Allowed

The Division Controller v. Sri Devappa T

Karnataka HC8 Nov 2024WP/14318/2024

Case brief

AI extract

What is this about?

Writ Petitioner Corporation challenged Labour Court award reinstating a driver dismissed for unauthorized absence. Court held absence was misconduct, past history mattered, and Labour Court erred sympathetically. Award quashed; dismissal confirmed.

What did the court decide?

Award of Labour Court dated 29.11.2023 quashed; order of dismissal dated 31.08.2020 confirmed; interim order discharged.

The Division Controller Vs Sri Devappa T — Pension and Retirement Benefits | Karnataka HC (2024)

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1 - NC: 2024:KHC:45238 WP No. 14318 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI WRIT PETITION NO. 14318 OF 2024 (L-KSRTC)

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BETWEEN:

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THE DIVISION CONTROLLER, BMTC, NORTH-EAST DIVISION, K.H.ROAD, SHANTHINAGAR, BANGALURU-560 027.

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NOW REPRESENTED BY ITS CHIEF LAW OFFICER, BMTC, CENTRAL OFFICE, K.H.ROAD, SHANTHINAGAR, BENGALURU-560 027.

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…PETITIONER

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(BY SRI. HAREESH BHANDARY.T., ADVOCATE)

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AND:

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Digitally signed by THEJASKUMAR N Location: High Court of Karnataka

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SRI. DEVAPPA.T, S/O THIPPANNA, AGED 49 YEARS, R/AT KOMANURU, SAJALAGADDA POST, LINGASURU TALUK, RAICHUR-584 127.

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…RESPONDENT

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(SERVED AND UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS.

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NC: 2024:KHC:45238 WP No. 14318 of 2024

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THIS WRIT PETITION IS LISTED FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, AN ORDER IS MADE AS UNDERNDER:

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ORAL ORDER

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Sri.Hareesh Bhandary.T., counsel for the petitioner has appeared in person.

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Notice to the respondent was ordered on 03.06.2024. A perusal of the office note depicts that respondent is served and unrepresented. The respondent has neither engaged the services of an advocate nor conducted the case as a party in person.

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The short facts are these:

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The respondent was a Driver cum Conductor in the establishment of the Corporation. He remained unauthorizedly absent from duties from 24.11.2017 onwards without prior permission or without sanction of leave. The Depot Manager submitted a report in this regard on 04.12.2017. He was issued with Call letters on 09.12.2017 and 13.04.2018 with a clear instruction to report to duty, but he did not report to duty. He was issued with articles of charge. He did not reply to the same. The disciplinary authority appointed an inquiry officer.

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3 - NC: 2024:KHC:45238 WP No. 14318 of 2024

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He was notified of the inquiry by issuing a notice, but he did not appear before the inquiry officer. The inquiry officer conducted a detailed inquiry and submitted his findings holding that the charges are proved. The respondent was issued with a second show cause notice, but he did not reply to the same. The disciplinary authority taking note of the material on record and the past conduct of the workman, passed an order of punishment on 31.08.2020 and dismissed him from service.

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The respondent raised a dispute before the II Addl. Labour Court, Bengaluru in I.D.No.29/2021. The Labour Court held that the domestic inquiry conducted by the Corporation was fair and proper. The Labour Court vide award dated 29.11.2023 set-aside the order of dismissal and directed reinstatement in his original post with continuity of service and all other consequential benefits. The Labour Court also ordered to withhold two annual increments without cumulative effect. It is this award that is called into question in this Writ Petition on several grounds as set-out in the Memorandum of Writ Petition.

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Counsel for the petitioner has urged several contentions. Heard the arguments and perused the Writ papers with care.

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NC: 2024:KHC:45238 WP No. 14318 of 2024

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The short point that arises for consideration is whether the award of the Labour Court requires interference.

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The facts are sufficiently stated and do not require reiteration. Suffice it to note that the respondent came under a disciplinary inquiry proceedings for an act of misconduct i.e., unauthorized absence and was visited with an order of punishment i.e., dismissed from service on 31.08.2020.

