Dismissed

O. Pani v. the Divisional Controller

Karnataka HC3 Sept 2024WP/35353/2019

Case brief

AI extract

What is this about?

This court dismissed the workman's writ petition and allowed the carrier's. The sanctity of the Labour Court's award directing reinstatement with backwages was upheld, finding the original dismissal justified due to the respondent's habitual unauthorized absences.

What did the court decide?

Impugned order of Labour Court setting aside dismissal is set aside; original order of dismissal is confirmed; Writ Petition No. 35353/2019 dismissed; Writ Petition No. 57914/2018 allowed.

O. Pani Vs the Divisional Controller — Labour and Industrial Disputes | Karnataka HC (2024)

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1 - NC: 2024:KHC:36070 WP No. 35353 of 2019 C/W WP No. 57914 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

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WRIT PETITION NO.35353 OF 2019 (L-KSRTC)

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C/W

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WRIT PETITION NO.57914 OF 2018 (L-KSRTC)

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IN W.P. No.35353/2019

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BETWEEN:

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O. PANI S/O. OBALAPPA, AGE 40 YEARS, R/AT MAVINAKATTE VILLAGE BISANAHALLI POST, HOSADURGA TALUK, CHITRADURGA DISTRICT – 577 527. ... PETITIONER

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(BY SRI SHEKAR L., ADVOCATE)

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Digitally signed by SHYAMALA Location: HIGH COURT OF KARNATAKA

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AND:

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THE DIVISIONAL CONTROLLER, K.S.R.T.C., BENGALURU CENTRAL DIVISION, SHANTHINAGARA, BENGALURU – 560 027. ... RESPONDENT

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(BY SRI A.C. BALARAJ, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED AWARD DATED 01.02.2018 PASSED BY THE HON’BLE LEARNED PRESIDING OFFICER, III ADDL. LABOUR COURT, BENGALURU IN I.D.NO.33/2017 IN SO FAR AS IT RELATES TO REDUCTION OF FIVE ANNUAL INCREMENTS WITH CUMULATIVE EFFECT VIDE ANNEXURE-A TO THE WRIT PETITION AND ETC.

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NC: 2024:KHC:36070 WP No. 35353 of 2019 C/W WP No. 57914 of 2018

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IN W.P. NO.57914/2018

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BETWEEN:

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THE DIVISIONAL CONTROLLER, KSRTC BANGALORE CENTRAL DIVISION, K.H. ROAD, SHANTHINAGAR, BENGALURU – 560 027

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NOW REPRESENTED BY ITS: CHIEF LAW OFFICER, K.S.R.T.C. SHANTHINAGAR, BANGALORE – 560 027. ... PETITIONER

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(BY SRI A.C. BALARAJ, ADVOCATE)

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AND:

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SRI O. PANI S/O. OBALAPPA AGED ABOUT 40 YEARS, MAVINAKATTE VILLAGE, BISANAHALLI POST, CHITHRADURGA DISTRICT – 577 501. ... RESPONDENT

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(BY SRI SHEKAR L., ADVOCATE)

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THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

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3 - NC: 2024:KHC:36070 WP No. 35353 of 2019 C/W WP No. 57914 of 2018

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ORAL ORDER

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W.P.No.35353/2019 is preferred by the workman

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assailing the award passed by the Labour Court, and W.P.No.57914/2018 is preferred by the Divisional Controller, KSRTC (“the Corporation” for short), whereby, the order of dismissal passed by the Corporation against

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the workman was set aside and the Corporation was directed to reinstate the workman into original post with all consequential benefits and 25% backwages from the date of dismissal till the date of reinstatement by reducing his five annual increments with cumulative effect.

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Articles of charges were issued to the workman for the misconduct of unauthorized absence from 03.03.2015 to 16.05.2015, enquiry officer was appointed, enquiry was conducted and report was submitted by the enquiry officer holding the charges leveled against the workman is proved. The Disciplinary Authority, considering the report and the material placed before it, passed an order of dismissal, dismissing the workman from service

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4 - NC: 2024:KHC:36070 WP No. 35353 of 2019 C/W WP No. 57914 of 2018

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considering the gravity of misconduct and the past history of identical cases for ten times, wherein, the workman has remained absent and was punished for the same.

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The workman raised dispute before the Labour

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Court by filing claim statement under Section 10 read with 2(A) of the Industrial Disputes Act, 1947 (Karnataka Amendment) Act, 2010 (“ID Act” for short) seeking setting aside the order of dismissal and to reinstate the workman into service with continuity of service with full backwages and other consequential benefits.

