Sri.Rajendra Vs the Divisional Manager

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS OF THE LABOUR COURT AND SET ASIDE THE AWARD PASSED BY THE PRESIDING OFFICER, LABOUR COURT, MANGALORE, D.K., IN APPLICATION NO.3/2014 DATED 7.8.2018 MARKED AS ANNEXURE-A. DIRECT THE RESPONDENT TO REINSTATE THE PETITIONER INTO SERVICE WITH CONTINUITY OF SERVICE AND FULL BACK WAGES AND ALL OTHER CONSEQUENTIAL BENEFITS BY A SUITABLE WRIT OR ORDER.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL ORDER

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This petition is filed challenging the award rejecting the reference. In terms of the impugned award dated 07.08.2018, the Labour Court rejected the reference on the premise that the petitioner was unauthorisedly absent from 22.01.2011 to 13.05.2012.

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Learned counsel appearing for the petitioner taking through the facts of the case would submit that there is no dispute relating to the relationship of employer

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and employee between the respondent and the petitioner and the petitioner was suffering from peripheral neuritis which prevented the petitioner from attending the duty. The petitioner submitted leave application to the concerned authority through an acquaintance and though the leave application has reached the concerned officer, application is not considered. The petitioner was in Mangalore undergoing treatment for the peripheral neuritis and it appears that a notice was issued to the petitioner

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asking for his explanation for unauthorised absence and

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said notice is not served on the petitioner as he was not residing in the place on account of his treatment and it also appears that, a notice is affixed to the conspicuous part of his residence where he was not residing and thereafter without there being any enquiry, the order came to be passed holding that the petitioner has abandoned his service.

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Aggrieved by the said order, the petitioner has raised the industrial dispute. Before the Labour Court, the petitioner took a specific contention that domestic enquiry was not held and the Labour Court was required to frame an issue as to the fairness of the enquiry if any held and without there being any such issue, the Labour Court proceeded to hold trial on issue No.2 and because of this, the petitioner could not lead proper evidence relating to petitioner's ailment and absence which was justified on account of ailment from 22.01.2011 to 13.05.2012.

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It is further submitted that the

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respondent/employer was required to hold enquiry relating to the absence and only after considering the reasons for absence, the appropriate order could not have been passed.

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In the alternative, learned counsel for the petitioner submitted that the disciplinary authority has not applied its mind while imposing the penalty of treating the petitioner's conduct as abandoning service. The penalty imposed is disproportionate to the misconduct alleged, is the submission.

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Learned counsel appearing for respondent would submit that the petitioner has admitted that he remained unauthorisedly absent for one year four months and he did not respond to the show cause notice and he did not lead acceptable evidence relating to illness before the Labour Court despite opportunity being given to him.

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To substantiate the contention relating to

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peripheral neuritis, the petitioner has produced only the xerox copies of medical certificates which have been rightly rejected by the Labour Court and Labour Court has also noticed that the medical certificates produced by the petitioner do not inspire confidence of the Labour Court to hold that the petitioner was suffering from an ailment which prevented the petitioner from not attending the duty for one year, four months.

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Learned counsel for the petitioner by way of reply would rely upon the judgment of the Hon'ble Apex Court in Shankar Chakravarti vs. Britannia Biscuit Co.

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Ltd. And Another¹ and the judgment of the Division Bench of this Court in Karnataka Power Transmission Corporation Limited., vs S. Kiran² .

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This Court has considered the contentions raised at the bar and perused the records.

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1 (1979) 3 SCC 371 2 W.A. No.217/2023

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It is not in dispute that the petitioner did not

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respond to the initial show cause notice addressed to the petitioner as the petitioner claims that the said show cause notice was not served on him. It is the claim of the petitioner that he was not residing in the address that is provided to the employer. It is not forthcoming that the petitioner has informed the changed address to the employer. This being the position, disciplinary enquiry was not conducted since the misconduct alleged is relating to unauthorised absence which of course is not in dispute though the petitioner claims that the petitioner has submitted an application seeking leave. There is nothing on record to show that such an application was presented to the officer and assuming that such an application was presented to the officer, admitted factual position is the leave was not sanctioned. Thus, the fact that the petitioner was unauthorisedly absent for one year four months is established, for which in the facts of the case enquiry was not required.

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In the said circumstances, disciplinary enquiry

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was not conducted and the respondent employer though not imposed the penalty of dismissal from service has passed an order holding that the petitioner has abandoned his service. In substance, it is a penalty of dismissal. Thus the petitioner raised a dispute before the Labour Court.

