Division Controller Vs Mallikarjuna

THE CONSTITUTION OF INDIA PRAYING TO QUASH THE AWARD DATED 26.03.2018 PASSED BY THE PRESIDING OFFICER, LABOUR COURT, MYSURU, IN REF.NO.79/2016 VIDE ANNX-K AND ETC.,

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HC-KAR

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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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CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

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ORAL ORDER

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Learned counsel appearing for the petitioner has produced the order of dismissal dated 25.08.2022 and same is taken on record.

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Heard.

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This petition is filed assailing the award dated

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26.03.2018 passed by the Labour Court, Mysore in Reference No.79/2016. In terms of the impugned award, the Labour Court has interfered with the penalty imposed by the disciplinary authority and the disciplinary authority in terms of the order dated 13.06.2014 had dismissed the petitioner from service.

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The Labour Court in exercise of power under Section 11A of the Industrial Disputes Act, 1947 modified

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HC-KAR

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the order of dismissal and reduced two increments from the basic salary. In addition to that the Labour Court also held that the employee is not entitled to back wages from 15.02.2013 till the date of reinstatement into service. It is further held by the Labour Court that the first party is not entitled for continuity of service and consequential benefits to be computed from the date of his reinstatement.

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Certain facts are not in dispute. The respondent

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joined the petitioner as a Data Entry Operator on 26.03.1992. Thereafter in the year 2013, the disciplinary action was initiated against the respondent on the premise that he was unauthorizedly absent from 15.02.2013 to 17.04.2013. A charge memo was issued to the respondent and respondent replied to the charge memo denying the charges. Enquiry was held and the enquiry officer found the respondent - employee guilty of charges; second show cause notice was issued; respondent denied the charges. Thereafter, the disciplinary authority has imposed penalty of dismissal from service. The said order

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HC-KAR

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was passed on 13.06.2014. The petitioner raised the dispute before the Labour Court, Mysore in Reference No.79/2016.

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The parties led evidence before the Labour Court. The Labour Court after considering the evidence on record has concluded that the penalty of dismissal from service imposed by the employer is shockingly disproportionate to the proved misconduct. Accordingly has interfered with the penalty and passed the award as referred to above.

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Learned counsel appearing for the petitioner

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would submit that the penalty of dismissal from service imposed by the employer was just and proper for proven misconduct of unauthorized absence of 438 days. In addition to that he would contend that on 13 occasions earlier, the respondent - employee had unauthorizedly remained absent and an enquiry was conducted against the employee, and on all 13 occasions the charges were proved against him and suitable penalty was imposed.

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HC-KAR

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However, despite suffering penalty on 13 occasions, the respondent - employee has not changed his habit of remaining unauthorizedly absent for duty and once again it was proved that he was unauthorizedly absent for 438 days. Taking into consideration the past conduct of the respondent - employee, the disciplinary authority has rightly held that the respondent deserves penalty of dismissal from service. It is his further submission that the Labour Court has not considered the evidence on record and its finding that the penalty imposed is shockingly disproportionate to the proven misconduct is without any basis. The Labour Court has failed to take into consideration past 13 misconducts proved against the respondent - employee and the lenient view shown earlier by the management.

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It is also his further submission that respondent - employee has not approached the Labour Court within a reasonable time. The dispute is raised two years after the dismissal from service. It is further submitted that in the

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HC-KAR

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year 2022, the respondent - employee again faced one more disciplinary enquiry and again he met with an order of dismissal from service.

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Learned counsel for the respondent - employee

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would submit that the Labour Court has rightly exercised the power under Section 11A of the Industrial Disputes Act, 1947 and for 438 days unauthorized absence, the penalty of dismissal imposed by the petitioner is disproportionate and Labour Court is justified in interfering with the said penalty.

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It is urged that the respondent has accepted the penalty of deduction in two increments as well as the denial of back wages with humility and has not challenged the award of the tribunal and on 01.10.2019, this court has directed the petitioner to join the service and since then up to 2022, the respondent has worked under the petitioner and in the year 2022, one more disciplinary enquiry was initiated against the respondent and again he is dismissed from service. Thus, he would contend that

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HC-KAR

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the court need not interfere with the award passed by the

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Labour Court.

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This court has considered the contentions raised

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at the bar and perused the records.

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From the records placed before this court, it is not in dispute that on 13 occasions earlier, respondent was found guilty of charges of unauthorized absence and on all those occasions, the petitioner - management has shown leniency and has awarded penalty other than the dismissal of service. On the 14^th occasion, again noticing the fact that he was unauthorizedly absence for 438 days, the petitioner - management by also taking into consideration the past misconduct has decided to terminate the employee from service. This penalty imposed by the petitioner cannot be termed as 'shockingly disproportionate to the misconduct alleged'.

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From the Service Rules applicable, the petitioner is competent to impose penalty of dismissal

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HC-KAR

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from service in case of unauthorized absence and admittedly, the respondent was unauthorizedly absent on 14 occasions and despite being found guilty on 13 occasions earlier and despite leniency shown by the management, the respondent has not chosen to mend his attitude. This being the position, the decision of the management in imposing the penalty of dismissal cannot be termed as 'shockingly disproportionate to the misconduct alleged'. For the same reason, this court does not find any reason to uphold the award passed by the Labour Court. It is also admitted that in the year 2022 the respondent is again dismissed from service for unauthorized absence. The award passed by the Labour Court has to be interfered. Hence, the following:

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O R D E R

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(i) The writ petition is allowed .

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(ii) The award dated 26.03.2018 passed by the Labour Court, Mysore in REF.NO.79/2016, is set aside.

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HC-KAR

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(iii) The penalty of dismissal from service imposed by the petitioner is upheld.

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(iv) It is made clear that this court has not expressed any opinion on the legality of the dismissal order, which is said to have been passed in the year 2022.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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SS List No.: 1 Sl No.: 28 CT: BHK

Division Controller v. Mallikarjuna

Case brief

What is this about?

What did the court decide?

Division Controller v. Mallikarjuna

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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Statutes considered

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Coram

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