Karnataka High Court
S.B.Ramalingappa vs The Divisional Controller on 20 January, 2010
Bench: Manjula Chellur, A.N.Venugopala Gowda
IN THE HIGH COURT oi= KARNATAKA AT BANGA__L_ORE
DATED THIS THE 20""? DAY OF JANUARY,
PRESENT 4.'
THE HOAVBLETARSJuSTicEiAANJoLAt3iEtpJR,*
THE i-fON'BLE MR. JUSTICE A{N,VEN"UGO~PALA (Sow.pA--_
VVRTTAPPEALiMi3?95/2do9(LgKSRtgjw--'
BETWEEN:
S.B. Ramalingappa,
S/o. late Basappa,
Aged about 4_7"'~,/_ears','
OCC:ExvCOnduE@3ni<SRTCg*-mW
R/o;._Agrah'avlr,a Ex¥teri--sVio~nV, _
Ba n ava i"a Post', ATS i»!<ve':'E:_ Ta l u' k,
Hassah,Distri'ct_.'-fr 4'
'V,l. ._ , ._~ .. APPELLANT
(By STE, iVl.C,Py'atl, Adv.)
AMoi*
it Fhle {§'i'a.<iSioViT2.al1~~ Controller,
C..hiclgri'ia_§alur Qivision,
Chi§;l('i'1fiaga|Lir.
" RESPONDENT
This Writ Appeal is filed under section 4 of the
Karnataka High Court Act praying to set aside the order
passed in the Writ Petition No.S371/2008 dated
30/03/2009.
This appeal coming on for preliminary hearing this
day, A.N.VENUGOPALA GOWDA, J, delivered the following:
JUDGMENT
There is deiay of 176 days in fiiing thisg.--appeal. Though the award was passed by the E_abourV:'t'Z:ho;d:rtv».,on 22.02.2006, the writ petition was filed atte-rfa i.e., 31.3.2008. We have heard'"Sri. vl.'€.arVrs.ed'§« 0' counsei appearing for appeliant :o.n0"the"_,me_rits"
appeal. Since there is no..,r9"tound' mad,e"._,oij~t"even with regard to the meritsof the-"i°na_tte"r'-ifor int'er.fe.rence in the impugned orders, forthe"reasoni'-t_o.,,eb'e, indicated herein below, __~.iieVV'd'ee._i_hait'»tjii,n__ecessary to issue notice of this appeai=._to.the=resi3on"dent to condone the deiay and we di:;s'p'0s,e of' ti:e,_:rn'atter on merits. ,,'C:ha~iienge in this appeai is to the order passed by "the ieetdxediii singie Judge dated 3032009 dismissing the writ petition. In the writ petition, the chaiienge was to an x'a"\i'e.i,ard made by the Labour Court rejecting the appiication filed under s.10 (4--A) of the industries Disputes Act, 1947 ('the Act' for short) to set aside the order of dismissai dated 23.5.2001 passed by the respondent -- Management /I' and to direct reinstatement into service with baci:--.._wages and consequentiai benefits.
3. Appeiiant was a conductor Corporation. He remained a'bs»ent'..from:' -di'it-y2.,_w'itho'ut 7 appiying for sanction of leave an'd'obtainin.g;yt'h'e"sanActio'n.g Articles of charge dated i"3;4_.2000"*iiya'sr by the Management to the. wh_rknfran--." A-i\ioV're_piy was submitted to the articles of charger Management appointed a.ri"egn:C§--uiry__ ofificer into the aliegations of rniscondriivcit.ifeyeijge'd-:5§.a'inst the workman in the charge sheet. "'--E_nquiry'_was»' by the authority and report of miscoriduct submitted to the Discipiinary Authority. .A 1'Coi:sVi'd:ei'in.g~-the enquiry proceedings, Discipiinary Authority appeiiant guiity of misconduct and dismissed a'.ppei'iVa.nt"f'rom service by an order dated 23.5.2001. Said A * ardenwas questioned by filing an appiication under $3.10 °-:'(4?~:A) of the Act, in the Labour Court at Chikmagaiur. The "iappiication was contested by the Management. Labour Court raised the issues for consideration. It heid that, the W domestic enquiry heid against the workman, w.a"sr,.f_ai:r"~,and proper. Considering the further evidence piaced,ionfrtegcocrdv. by the workman by e><amihlh.g~~ producing E><s.\/V1 to W5, the learriield':Pr--esi_din:g the Labour Court held that,._v:i'r.~.,.the factswagndcircuimsjtanceisll of the case, the iVla_nagenjent""wa's_,_justifi'ed_irfdismissing the workman from llarflregsuit, the application was rejected'._"E3_aid iorder:twa'st.,V:p.ut Vi'.r1«.:c9':'allenge in the writ petition.__. the .facts -andvvcir'cuvn1stances of the case andaffindi'_rig5t..hat:,3w.Vttielunauthorised absence was for more than done' year,é'lilo'i.di'r*.g:"that the order of dismissal is just aridvpgropelr i.an'd7doe's riot call for interference, the learned _VS'in.gie'Liu'ld.ge dlsnnissed the -writ petition. "*?.i',..,_._Sr;i'~""iV3.C.Pyati, learned counsel appearing for a."ppe5..Fa.n't'wouEd contend that, the Eearhed Presiding Officer it of the" Labour Court and the learned Single Judge, have not '.V'co*nsidered the matter in the proper perspective and hence, the impugned orders are bad and iiabie to be set aside. Learned counsei, alterraativeiy, contended that, the K ¢_,..r"' order of disrnissai imposed is harsh and dispro:po:'rtiiO'nate and that appellant and his famiiy members subjected to great hardship and_.ag_ony ;and over age, he is unable to get :any1'_'_ai~tern'ate _:ernVprlVoyfr}ent and hence, the Labour Couirtkand the:iearnediSi'nrg.ie;Judge' ought to have appiied the p.rdvisio.ns u.ndier_.gSVr,,if1--A of the Act and moulded the"'-relief; gfuirnce-Vrt:h.e'lsame has not been done, learned' cour3s'e'l" this Court may mould 'V I
5.--. ' 'tt..e-..af0rels,a'i"d. background and the contentions, the poi'rst,__f0rvcVt5nside»rati~on is, "whether the respondent has es_%l;a'blti~shed Vntiievvmislconduct alleged against appeilant and punishment of dismissal imposed is harsh and ~.
