement, the order of dismissal of service was passed, which being not shockingly disproportionate, the Labour Court is justified in holding that the order of dismissal passed by the disciplinary authority warrants no interference.
4. Perused the records. In view of the rival contentions and record of the case, the point for consideration is :-
7
"Whether the impugned award passed by the Labour Court is perverse, illegal and warrants any interference?
5. The petitioner while deposing as WW.1 has admitted that he did not attend to duty between 20.02.2003 to 27.05.2003. According to him, he was ill and had submitted Ex.W3. He has further said that, he sent a leave application through his friend Siddappa Yathnalli. He has admitted that, previously, in eight cases, for unauthorized absence, action was taken against him. Ex.W1 is a telephone receipt. Ex.W2 is a OPD slip dated 23.02.2003. Ex.W3 is a certificate with regard to petitioner having worked between 04.02.2004 to 09.02.2004. The petitioner has worked under MW.1, the Depot Manager at Haveri Depot, who has said that, if the petitioner has to go on leave, he should have informed him and that the petitioner remained absent to duty unauthorizedly with effect from 20.02.2003. MW.1 has said that no leave application was submitted and that he sent a report-Ex.M1, to the Divisional Controller. MW.1 8 has further stated that, for finding out the cause for absence of the petitioner, when he went and enquired, the petitioner was not available at the residence. Though it has been suggested to PW1 that, over phone request was made for leave, same has been denied. It is strange to find that a suggestion has been made to the effect that on 17.03.2003 the petitioner went to Depot and submitted to MW.1 a leave application. MW.1 has denied the said suggestion. It has been suggested to MW.1 that during the period of absence of the petitioner, he had undergone surgery. MW.1 has stated that he was not aware of petitioner having undergone any surgery. The case of the petitioner is totally inconsistent. The case of the petitioner that he had sent the leave application through his friend Siddappa Yathnalli, has not been established by examining Siddappa Yathnalli, much less producing any acknowledgement with regard to submission of leave application. The claim made that the request for leave was sought over telephone has not been established and 9 from Ex.W1 such an interference cannot be drawn. Though, it is suggested to MW.1 that the petitioner had undergone surgery during the period of absence, Ex.W2 shows that it was only an outpatient slip of 23.02.2003. No material whatsoever has been produced in proof of the petitioner being ill and having obtained treatment during the period of long absence of more than 3 months.
6. The evidence of petitioner-WW.1 and the evidence of management produced through MW.1 and MW.2 has been correctly appreciated by the Labour Court. The finding recorded by the Labour Court with regard to charge of unauthorized absence being with reference to the evidence brought on its record by both the parties, is neither perverse nor illegal. There being no denial of absence for duty with effect from 23.02.2003 to 30.05.2003, the burden of proof was on the petitioner, which he has failed to discharge. The finding recorded by 10 the Labour Court with regard to charged misconduct is justified.
7. The Labour Court, in para 13 of its award, has found no justification to interfere with the punishment. The petitioner while deposing as WW.1 has admitted that prior to the incident in question, there were 8 cases of unauthorized absence and action was taken against him. The misconduct, held as established by the Labour Court, is in respect of long unauthorized absence for the duty. On account of history sheet and also admission of the petitioner-WW.1 that there were 8 earlier cases against him with regard to unauthorized absence, it shows that the petitioner is a habitual absentee. The petitioner holding the post of Assistant Traffic Inspector ought to have submitted a leave application and obtained the sanction. The period of absence is continuous and was for more than three months. For having taken treatment, if any, for such a long period, no material has been produced. In the 11 circumstances, there is nothing wrong in the disciplinary authority loosing the confidence on the employee and dismissing him from the service.
8. The power under section 11-A of the Act cannot be exercised by the Labour Court in a routine manner. The power under section 11-A of the Act has to be exercised judiciously by the Labour Court and it could have interfered with the decision of the management, only when it is satisfied that the punishment imposed by the management is wholly and shockingly disproportionate to the degree of the guilt of the delinquent. The Labour Court has not found that it is a case wherein punishment imposed can be held as shockingly disproportionate to the proved charge.
9. The decision in the case of Mukul Kumar Chowdhuri (supra), on which reliance was placed by the learned counsel for the petitioner, has no application to the instant case. In the said case, the workman had been 12 sanctioned leave up to a certain period and after expiry of the sanction of leave, he did not return to duty and when a charge sheet was issued, the workman submitted resignation, which was not accepted and as a result, he joined duty. Despite the said circumstances, the management having proceeded against the workman, it was held that the action of the employee was unreasonable.
10. When the factual background of the instant case, noticed supra, is taken into consideration, the Labour Court is justified in refusing to interfere with the punishment imposed by the management, in as much as, the petitioner being an Assistant Traffic Inspector, could not have remained absent for duty continuously for a period of more the three months, without any justification, more particularly, when the minor punishments had been imposed on him earlier, for similar misconducts, with a view to give opportunity to improve his conduct. The 13 petitioner having not shown any improvement in his conduct and unauthorized absence for duty being for a long period and for not a justified reason, the action taken by the management, which was upheld by the Labour Court is not perverse or illegal. The impugned award does not suffer from any legal infirmity.
In the result, the writ petition being devoid of merit is dismissed with no orders as to costs.
Sd/-
JUDGE KSJ/-