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The petitioner raised a contention that the disciplinary enquiry was not held and the entire procedure is in violation of principles of natural justice. The respondent responded to the claim petition had filed objection contending that the petitioner himself has admitted that he was unauthorisedly absent but tried to provide an explanation by stating that he was not keeping well. Considering the nature of the contentions raised by

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the parties, the Labour Court framed two issues. The first issue relating to the relationship of employer and employee which was not in fact in dispute and said issue

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did not arise for consideration. The second issue reads as

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under:-

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"If so, whether the order of removal from service dated 26.6.2011 is unjustifiable and is entitled for reinstatement to his original position with continuity of service and other statutory benefit as claimed in the application?"

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After this issue was framed, the parties were given an opportunity to lead evidence. From the tenor of evidence that is recorded before the Labour Court, it is evident that the petitioner was aware that there was no disciplinary enquiry conducted against him as such, the petitioner tried to lead evidence to justify his absence on the premise that he was not keeping well for one year four months.

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The petitioner has produced xerox copies of the medical certificates for certain period and has also produced the xerox copy of the fitness certificate. The

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authenticity of the certificates are doubted by the respondent as well as the Labour Court.

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Learned counsel for the petitioner would submit that since the issue is not raised as to whether there was an enquiry or not and if there was an enquiry, whether the enquiry was fair or not, the petitioner could not lead evidence to justify his absence.

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This contention cannot be accepted. As already noticed issue No.2 is relating to the order of dismissal dated 20.06.2011. It is an admitted factual position that petitioner was removed from service or at least it was deemed that the petitioner has abandoned his service on account of unauthorised absence.

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The petitioner went to the trial with a clear understanding that he was required to establish his ill health for one year four months. The evidence on record which is appreciated by the Labour Court does not indicate

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that the petitioner was not keeping well for one year four

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months.

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Nothing prevented the petitioner from leading evidence of the doctor. Though the learned counsel for the petitioner would submit that the petitioner wanted to summon the doctor and lead evidence of the doctor, no such application is filed before the Labour Court. This Court cannot hold that the Labour Court prevented the petitioner from leading the evidence of the doctor.

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It is also noticed that one of the xerox copies of the medical certificates produced by the petitioner do not bear the date. The details of the treatment provided to the petitioner are not forthcoming. Whether the petitioner was inpatient or outpatient is also not forthcoming. The Labour Court has also referred to Ex.A5, the letter addressed by the petitioner to the employer wherein, he

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has stated that he has remained unauthorisedly absent though he stated in the very same letter that he was ill. As the medical certificates produced or the evidence led

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are not sufficient enough to hold that petitioner was unable to attend the work for one year and four months on account of illness. The contention relating to unauthorised absence not established.

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It is also relevant to notice that in the said period of one year four months, no attempt is made by anyone on behalf of the petitioner to bring it to the notice of the employer that the petitioner is not keeping well and he seeks leave to avail medical treatment.

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This being the position, this Court is of the view that the finding of the Labour Court which is based on evidence on record and being a plausible view, cannot be interfered in exercise of jurisdiction under Article 227 of the Constitution of India.

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This Court has also perused the judgment of the Hon'ble Apex Court in Shankar Chakravarti supra, wherein the Hon'ble Apex Court has held that in case the departmental enquiry is not held, there has to be a

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preliminary issue on the point. No doubt in this case, there is no departmental enquiry. Issue No.2 is framed, in such a way it covers the aspect of fairness of the enquiry. The petitioner having understood the scope of the enquiry and having understood what is required to be proved went to the trial and tried to produce evidence in support of his claim. The evidence is not sufficient as held by the Labour Court. This Court is also agreeing with the said findings.

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This being the position, no prejudice is caused to the case of the petitioner, by the issue so framed.

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As far as the judgment of the Division Bench of this Court in Karnataka Power Transmission Corporation Limited., supra is concerned, the ratio in that case does not come to the aid of the petitioner for the simple reason that in the said case the Tribunal based on evidence has concluded that the penalty of dismissal imposed on the employee is disproportionate to the misconduct alleged. In that case, the Court has come to the conclusion that the illness alleged by the petitioner is

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established and learned single judge of this Court declined to interfere with the award passed by the Labour Court in exercise of jurisdiction under Article 227 of the Constitution of India which is confirmed by the Division Bench of this Court.

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Whereas in the instant case, the Labour Court has itself held that plea relating to illness for one year four months' unauthorised absence is not supported by any evidence.

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Thus, for the aforementioned reasons this Court does not come to the aid of the petitioner.

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Consequently, the writ petition is dismissed.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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CHS List No.: 1 Sl No.: 44

Sri.Rajendra v. the Divisional Manager

Case brief

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Sri.Rajendra v. the Divisional Manager

Case brief

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