Partly allowed

K N Ramesh Reddy v. the Divisional Controller and

Karnataka HC29 May 2023WP/9650/2018

Case brief

AI extract

What is this about?

The Karnataka High Court set aside a labour court award dismissing a conductor for unauthorized absence because the Disciplinary Authority considered prior default history without giving the petitioner an opportunity to respond. The court freed the employee from dismissal but imposed an alternative punishment of withholding two annual increments while allowing continuity of service and benefits.

What did the court decide?

Writ petition allowed in part. Petitioner reinstated with continuity of service and benefits excluding unauthorized absence period, but two annual increments withheld as punishment.

K N Ramesh Reddy Vs the Divisional… — Labour and Industrial Disputes | Karnataka HC (2023)

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1 - WP No. 9650 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29^TH DAY OF MAY, 2023 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI WRIT PETITION NO.9650 OF 2018 (L-KSRTC)

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BETWEEN:

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K.N. RAMESH REDDY, S/O LATE K. NARAYANA REDDY, R/AT KUNTACHIKKANA HOBLI, G. BOMMASANDRA POST, GOWRIBIDANUR TALUK, CHICKBALLAPUR DISTRICT 561 210.

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…PETITIONER

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[BY SRI. M.C. BASAVARAJU, ADVOCATE (PH)]

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AND:

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THE DIVISIONAL CONTROLLER AND DISCIPLINARY AUTHORITY, KSRTC, CHIKKABALLAPURA DIVISION, CHIKKABALLALPURA 562 101.

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…RESPONDENT

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Digitally signed by GURURAJ D Location: High Court of Karnataka

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

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THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE PRINCIPAL DISTRICT JUDGE AT CHIKKABALLAPUR IN I.D.NO.42/2016 DATED 19.06.2017 VIDE ANNEXURE-A TO THIS WRIT PETITION AND DIRECT THE RESPONDENT TO REINSTATE THE PETITIONER INTO SERVICE WITH CONTINUITY OF SERVICE AND ALL OTHER CONSEQUENTIAL BENEFITS INCLUDING FULL BACK WAGES FROM THE DATE OF DISMISSAL TILL THE DATE OF REINSTATEMENT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE.

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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. 9650 of 2018

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ORDER

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Challenging award dated 19.06.2017 passed by Principal District Judge at Chickballapur, in I.D.no.42/2016, this writ petition is filed.

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Sri M.C. Basavaraju, learned counsel for petitioner submitted that since year 2005 petitioner has been working as conductor in respondent - Corporation. And while serving in Chickballapur Division, he was issued with order of dismissal from service on 16.12.2015 on ground of having remained unauthorizedly absent for duty from 10.05.2015 to 21.09.2015. It was submitted that prior to that Articles of Charge was issued on 17.08.2015. Petitioner replied same stating that he was seriously ill during said period, therefore he was unable to report for duty. Without considering same, respondent - Corporation proceeded to hold for domestic enquiry. Even during domestic enquiry, petitioner participated and produced medical records. Enquiry Officer without proper consideration, submitted report upholding charges. Thereafter in response to second show-cause notice issued along with enquiry report, petitioner submitted his representation.

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WP No. 9650 of 2018

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However, without proper consideration, Disciplinary Authority proceeded to pass order dismissing him from service.

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It was submitted that Disciplinary Authority was not justified in relying upon default history of petitioner while passing order and also petitioner was not provided any opportunity. It was submitted that earlier default history was not either made part of Articles of Charge or any notice that was issued to petitioner to reply same. As earlier default history was one of considerations while imposing punishment, impugned order of dismissal from service was unjustified. Same was questioned by filing claim petition under Section 10(4)(A) of Industrial Disputes Act, 1947 (for short ' ID Act ') registered as I.D.no.42/2016.

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In said proceedings, issue no.1 regarding departmental enquiry being just and fair was answered in affirmative. On issue no.2, tribunal on consideration of material before it, arrived at conclusion that petitioner had failed to report for duty without submitting leave application and therefore guilty of unauthorized absent for period of 134 days. And taking into account that petitioner was involved in 7 similar

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WP No. 9650 of 2018

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default cases earlier, it held order of punishment was justified and proceeded to reject claim petition.