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On notice, the corporation appeared and filed

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its counter contending that the workman is a habitual absentee and earlier on many occasions remained absent unauthorizedly, inspite of giving sufficient opportunity to reform by imposing minor punishment, he continued to remain absent and thus, the order of dismissal passed was justified.

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Before the Labour Court, the workman filed

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memo conceding the fairness of domestic enquiry held

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5 - NC: 2024:KHC:36070 WP No. 35353 of 2019 C/W WP No. 57914 of 2018

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against the workman and accordingly, the Labour Court answered issue No.1 in the affirmative in favour of the corporation.

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On the question of victimization and unfair labour practice, the workman examined himself as WW.1 and marked documents at Ex.W.1 and W.2. On the other hand, the Corporation examined one Narasimhaiah - establishment supervisor as MW.1 and marked documents at Ex.M.1 to M.22. The Labour Court, by the impugned award directed reinstatement of the workman to the original post with 25% backwages, continuity of service, consequential benefits, by reducing five annual increments with cumulative effect.

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Being aggrieved by the imposing of punishment of reducing five annual increments with cumulative effect, the workman is before this Court and against reinstatement, consequential benefits, continuity of service and backwage of 25%, the Corporation is before this Court.

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6 - NC: 2024:KHC:36070 WP No. 35353 of 2019 C/W WP No. 57914 of 2018

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The Tribunal having held that the domestic

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enquiry to be fair and proper, what remained before the Tribunal was to consider whether the order of the Disciplinary authority suffers from perversity, whether there was victimization and unfair labour practice by the corporation and whether the imposition of punishment is disproportionate to the gravity of misconduct.

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The workman was issued with articles of charges for remaining absent from 03.03.2015 to 16.05.2015. The workman placed reliance on Exs.W.1 and W.2, which are the orders of the appellate authority in respect of the co-workman for similar charges and to contend that the minor punishment was imposed on those workmen.

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The question of parity for negative relief cannot be equated and the imposition of punishment for a particular workman for unauthorised absence depends upon the facts of each case. In the instant case, the absenteeism by the workman was without obtaining leave,

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7 - NC: 2024:KHC:36070 WP No. 35353 of 2019 C/W WP No. 57914 of 2018

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when the workman was under an obligation not to absent himself from work without good cause during the time at

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which he is required to be at work by the terms of his contract of service. The absence on the part of the workman was not on one occasion, but nearly for more than ten times for several days without informing the employer. The Labour Court, though considers the earlier absence of the workman, has directed reinstatement and other benefits, but with punishment of withholding five annual increments with cumulative effect. The Labour Court ought to have considered that the unauthorized absence jeopardizes the functioning of the establishment and particularly, if a driver of a transport corporation remains absent, it will certainly have serious repercussion on the function of the corporation and hinders service of the public for which the Corporation has been brought into existence under the provisions of the Transport Corporation Act. The lack of interest has been shown by the workman by his consistent habitual absenteeism and the corporation has suffered due to unethical behavior of

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8 - NC: 2024:KHC:36070 WP No. 35353 of 2019 C/W WP No. 57914 of 2018

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the workman. The Labour Court, failed to answer as to how the corporation has victimized and there was an unfair labour practice on the workman. There is nothing on record other than one medical report to contend that the absenteeism for duty was due to the said reason. The Labour Court has extended misplaced sympathy to the workman who has committed misconduct repeatedly. The directing of reinstatement with consequential benefits and 25% backwages is like rewarding his misconduct and punishing the corporation. The action of the corporation in dismissing the workman is neither arbitrary nor suffers from any perversity and the Labour Court was not justified in exercising its discretion and setting aside the order of dismissal.

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Learned counsel for the Corporation has filed memo bringing to the notice of this Court that pursuant to the interim order passed by this Court to reinstate the workman, however, the workman did not join the corporation and notice was issued to him, enquiry was

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9 - NC: 2024:KHC:36070 WP No. 35353 of 2019 C/W WP No. 57914 of 2018

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held and after holding enquiry, the workman was dismissed from service again on 7.9.2022 for his absenteeism. The copy of the order dated 07.09.2022 is annexed along with the memo. The memo is taken on record. The conduct of the workman indicates that he is not interested in continuing his service with the Corporation, in the said circumstances, this Courtis of the considered view that the impugned order passed by the Labour Court warrants interference and this Court pass the following:

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ORDER

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i) Writ petition No.35353/2019 is hereby dismissed.

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ii) Writ petition No.57914/2018 is allowed.

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iii) The impugned order passed by the Labour Court is set aside and the order of the disciplinary authority

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stands confirmed.

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Sd/(K.S. HEMALEKHA) JUDGE

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List No.: 1 Sl No.: 46

O. Pani v. the Divisional Controller

Case brief

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O. Pani v. the Divisional Controller

Case brief

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