Karnataka High Court
Sri. Jagannath S/O. Narasinha Ugarnkar vs The Management Of Nwkrtc, Uttarkannada on 5 July, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 05TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.NO.71523/2012 (L-KSRTC)
C/W
W.P. NO.66795/2010 (L-KSRTC)
IN W.P. NO.71523/2012
BETWEEN
SRI. JAGANNATH
S/O. NARASINHA UGARNKAR,
AGE: 55 YEARS,
OCC: NIL,
R/O.GANDHINAGAR,
SIRSI (UTTAR KANNADA)
... PETITIONER
(BY SRI. M.H. BHAT AND SRI. RAVI HEGDE, ADVS.,)
AND
THE MANAGEMENT OF
NWKRTC, UTTARKANNADA
DIVISION, REPTD BY ITS DIVISIONAL
CONTROLLER,
UTTARKANNADA DIVISION,
SIRSI.
... RESPONDENT
(BY SRI. J.S.SHETTY, ADV.,)
:2:
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227
OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
AWARD PASSED BY THE ADDITIONAL LABOUR COURT,
HUBLI IN KID NO.27/2004 DATED 01.02.2010 TO THE
EXTENT THE PETITIONER IS AGGRIEVED RELATING TO
DENIAL OF FULL BACK WAGES AND WITH HOLDING TWO
INCREMENTS WITH CUMULATIVE EFFECT AND OTHER
CONSEQUENCES BENEFITS, WHICH IS PRODUCED AS
ANNEXURE-D ETC.,
IN W.P. NO.66795/2010
BETWEEN
NORTH WEST KARNATAKA ROAD TRANSPORT
CORPORATION,
BY IT'S THE DIVISIONAL CONTROLLER,
UTTARA KANNADA DIVISON,
REPRESENTED BY ITS LAW OFFICER,
SMT. PREMA BANAVI.
... PETITIONER
(BY SRI.J.S.SHETTY, ASSOCIATES)
AND
JAGANNATH NARASINHA UGARNKAR,
AGE: 53 YEARS,
R/O.GANDHI NAGAR,
SIRSI, DISTRICT: UTTARA KANNADA.
... RESPONDENT
(BY SRI. M.H.BHAT & RAVI HEGDE, ADVS.,
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227
OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
AWARD DATED 01.02.2010, PASSED BY THE ADDITIONAL
:3:
LABOUR COURT, HUBLI IN KID. NO.27/2004 COPY OF
WHICH HAS BEEN PRODUCED AT ANNEXURE-A ETC.,
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
These two writ petitions are directed against the judgment and award passed by the additional Labour Court, Hubli in KID No.27/2004 dated 01.02.2010 whereunder, the order of dismissal dated 30.09.2004 has been set aside and workman has been ordered to be reinstated with continuity of service and denying backwages. In substitution to the order of dismissal, labour Court has directed the management to withhold two increments of claimant workman with cumulative effect as punishment.
2. Heard Sri. Ravi Hegde, learned counsel appearing for the petitioner-Workman and :4: Sri.J.S.Shetty, learned counsel appearing for NWKRTC (Corporation).
3. Parties are referred as per the rank before the Tribunal.
4. Workman was appointed as a driver in the Corporation during 1986 and Articles of charge came to be issued for unauthorised absence from 25.09.1999 to 19.03.2000. Being not satisfied with the reply submitted by the workman, Enquiry Officer was appointed and an enquiry was conducted. Report came to be submitted by the Enquiry Officer holding that charges imputed against workman are proved. Based on the said report, Corporation passed an order of dismissal on 30.09.2004. Aggrieved by the said order of dismissal, petition under Section 10(4-A) of Industrial Disputes Act (for short 'the Act') came to be filed by the workman before the labour Court by filing claim petition reiterating the objections field to the Articles of charge. :5: Corporation on service of notice filed it is counter statement denying the contentions raised in the claim statement. Additional labour Court, Hubli on the basis of the pleadings of the parties, framed the following ISSUES
1. Whether the Departmental Enquiry held against the petitioner claimant is fair and proper?
2. Whether the respondlent management is justified in dismissing the petitioner claimant from service by its order dated 30.09.2004?