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The issue revolves around unauthorized absence. The charge made against the respondent was that he remained absent unauthorizedly from duty from 24.11.2017 onwards. It is pivotal to note that despite issue of call letters, the respondent did not report to duty; he was notified of the inquiry proceedings, but he did not appear before the inquiry officer. However, on 02.04.2018, he requested the Corporation to permit him to report to duty contending that he was suffering from back pain. Taking note of the same, the Corporation permitted him to report to duty on 17.04.2018.

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It is the specific contention of the Corporation that, no leave application was submitted, even if it is submitted that

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5 - NC: 2024:KHC:45238 WP No. 14318 of 2024

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should be accompanied by Medical Certificate if the leave is sought on the health grounds.

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The workman attempted to contend that he was suffering from back pain and hence, he could not attend the duty. However, the workman did not furnish any medical documents before the inquiry officer or before the Labour Court. Instead on 02.04.2018, he appeared before the Corporation and requested to permit him to report to duty by furnishing a medical and fitness certificate.

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The true copy of the medical and fitness certificate is furnished by counsel for the Corporation by filing a memo. A perusal of the same reflects that Dr.Sridhar.S.T, O.P.D. Surgeon, Bowring & Lady Curzon Hospital has certified that the delinquent was suffering from back pain from 25.11.2017 to 01.04.2018 and he is fit to resume duty from 02.04.2018. However, the workman did not furnish medical reports to substantiate his claim.

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An employee is under an obligation not to absent himself from work without good cause during the time at which he is required to be at work. Absence without leave is a misconduct

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in industrial employment warranting disciplinary punishment. No employee can claim leave of absence as a matter of right and remaining absent without leave will constitute violation of discipline. The absence without leave constitutes a misconduct justified disciplinary action against the delinquent workman. The quantum of punishment in cases of misconduct of absence from duty without leave would depend upon the facts of each case. In the present case, the delinquent remained absent unauthorizedly from duty without submitting a leave application or without prior permission from the higher authority.

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The Labour Court has erred in placing reliance on the orders of punishment passed in respect of employees which were produced as Exs.W1 to W4 to conclude that the order of dismissal is discriminatory in nature. The Labour Court has failed to notice that there cannot be a similar yardstick in all cases of disciplinary matters. Each case differs as the misconduct also varies from case to case. It is perhaps well to observe that each case depends on the gravity of the misconduct coupled with the history of the worker.

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Needless to observe that taking note of the past conduct is a mandate requirement as per Regulation 25 of the KSRTC

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NC: 2024:KHC:45238 WP No. 14318 of 2024

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(Conduct & Discipline) Regulations, 1971. In the present case, the workman was involved in almost seven unauthorized absenteeism cases in the past. The disciplinary authority took note of the material on record and rightly passed the order of dismissal. Hence, the Labour Court could not have viewed the unauthorized absenteeism lightly. The Labour Court has placed misplaced sympathy on the respondent to conclude that he would be unemployed and would face difficulty to lead his life and to maintain the family. Furthermore, exercise of discretionary power under Section 11A is also not proper. I may venture to say that the Labour Court has failed to have regard to relevant considerations and disregarded relevant matters. In my considered opinion, the award passed by the Labor Court is unsustainable in law. Therefore, I deem it proper to quash the award of the Labor Court.

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The Writ of Certiorari is ordered. The award dated 29.11.2023 passed by the II Addl. Labour Court, Bengaluru in I.D.No.29/2021 vide Annexure-A is quashed. The order of dismissal dated 31.08.2020 is confirmed.

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8. Resultantly, the Writ Petition is allowed .

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NC: 2024:KHC:45238 WP No. 14318 of 2024

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Because of confirmation of the order of dismissal, the

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interim order granted by this Court stands discharged.

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Sd/(JYOTI MULIMANI) JUDGE

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TKN List No.: 2 Sl No.: 50

The Division Controller v. Sri Devappa T

Case brief

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What did the court decide?

The Division Controller v. Sri Devappa T

Case brief

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