Dismissed

Umesha v. General Manager (Operation)

Karnataka HC22 May 2023WP/43380/2018

Case brief

AI extract

What is this about?

Writ petition challenging dismissal from service order by Labour Court for unauthorized absence. Dismissed as dismissal justified due to petitioner's knowledge of transfer and failure to report, citing settled precedents on statutory organizations.

What did the court decide?

Writ petition dismissed; Labour Court award upheld; no refund of rates demanded by petitioner.

Umesha Vs General Manager (Operation) — Pension and Retirement Benefits | Karnataka HC (2023)

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WP No. 43380 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF MAY, 2023 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI WRIT PETITION NO. 43380 OF 2018 (L-KSRTC)

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BETWEEN:

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UMESHA, S/O. DALEGOWDA, R/AT VADDARAHALLI VILLAGE, BENNAHATTI POST, BASARALU HOBLI, MANDYA TALUK, MANDYA DISTRICT.

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…PETITIONER

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[BY SRI. SHEKAR L., ADVOCATE (PH)]

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AND:

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GENERAL MANAGER (OPERATION), KSRTC, CENTRAL OFFICES, K.H. ROAD, BANGALORE 560 027.

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…RESPONDENT

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[BY SRI. B.S.SHRINIVAS, FOR SRI. B.L.SANJEEV, ADVOCATE (PH)]

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Digitally signed by GURURAJ D THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE Location: High Court of Karnataka CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED AWARD DATED 01.02.2018 PASSED BY THE PRESIDING OFFICER, III ADDL. LABOUR COURT, BANGALORE IN I.D.NO.15/2017 AT ANNEXURE-A CONSEQUENTLY ALLOWED THE CLAIM STATEMENT AS PRAYED FOR AND DIRECT THE RESPONDENT TO REINSTATE THE PETITIONER AND TO PAY ALL CONSEQUENTIAL AND SERVICE BENEFITS TO THE PETITIONER INCLUDING BACK WAGES.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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WP No. 43380 of 2018

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ORDER

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Challenging award dated 01.02.2018 passed by Presiding Officer, III Additional Labour Court, Bengaluru in

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I.D.no.15/2017, this writ petition is filed.

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Sri L.Shekar, learned counsel for petitioner submitted that petitioner was working as conductor in KSRTC, Bengaluru. While in service, petitioner was issued with Articles of Charges dated 30.04.2015 alleging that he was unauthorizedly absent from 13.03.2015 after transfer from Chamarajnagar Division to Puttur Division under order dated 03.02.2015 and relieved on 05.03.2015 and also for showing scant regard to order of Corporation.

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It was submitted that petitioner replied stating that though he reported for duty at Chamarajanagar Depot on 05.03.2015 he was not assigned duty and also he has look after his mother, who is suffering from ill-health. It was submitted that instead of considering reply and dropping charges, a farce departmental enquiry was conducted, wherein petitioner participated and submitted records to oppose charges. However, Enquiry Officer submitted report on 25.11.2015 upholding charges. Thereafter, petitioner also

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WP No. 43380 of 2018

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submitted representation against enquiry report on 23.12.2015 in response to second show-cause notice dated 08.12.2015. Without proper consideration, disciplinary authority passed order dismissing petitioner from service.

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Aggrieved thereby petitioner filed claim petition under Section 10 read with Section 2-A of Industrial Disputes Act, 1947 (for short ' ID Act '). Same was registered as I.D.no.15/2017. On entering appearance respondent filed counter statement. Thereafter, issues were framed and matter was taken up for consideration of issue no.1 regarding fairness and propriety of departmental enquiry as preliminary issue.

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By order dated 25.11.2017 same was answered in negative. Consequently, burden to establish charges was on respondent. To substantiate charges, respondent examined Traffic Inspector, Bengaluru Division as MW.2 and got marked departmental enquiry records as Exs.M1 to M38. During crossexamination, MW.2 admitted that he was not aware about service of notice of Exs.M1 and M2 on petitioner. Apart from same, petitioner examined himself as WW.1 and got marked Exs.W1 to W5. Without proper consideration, Labour Court proceeded to dismiss claim petition by award dated 01.02.2018.

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WP No. 43380 of 2018

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It was submitted that admittedly charge of

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unauthorized absent was from 05.03.2015 to 30.04.2015, which was not substantial. Hence, order of punishment of dismissal from service was disproportionate. However, Labour Court failed to consider this aspect.

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It was further submitted that petitioner had also offered explanation for his absence along with medical records of his mother's ill-health. Merely on ground that petitioner has not produced entire medical records, Labour Court was not justified in disbelieving his defence and passing order of punishment. It was contended that Labour Court was also erred in not considering victimization/discrimination which was substantiated by producing punishment orders in respect of Sri K.M.Rajanna and Sri Srinivasa as Exs.W4 and W5. As per Ex.W4, for unauthorized absence of more than twenty months, Appellate authority had set-aside order of dismissal and treated period of absence as leave/earned leave. In Ex.W5, minor punishment was imposed for absence of almost 8 to 9 months. Even decision in W.P.no.42873/2016 regarding discrimination was not considered. On above grounds, learned counsel sought for allowing writ petition.

