Allowed

Sri. Basavaraju v. the Divisional Controller

Karnataka HC16 Jan 2023WP/28451/2018

Case brief

AI extract

What is this about?

The High Court examined a writ petition challenging an Industrial Tribunal award that upheld a penalty of reduced pay for unauthorized absence. The Court held that the submission of a leave application via registered post, unaccompanied by rejection, estopped the respondent from claiming unauthorized absence. Consequently, the award and the punishment order were set aside, and the reference was al

What did the court decide?

The writ petition is allowed. The Tribunal's award dated 17.08.2017 and the punishment order dated 31.01.2014 are set aside. Reference No. 105/2016 is allowed.

Sri. Basavaraju Vs the Divisional Controller — Pension and Retirement Benefits | Karnataka HC (2023)

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WP No. 28451 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO. 28451 OF 2018 (L-KSRTC)

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BETWEEN:

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SRI. BASAVARAJU AGE 48 YEARS,

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S/O SIDDAIAH

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DRIVER, BADGE NO.10136 KSRTC, DEPOT NO.1 MYSORE RURAL DIVISION BANNIMANTAPA, MYSURU

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…PETITIONER

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(BY SRI. NAIK V S., ADVOCATE)

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AND:

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THE DIVISIONAL CONTROLLER KSRTC

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MYSORE RURAL DIVISION MYSORE-570001

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…RESPONDENT

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Digitally …RESPONDENT signed by POORNIMA (BY SRI. B.L. SANJEEV, ADVOCATE) SHIVANNA THIS W.P. IS FILED PRAYING TO CALL FOR ENTIRE RECORDS Location: HIGH COURT FROM THE INDUSTRIAL TRIBUNAL, MYSURU, PERTAINING TO ANNXOF KARNATAKA E, AND GRANT THE PETITIONER THE FOLLWING RELIEFS. QUASH THE AWARD DTD. 17.08.2017 PASSED BY THE INDUSTRIAL TRIBUNAL, MYSURU, IN REF.NO. 105 OF 2016 THE CERTIFIED COPY OF WHICH IS PRODUCED AND MARKED AS ANNX-E, SINCE THE

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TRIBUNAL HAS COMMITTED ERRORS WHICH ARE APPARENT ON THE FACE OF THE RECORDS.

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THIS W.P., COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner/workman is before this Court seeking

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for the following releifs:

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a. ISSUE WRIT OF CERTIORARI or any other appropriate writ or direction quashing the Award dated 17.08.2017 passed by the Industrial Tribunal, Mysuru, in Ref.No.105 of 2016 the certified copy of which is produced and marked as Annexure-E, since the Tribunal has committed errors which are apparent on the face of the records.

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b. ISSUE A WRIT OF MANDAMUS or any other appropriate writ or direction directing Respondents to restore pay the petitioner to its original position and with further directions to extend all the consequential benefits flowing from proper fixation to pay and to treat the period of absence as 'leave without pay'

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c. GRANT SUCH OTHER RELIEF or reliefs as deemed necessary to meet the ends of the justice

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The petitioner was working as a driver with the respondent/Road Transport Corporation being appointed in the year 2000 and his probation having been confirmed in the year 2002. While working at

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Mysore Rural Electric Depo-I, the disciplinary proceedings were initiated against the workman and articles of charge issued on 03.12.2012, alleging that the workman had remained absent for duty with effect from 23.08.2012 to 08.12.2012 without availing leave, inasmuch as leave was not sanctioned, which resulted in disruption of service and work scheduled at the depot, resulting in loss in the year 2000.

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A report had been received from the depot on 30.08.2012 regarding the unauthorized absence of the workman from duty. The articles of charge were issued, the workman replied to the articles of charge by stating that the workman on 24.08.2012 sent a leave letter requesting for sanction of leave for a period of one month from 23.08.2012. Since on 23.08.2012, the workman had gone to a Doctor for neck pain which was treated as cervical spondylitis

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sine he working as a driver he could not discharge his functions with that ailment. Along with the leave letter, the medical certificates were also submitted.

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However, the same not being accepted by the Disciplinary Authority, an enquiry was ordered. The Enquiry Officer submitted a report holding that the charges against the workman had been proved. The Disciplinary Authority issued a second show cause notice on 05.12.2013, the reply given thereto was not acceptable to the Disciplinary Authority and on 31.01.2014, the Disciplinary Authority imposed a punishment of reduction of pay by two increments permanently and to treat the period of absence as an unauthorized absence from duty.