.VxPrior to the issue of the order of dismissai dated 2 '2'3,.&5.iOO1, domestic enquiry was held. Opportunity of hearing was granted to appeilant by the enquiry officer. ' Based on the record of enquiry including the report of the enquiry officer, the order dated 23.5.2001 was passed by X the Disciplinary Authority, dismissing the service. The holding of domestic enquiry.waus':~~ai'|e.ged to"'o.e not fair and proper in the appiicatien",_fi'iecE--.,ta-e'fo:ere,__t'l'ie ' Labour Court. The said aspect vira.stried iavlipreliieniriarye issue. Considering the evid'en_c'e of workman and that of the Mana9ern_ei1t dvocurnents as at Exs.M1 to M25, the a finding that, the There is no reason of which, we cannot tai<e_fa"_V one arrived at by the iearnled «Pf the Labour Court in holding that-V, eethea d.ivsCiplina'ryT enquiry is fair and proper. The _fi'n'din"g recordedwhais not been shown to be either arbitrary V ._or pe:rv.erset~,._r}nuch less illegal. fiiefore the Labour Court, the workman has deposled and has produced Exs.W1 to W5 to establish his if 'r_ca"se that, despite the finding on the legality of the enquiry, he is entitled to relief. Labour Court has adverted to the evidence both orai and documentary and after appreciation of material facts and circumstances, held that, there is nothing material placed on record by the"w,ci--tk'man to justify his absence from duty and that by the workman, have remainedLi.nprc:_ved."5fAppe4_l_ian't_ workman could not have riemfineia obtaining prior sanction of .le'a..ve. A"i*le_ wasv~,di's_chalrg'ing an essential work. Re.spond,e.nt"',i._is--._,_ a .' 'pu.biic_,5 transport organisation and haslltoahr-un--for the benefit of the public. appeliant has not been' of any compelling circumstances _ai3id for"~«.oniy_'short duration. Even if any such 'ci,rc'u,mstanc.esthere, nothing prevented the workmanu'from"appxl'ying for ieave, produce the proof in .Vsuppo'rt dfirthe period of absence and satisfy the employer 1 no-fVth.e=.,c'ircumstances under which prior application for Ale.,avev_.-c~o_u,l.dnot be submitted, sanction of leave obtained AA andffduie to forced circumstances he remained absent. In absence of the material evidence to the said effect, the Labour Court has arrived at the conclusion that, there was no justification for the workman to have remained absent. Labour Court has aiso found that, the Corporation was is K justified in taking a decision to dismiss the workman from service on account of his repeated absence frorn"'cE.'uty'.and hence has refused to interfere with the ord='e':r"4_ Labour Court has also noticed t.hat,--.the-'upehryiiioidi,'4of"ab'se'n.ce'5 if was for more than one year.
8. Learned Singie Jud«g:Vei.has ais_o"'no.ticed that, the unauthorised absenc'e~.was_."fo'r"rnore"t_han one year and in the circumstances the a-ward"i'mpu.gji'le.d,nir: the writ petition does not cail 'fo.tri'_'i-nteirferenceLa V record placed before us, no materiali'-has' beehA'pro«d~7uced by appeliant to establish that o'n7:.ac_c'ou_nt of"'for_c_ed circumstances oniy he had remained ' habsent'wit.h'out prior sanction of ieave. Appellant has failed " .to*rnakeV--'o_iiAt' any justification of the absence, that too, for a iohg period of time. Workman had no valid reason to 'rfe«main absent from duty. Workman has faiied to estabiish by piacing relevant materials to show that it was not a case of negligence and /or lack of interest in work. /.
18. In the said view of the matter, the Court-s__ below were justified in not interfering with the decisio"Fi'ta'i<~e'rl,4 by the management to dismiss the appellant frcirn SE3,i{\'/Vi:f"Ia€.,,..V_"'l\l(37 4_ Case is made out for modifyingthe ' dismissal to any other punishment cannot be Vin,:t:'e*~rfered" Court mechanically. Every,..order,o--f-di'sm"issal wiiillicaesje hardship to an employee and4"l1i.s'fairnii»l§:'. "l9i_o.viiev,er the facts and circumstancegsiof eac;h"ea's~e h4asfi.o bi-eivekamined. The case of appel_Ala"r'it_-lg _yi;VVi?ien-.LC~i?,_ilS.id_ered, he being a habitual absente,e"a,nci the-ii.'al:>:s'e«.ngCe".being for a long period, being a CO_F"l'Ci'vti_CtOi'.Vl{i"Va'V1[I)l.EVEWElC transport organisation, the mis- .C'Gndi:£'Ct "established being grave, no leniency can be ,raam, AA dismivssed.
'l' v_'v£l"i.i.i"E'l1AiE.' result, the appeal fails and shall stand Sd/-
JUDGE Sd/-
JUDGE ks}/--