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WP No. 43380 of 2018

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On other hand, Sri B.L.Sanjeev, learned counsel for respondent sought to support award. It was submitted that petitioner was earlier dismissed from service by order dated 27.12.2011, but was reinstated as per order of Appellate authority. However as per corporation circular, he was transferred to Puttur Division and also relieved from duty on 05.03.2015. Instead of reporting for duty at Puttur on 13.03.2015, petitioner remained unauthorizedly absent. Despite issuance of call notice he did not report for duty therefore, Articles of Charges was issued. Since petitioner's reply to same was not acceptable, departmental enquiry was ordered and on due conclusion of same, order of dismissal from service was passed.

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It was submitted that though petitioner contended that Exs.M1 and M2 were not served, Exs.W1 and W2 wherein petitioner was seeking re-transfer from Puttur Division to Mandya Division, clearly established that petitioner was served with order and he was well aware of same. Despite knowledge, since he did not report for duty at Puttur and thereby disobeyed orders, Labour Court was justified in dismissing claim petition. Insofar as victimization it was submitted that order passed in W.P.no.42873/2016 was on concession and could not be

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WP No. 43380 of 2018

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applied to all cases. Therefore, Labour Court had rightly rejected said contention.

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Heard learned counsel and perused writ petition records.

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From above submission, it is not in dispute that while working as conductor in Chamarajanagar Division, KSRTC, petitioner was transferred to Puttur Division, KSRTC under order dated 03.02.2015. It is also not in dispute that he did not report for duty at Puttur Division. While, petitioner contended that he was not served with order of transfer and order relieving him and further that he had reported for duty at Chamarajanagar depot on 05.03.2015, but was not assigned duty and his absence from duty was also due to ill health of his mother substantiated by medical records and also on ground of victimization; it is case of respondent that petitioner was well aware of order of transfer and he being relieved and therefore his failure to report for duty amounted to unauthorized absence, for which petitioner was provided due opportunity in departmental enquiry as well as before Labour Court and as he failed to justify absence, dismissal from service was justified.

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While passing impugned award, Labour Court has taken note of pleadings, contentions and evidence led on either

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WP No. 43380 of 2018

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side. Hon'ble Supreme Court in several cases including Iswarlal Mohanlal Thakkara Vs. Paschim Gujarat VIJ Company Ltd., & Anr¹ . has clarified that scope of High Court's jurisdiction under Article 226 of Constitution of India against award passed by Labour Court/Industrial Labour Court would be called for only in case of error of jurisdiction or serious error of law apparent on record and when Labour Courts' award based on proper appreciation and cogent reasons, exercise of judicial review would not be justified.

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On examination of records produced by respondent, it observed that petitioner's contention that he was not served with Exs.M1 and M2 - orders, was false. Referring to Exs.W.1 and W.2 - letters, dt.05.03.2015 and 17.03.2015, it observed that petitioner had sought cancellation of his transfer to Puttur Division and for deputing him to Mandya Division, as establishing knowledge. Since, failure to report for duty at Puttur Division was admitted, it held dismissal from service as justified.

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While arriving at such conclusion, it also examined evidence led by petitioner insofar as illness of his mother. It

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1 (2014) 6 SCC 434

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WP No. 43380 of 2018

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observed that petitioner failed to produce any medical records showing health condition of his mother. It found that documents produced along with Ex.M37, where for months of July and August etc., subsequent to period of unauthorized absence alleged against petitioner. On said reasoning, it dismissed claim petition.

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On bare perusal of Exs.M1 and M2, it is seen that

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petitioner was transferred from Chamarajanagar to Puttur Division and relieved. Thereafter as per Ex.M3 - call notice, was also issued to him. Ex.M.6 - Articles of charges was admittedly received and replied by petitioner. Participation of petitioner in departmental enquiry is admitted. Ex.M.34 - enquiry report holding charges as proved. Even issuance of second show-cause notice as per Ex.M.35 and submission of representation as per Ex.M.37 are admitted.

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Careful perusal of medical record indicates that they are in respect of June, 2015 onwards and do not pertain to period of unauthorized absence alleged against petitioner. It is also seen that while passing order of punishment at Ex.M.38, disciplinary authority had considered entire records. It is also observed that petitioner was once earlier dismissed from service and reinstated. Such being case, failure to report at

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WP No. 43380 of 2018

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place of transfer would not be justified. When petitioner had knowledge of his transfer, failing to report for duty, petitioner has disobeyed orders.

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Hon'ble Supreme Court in case of NEKRTC Vs. Ashappa² has held punishment of dismissal from service in case of unauthorized absence as justified taking note of fact that respondent is a statutory organization providing public utility services which would be affected by unauthorized absence.

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Even insofar as victimization, it is seen that order in W.P.no.42873/2016 was passed virtually on concession. Hon'ble Supreme Court in Balbir Chand Vs. Food Corporation of India³ , has held that grant of lesser punishment in case of others would not be a ground for interfering with order of punishment passed by Disciplinary Authority. Hence, no grounds for interference made out. Consequently, writ petition is dismissed.

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Sd/JUDGE

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GRD

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2 2006 (5) SCC 137

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3 1997 (3) SCC 371

Umesha v. General Manager (Operation)

Case brief

What is this about?

What did the court decide?

Umesha v. General Manager (Operation)

Case brief

What is this about?

What did the court decide?

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