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It was submitted that both Labour Court as well as Disciplinary Authority erred in not noticing that petitioner was not provided opportunity to represent against earlier default cases, default history would be an irrelevant consideration while considering quantum of punishment. Therefore, exercise of power under Section 11-A of ID Act by Labour Court was defective and sought for setting aside of award.

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Sri B.S. Shrinivas, advocate appearing for Sri B.L.Sanjeev, learned counsel for respondent – Corporation, on other hand sought to justify award. It was submitted that petitioner was issued with call letter dated 24.07.2015 before issuing Articles of Charge. Since petitioner failed to respond to same, respondent – Corporation had issued Articles of Charge on 17.08.2015. It was submitted that though petitioner participated in departmental enquiry, he was not able to establish that he had filed any leave application and therefore remaining absent without obtaining sanction of leave would amount to unauthorized absence and hence both Enquiry

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WP No. 9650 of 2018

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Officer as well as Labour Court had concurrently held that charge of unauthorized absence was established. It was submitted that since charge was established, imposition of punishment would be justified and therefore award of Labour Court did not call for interference and sought for dismissal of writ petition.

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Heard learned counsel, perused impugned award as well as writ petition records.

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From above submission, it is not in dispute that while passing order of punishment, Disciplinary Authority had relied upon default history of petitioner. Main contention urged against order of punishment is denial of opportunity against default history, it requires to be examined whether exercise of power under Section 11-A of ID Act by Labour Court was proper.

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On perusal of departmental enquiry records, it is seen that in Articles of Charge dated 17.08.2015, only charge against petitioner, was unauthorized absence from 10.05.2015. There is no reference to default history. In reply to Articles of Charge, petitioner submitted two medical certificates dated 10.05.2015 and 03.08.2015.

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WP No. 9650 of 2018

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Even in second show-cause notice dated

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28.10.2015 issued after receipt of enquiry report, it is seen that there is no reference to default history. But, while passing impugned order of punishment on 16.12.2015, Disciplinary Authority has specifically referred to earlier default history of 21 instances. Therefore, apart from finding regarding unauthorized absence, default history was part of consideration by Disciplinary Authority while passing order of dismissal from service.

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In impugned award, it is seen that default history was weighed against petitioner. As issue no.1 was answered in affirmative, Labour Court was only required to examine whether there was victimization and quantum of punishment was disproportionate, for which default history would be extraneous consideration for failure to provide opportunity. Thus, it is established that petitioner was not provided opportunity regarding default history and further that in impugned award default history weighed against petitioner. Therefore, there is improper exercise of power under Section 11-A of ID Act. Hence, impugned award would be unsustainable.

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WP No. 9650 of 2018

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Insofar as charge of unauthorized absence, it is seen that medical certificates were obtained on 10.05.2015 and 03.08.2015. Nothing prevented petitioner from responding to call notice dated 24.07.2015 or informing respondent – Corporation prior to issuance of Articles of Charge and apply for leave. However, it is seen that insofar as charge of unauthorized absence against petitioner, Enquiry Officer as well as Labour Court have concurrently concluded that petitioner was guilty.

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In view of above, it would be appropriate to remit matter back to Disciplinary Authority to reconsider on quantum of punishment. But, in view of lapse of long length time and with a view to give quietus to dispute, it would be appropriate for this Court to impose appropriate alternative punishment in respect of proved misconduct by directing to withhold two annual increments with cumulative effect apart from denial of complete back wages as a measure of specific punishment.

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Accordingly, writ petition is allowed in part. It is clarified that petitioner would be entitled for continuity of

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WP No. 9650 of 2018

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service and consequential benefits excluding period of

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unauthorized absence.

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Respondent – Corporation shall reinstate petitioner within

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period of one month from date of petitioner furnishing current conductor licence along with medical fitness certificate obtained from competent authority and compliance of necessary formalities.

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Sd/JUDGE

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GRD

K N Ramesh Reddy v. the Divisional Controller and

Case brief

What is this about?

What did the court decide?

K N Ramesh Reddy v. the Divisional Controller and

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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