Karnataka High Court
I M Nagarajaiah vs The Divisional Controller on 26 September, 2019
Bench: Chief Justice, S R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26th DAY OF SEPTEMBER, 2019
PRESENT
THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT APPEAL No. 3217/2018 (L-KSRTC)
BETWEEN:
I.M.NAGARAJAIAH
S/O LATE I.M.SHARANAIAH
AGED ABOUT 59 YEARS
R/A H. BASAVAPURA
HUCHAVVANA HALLI POST
DAVANAGERE TALUK & DISTRICT.
... APPELLANT
(BY SRI.M.C.BASAVARAJU, ADVOCATE)
AND:
THE DIVISIONAL CONTROLLER
KSRTC
TUMKUR DIVISION
TUMKUR - 572 101.
...RESPONDENT
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, THE CONSTITUTION OF INDIA,
PRAYING TO SET ASIDE THE ORDER OF THE LEARNED SINGLE
JUDGE PASSED IN W.P.No. 57222/2013 dated: 23.03.2018.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING 'B'
GROUP THIS DAY, S.R. KRISHNA KUMAR J. DELIVERED THE
FOLLOWING:-
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JUDGMENT
This appeal is directed against the judgment and order dated 23rd March 2018 passed by the learned Single Judge in W.P.No.57222/2013 whereby, the writ petition filed by the appellant herein challenging the judgment and award passed by the Principal Labour Court, Bangalore, in I.D.No.63/2012 dated 31st October 2013 was dismissed.
2. The appellant was working as a conductor in the respondent-KSRTC at Bangalore. The appellant remained absent for a continuous period of 796 days from 16th May 2004 to 21st July 2006. Disciplinary proceedings were initiated against him by the respondent-Corporation leading to his dismissal from service. However, he was subsequently reinstated by the respondent-Corporation taking a lenient view based on sympathy and on humanitarian grounds. However, subsequently, the appellant once again remained unauthorisedly absent from 7th July 2011 onwards. Despite call notices being issued to him calling upon him to report to duty, the appellant did not comply with the demand made therein. -3- Accordingly, articles of charges dated 10th October 2011 were issued against him and after due enquiry, the enquiry officer submitted a report to the effect that the charges leveled against the appellant were duly proved. Thereafter, vide order dated 04th June 2012, the Divisional Controller and the Disciplinary Authority of the respondent-Corporation considered the said report as well as the entire material on record and came to the conclusion that the enquiry was fair and proper, that the appellant had not made out any compelling circumstances to remain unauthorisedly absent and that he had committed a similar misconduct on an earlier occasion when the respondent had taken a lenient view and in the absence of any material to establish the reasons as to why the appellant remained unauthorisedly absent from 7th July 2011 onwards, the report of the enquiry officer deserves to be accepted and the appellant was guilty of misconduct. Further, having regard to the fact that the appellant was guilty of repeated misconduct which would adversely affect the working and functioning of the respondent- Corporation, he concluded that it was essential that the appellant was dismissed from service and accordingly, the -4- aforesaid order dated 4th June 2012 was passed dismissing the appellant from service.
3. Aggrieved by the aforesaid order dated 4th June 2012 passed by the Divisional Controller and the Disciplinary Authority, the appellant approached the Labour court in I.D.No.63/2012 under Section 10(4) (A) of the Industrial Disputes Act, 1947. The respondent-Corporation contested the said matter.
4. The Labour court framed the following issues for consideration:-
5. Based on the claim statement averments and counter statement averments, this Court has framed the following issues on 13.02.2013;
(i) Whether the second party management proves that the domestic enquiry held against the first party is fair and proper?
(ii) Whether the first party applicant proves that the order dated: 04.06.2012 passed by the disciplinary authority removing him from service is perverse and -5- bad in law and as such, the same is liable to be set aside?
(iii) To what relief the first party is entitled?
(iv) What order and award?
5. Before the labour court, one Smt.Reshma Anjum was examined on behalf of the respondent-Corporation and Exhibits M-1 to M-17 were marked in her evidence. The appellant examined himself as WW-1 and did not adduce any other oral evidence.
6. By judgment and award dated 31st October 2013, the labour court answered all the issues against the appellant and in favour of the respondent-Corporation and consequently, dismissed the said petition as devoid of merit. The labour court came to the conclusion that there were material discrepancies between the pleadings and evidence submitted on behalf of the appellant which falsify his contentions that there were compelling reasons for him to remain absent from 7th July 2011 onwards. The Labour court also came to the conclusion that the alleged medical certificates produced on behalf of the appellant were highly discrepant and inconsistent with the other -6- materials on record, apart from the fact that the said medical certificates had not been proved in accordance with law by examining the Doctor, who issued the Certificates. The labour court also noticed that the contention of the appellant that he had applied for leave on account of his alleged ill health had not been established by him. In other words, the labour court recorded a categorical finding of fact that the reasons assigned by the appellant to remain absent from 7th July 2011 onwards on account of his ill health had not been established by any legal or acceptable material. The labour court also took into account that the appellant was in the habit of repeatedly remaining unauthorisedly absent as could be seen from the undisputed fact that on an earlier occasion, he had remained absent for a period of 796 days, despite which, a lenient view was taken in respect of the appellant out of sympathy and humanitarian considerations. Despite this, the appellant repeated the same misconduct once again and as such, he was not entitled to any indulgence whatsoever. Under these circumstances, having regard to the past misconduct of the appellant and indiscipline on the part of the appellant by -7- remaining unauthorisedly absent from 7th July 2011 onwards, it was a case of gross misconduct and gross violation of discipline, which entailed his dismissal from service as rightly held by the disciplinary authority. The labour court has relied upon the following judgments of this Court:-
1. 2013 LLR 312 in W.PO.No.21994/2005 dd:
22.1.2013(Magt. Of M/s.Amazone Exports Pvt Ltd., v/s Secretary Labour, & another, 2013,
2. 2013 LLRD 465 in W.P No.6041/2007(L-
KSRTC., D-22/1/2-12) (Bangalore Metropolitan Transport Corporation, Bangalore v/s B.H.Raju)
3. ILR 2001 kar.4199 (The divisional Controller, NWKRTC., Bagalkot v/s Raghavendra Madhava Katti) Accordingly, the petition filed by the appellant was dismissed.