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It is aggrieved by the same that the workman raised an industrial dispute through the KSRTC Employees Union. The union took up the matter by raising an industrial dispute before the conciliation officer. The

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conciliation having failed, the appropriate Government referred the industrial dispute to the Industrial Tribunal, Mysuru by order dated 10.05.2016 for adjudication under Section 10(1)(D) of the Industrial Dispute Act, 1947, which came to be registered as Ref.No.105/2016. The Tribunal, after considering the matter, rejected the workman on the ground that the medical certificates had not been signed by the Doctor and did not indicate the date on which they were issued, and therefore, the same was not believable. It is aggrieved by the same, the petitioner/workman is before this Court.

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Sri. V.S.Naik, learned counsel for the workman would submit that it is not a case of unauthorized absence inasmuch as on the very next day of the absence of the workman i.e., on 24.08.2012, the workman had sent a leave letter by way of registered post acknowledgment to one Sri. Marigowda, who is a

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Depot Manager and as such, the obligation on the part of the workman had been complied with and the workman cannot be said to be unauthorizedly absent when a leave letter has been submitted.

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Per contra, learned counsel appearing for the RTC would submit that the medical certificates not having been established, the Doctor not having been examined, and there being no date on a medical certificate, the Tribunal has rightly come to a conclusion that no valid cause for absence has not been established, and therefore, the order passed by the Tribunal ought not to be accepted.

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Heard Sri. V.S.Naik, learned counsel for the petitioner and Sri. B.L.Sanjeev, learned counsel for the respondent and perused papers.

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Though the allegations against the workman are that he was unauthorizedly absent. I am of the considered opinion that the facts of the matter would

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not lead to such a conclusion, inasmuch as the leave application had been submitted by the workman to the RTC.

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The contention of the RTC is that the application had not been addressed to the Depot Manager and in the present case, it has been addressed to an individual. A perusal of Ex.W1 would indicate that though the name of the Depot Manager has been mentioned his designation has also been mentioned, thereafter and that the articles subject matter of the registered post have been received by the RTC since it is the rubber stamp of the RTC which has been affixed to the registered post acknowledgment card. It is not that Sri. Marigowda received the said leave application personally, the application and/or the article subject matter of the registered post have been received by the RTC with a rubber stamp of the RTC having been affixed. There is a clear admission made by the RTC

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that the registered post has been received. The only contention raised is that the leave letter was not addressed to the Depot Manager but was addressed to Sri. Marigowda as if to contend that it was addressed to him in his personal capacity.

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This in my considered opinion, this would amount to a splitting of hairs by the RTC inasmuch as the leave letter has been received by the RTC. It is not the RTC's contending that the leave letter was rejected or that the rejection was communicated to the workman. There are no documents which has been produced by the RTC before the Labour Court to establish such rejection. It is only after the inquiry proceedings have been initiated that the contention has been made that the medical certificates do not disclose the date on which they were issued and are not signed by the Doctor.

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Though Sri. B.S.Srinivas, learned counsel for the RTC would submit that a call letter had been issued on 07.09.2012, the same is also does not enure to benefit of the RTC since the leave sought for, on 23.08.2012 was for a period of one month, which has been rejected by the RTC.

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Thus, in my considered opinion the RTC cannot now contend that there was unauthorized absence where in the case of a leave letter had been submitted by the workman by registered post on 24.08.2012, which has not been rejected by any communication sent by the RTC. Such being the case, there being no specific rejection, the same would amount to acceptance on the part of the RTC and therefore, it cannot now be contended that there was an unauthorized absence on the part of the workman.

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In view of the above, I am of the considered opinion that the order passed by the Tribunal without taking

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10 -

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this fact into consideration suffers from a legal infirmity requiring the said order to be set aside. Consequently, having come to a conclusion that there was a leave application which has been submitted by the workman, the reference made is required to be allowed. Hence, I pass the following:

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ORDER

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i. The writ petition is allowed. ii. The order dated 17.08.2017 passed by the Industrial Tribunal, Mysuru in Reference No.105/2016 is set aside. Consequently, Reference No.105/2016 is allowed.

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iii. The order of punishment passed by the Disciplinary Authority dated 31.01.2014 is set aside.

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Sd/JUDGE

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GJM

Sri. Basavaraju v. the Divisional Controller

Case brief

What is this about?

What did the court decide?

Sri. Basavaraju v. the Divisional Controller

Case brief

What is this about?

What did the court decide?

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