3. What order?
5. Workman got himself examined as a witness and he did not produce any documents nor any witnesses were examined on his behalf. On behalf of respondents 18 documents were got marked and labour Court held that enquiry conducted against the workman is fair and proper. On the issue regarding :6: proportionality of punishment imposed, labour Court was of the view that punishment was harsh and disproportionate to the gravity of the charges imputed against the workman and in exercise of power vested under Section 11A of the Industrial Disputes Act it interfered with the quantum of punishment imposed by the Disciplinary Authority and in substitution to the order of dismissal, labour Court directed the Corporation to withhold two increments to the workman with cumulative effect. The labour Court also held that the workman is not entitled for backwages i.e. from the date of dismissal till the date of award. It is this award which is assailed both by the Corporation as well as workman.
6. Having heard the leaned advocates appearing for the parties and on perusal of the case papers, it would emerge from the records that workman had produced a certificate issued by Dr. K.B. Pawar and :7: Dr.Dinesh Shetty in the domestic enquiry itself. The said certificates was available on record and despite the same being available on record it was not taken into consideration by the Enquiry Officer nor the disciplinary authority. Reply submitted to the findings recorded by the Enquiry Officer came to be marked as Ex.M13 before Labour Court. However, workman had not got marked the medical certificate either before enquiry officer or before the labour Court which was on record. The labour Court while evaluating the evidence has examined these two medical certificates available on record issued by Dr.Dinesh Shetty and another one issued by Dr.K.B. Pawar and found that workman had been advised to take rest and had certified him to be fit to resume duty from 20.03.2000. Though claimant had produced these two certificates along with the defence statement Ex.M-13 for reason best known workman had not got these documents marked before the labour Court as such it came to be examined and evaluated by :8: the labour Court found that it is an acceptable piece of evidence which was available even before the disciplinary authority also.
7. In fact during the course of the hearing of these petitions Sri.J.S.Shetty, learned counsel appearing for the Corporation has made available these two medical certificates. A cursory look of these medical certificate dated 14.03.2002 would indicate that workman was suffering from heart ailment i.e. ischeamic disease and it is for this reason he had been advised to take rest and later on he was certified fit to resume duty w.e.f. 20.03.2000. It is on evaluation of this medical evidence available on record labour Court found that order of dismissal is disproportionate to the gravity of the charges proved and as such in exercise the power under Section 11A of the Act the labour Court on facts has rightly held that penalty of dismissal imposed by the Corporation was highly disproportionate :9: to gravity of charges. It is no doubt true that workman is having a past history of absenteeism for four spells as per Ex.M18. This fact also titled in favour of the Corporation to impose the punishment of dismissal by the disciplinary authority. As noticed hereinabove, labour Court has found on evaluation of medical evidence available on record, the reason for the workman remaining absent unauthorisely there was a justifiable and acceptable ground available to him and as such it held that order of dismissal is disproportionate to the gravity of charge I am of the view that said finding is sound and reasonable and there has been proper evaluation of evidence by labour Court. Learned counsel appearing for the workman would fairly submit that an affidavit of undertaking would be filed before this Court and also before the Corporation that workman would be cautious and would not repeat such acts in future and would strictly abide regulations governing him.
: 10 :
8. It is also required to be noticed that in view of the writ petition having been filed by the Corporation prior to the writ petition of the workman and the workman having not taken steps to obtain suitable orders from this Court would not entitled for backwages during the pendency of the writ petitions i.e. from the date of award till date. In the result, following order is passed:
i. W.P. No.71523/2012 is hereby
dismissed.
ii. W.P. No.66795/2010 is hereby
allowed in part.
iii. The judgment and award passed by the Tribunal insofar as setting aside the order of dismissal dated 30.09.2004 is hereby affirmed as also the order of reinstatement of the workman with continuity of service. However, workman would not be entitled for backwages till date and to that extent only the writ : 11 : petition filed by the Corporation is allowed in part.
iv. The substitution of punishment made by the labour Court is also hereby affirmed.
v. The workman shall file an affidavit
as noticed hereinabove and as
undertaken both before this Court within an outer limit of two weeks from today and before the respondents Corporation at the time of reporting to duty by producing valid and effective driving licence and on production of same, Corporation shall reinstate the workman and pay the current wages.
vi. Workman shall appear before the respondent-Corporation for reporting duty on 22.07.2013 with valid and effective driving licence.
SD/-
JUDGE BS