7. Aggrieved by the said order passed by the labour court, the appellant preferred a writ petition in W.P.No.57222/2013 before the learned Single Judge.
8. After hearing the parties, by the impugned order dated 23rd March 2018, the learned Single Judge came to the conclusion that there was no infirmity or illegality in the orders passed by the disciplinary authority and the labour court, which -8- were based on proper and correct appreciation of the materials on record by assigning cogent reasons. The learned Single Judge also came to the conclusion that there was no perversity or illegality in the said orders and consequently, dismissed the said writ petition.
9. The appellant has urged before us that his absence from 7th July 2011 onwards was due to unavoidable health reasons, in respect of which, he had not only produced the medical certificates for having taken treatment at various hospitals but his leave letters along with the medical certificates sent by him had not been considered by the respondent- Corporation and failure to appreciate, this has resulted in erroneous conclusion. It is also contended that the medical certificates clearly disclose the ill-health of the appellant which compelled him to remain absent and as such, the extreme punishment of dismissal was not only illegal but also amounted to hostile discrimination and unfair labour practice which has not been appreciated by the authorities, the labour court as well as the learned Single Judge. The appellant also contended that having regard to the undisputed fact that the major -9- punishment of dismissal was not imposed upon several other employees of the respondent-Corporation, despite them having similar past history/track record, the punishment of dismissal from service of the appellant was highly unjust, unfair and discriminatory in nature, resulting in failure of justice.
10. We have given our anxious consideration to the materials on record and the grounds urged on behalf of the appellant.
11. The Apex Court in the case of North Eastern Karnataka Road Transport Corporation vs. Ashappa reported in (2006) 5 SCC 137, after reviewing the earlier case law on the aspect of unauthorized absence and the punishment to be imposed for the same, has held as under:-
8. Remaining absent for a long time, in our opinion, cannot be said to be a minor misconduct.
The appellant runs a fleet of buses. It is a statutory organization. It has to provide public utility services. For running the buses, the service of the conductor is imperative. No employer running a fleet of buses can allow an employee to remain absent for a long time. The respondent had been given opportunities to resume his duties. Despite such notices, he remained
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absent. He was found not only to have remained absent for a period of more than three years, his leave records seen and it was found that he remained unauthorisedely absent on several occasions. In this view of the matter, it cannot be said that the misconduct committed by the respondent herein has to be treated lightly.
12. Even in the subsequent judgments in the cases of Om Prakash vs. State of Punjab and others (2011) 14 SCC 682 and Chennai Metropolitan Water Supply and Sewerage Board vs. T.T.Murali Banu (2014) 4 SCC 108, the Hon'ble Apex Court has come down heavily on persons remaining unauthorisedly absent without any compelling reasons and the penalty/punishment of dismissal was proportionate to the gravity of misconduct of the offence of unauthorized absence. As stated supra, in the instant case, apart from the medical certificates produced by the appellant, which were highly discrepant and contain several inconsistencies, the appellant had not examined the Doctor, who issued the medical certificates and as such, the said certificates had not been proved in accordance with law. Apart from his self serving and interested testimony, the appellant had not adduced any other
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evidence to establish the compelling reasons and circumstances for his absence from 7th July 2011 onwards. Despite having contended that he had submitted several leave letters to the respondent-Corporation, even this aspect had not been established by the appellant either before the authorities or the labour court.
13. Further, despite the undisputed past track record of the appellant, which disclosed that he was earlier guilty of unauthorized absence for a period of 796 days which was viewed leniently by the Management, the appellant was guilty of the same misconduct of unauthorized absence once again and he is not entitled to any indulgence whatsoever. The material on record also establishes that the punishment/penalty of dismissal was proportionate to the gravity of the misconduct. The authorities as well as the labour court had considered and appreciated the material on record in a proper manner and rejected the claim of the appellant. Under these circumstances, the learned Single Judge was fully justified in dismissing the writ petition filed by the appellant thereby confirming the concurrent findings of fact recorded by the authorities and the
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labour court, particularly when there was no perversity or illegality or infirmity in the orders passed by them.
14. In view of the aforesaid reasons, we also do not find any reason to interfere with the impugned order passed by the learned Single Judge. Accordingly, the writ appeal is hereby dismissed.
No costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Srl.