Smt a R Sudha Vs the Divisional Controller

AGED ABOUT 59 YEARS, W/O. LATE K. MANJUNATH, C/O. J. SRIKANTHA, LAKSHMI SHREE NILAYA, 1ST FLOOR, 4TH A CROSS, NEAR WATER TANK, VIDYANAGAR, TUMKUR-572 101.

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…APPELLANT

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(BY SRI. MUKKANNAPPA S B., ADVOCATE)

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AND:

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Digitally

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signed by VASANTHA KUMARY B K Location: HIGH COURT OF KARNATAKA

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THE DIVISIONAL CONTROLLER KARNATAKA STATE ROAD TRANSPORT CORPORATION, BANGALORE CENTRAL DIVISION, K.H. ROAD, SHANTHINAGAR, BANGALORE-560 027.

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…RESPONDENT

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(BY Ms. H.R. RENUKA, ADVOCATE)

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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 26.06.2024 PASSED BY THE LEARNED SINGLE JUDGE IN WP No-1471/2020 C/W WP No-47053/2018 AND CONSEQUENTLY DISMISS THE WP No-47053/2018 FILED BY THE RESPONDENT CORPORATION BY CONFIRMING THE AWARD PASSED BY THE

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LABOUR COURT AT BANGALORE IN I.D No-4/2016 AT ANNEXURE-L TO MEET THE ENDS OF JUSTICE.

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THIS APPEAL, COMING ON FOR PRELIMINARY HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE T.M.NADAF

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE D K SINGH)

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The present intra Court appeal has been filed impugning the judgment and order dated 26.06.2024 passed by the writ Court in W.P.No.1471/2020.

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The parties are referred to as per their ranking before the writ Court, for the sake of convenience.

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The petitioner, delinquent employee was appointed as conductress in the Karnataka State Road Transport Corporation (hereinafter referred to as 'KSRTC') on 18.03.2002 and she was placed on probation. She was working in Depot-2, however, vide order dated 10.01.2014 she was transferred to Depot-6 which is said to be only 1.5 kilometres away from the Depot-2. On transfer, she was relieved from Depot-2 on 28.04.2014. The petitioner challenged the said transfer order by filing W.P.No.28145/2014 before this Court. However, the

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said petition came to be dismissed as withdrawn by this Court vide order dated 03.07.2014. Despite dismissal of the writ petition, which was filed by the petitioner challenging the transfer order, the petitioner did not join duty and absented herself from duty from 01.05.2014.

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A report was submitted by the Depot Manager dated 12.05.2014 about the petitioner's unauthorised absence. Based on the said report, the disciplinary authority by letter dated 22.05.2014 called upon the petitioner to join the duty. However, despite the said letter, she did not turn up. On the very same day, the article of charge was issued alleging her unauthorised absence from duty with effect from 01.05.2014. The Inquiry Officer conducted the inquiry and submitted the

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inquiry report and after accepting the inquiry report, the disciplinary authority imposed the punishment of dismissal from service vide order dated 01.12.2015.

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The petitioner raised an industrial dispute under section 10(4-A) of the Industrial Disputes Act, 1947 in I.D. No.04/2016 before the III Additional Labour Court, Bengaluru. The Labour Court found the domestic inquiry as not fair and

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proper and allowed the parties to lead evidence before it. The parties led evidence before the Labour Court. The Labour Court having found that the second party Corporation did not explain before the Labour Court that the absence of the employee was willful and the employee having proved that the absence was not willful and due to her health conditions, considered that the order of dismissal imposed is disproportionate to the misconduct and modified the order with that of withholding two annual increments with cumulative effect directing the Corporation to reinstate the employee to her original position within 30 days from the date of receipt of the publication of award with 50% back wages from the date of dismissal till the date of reinstatement with all other consequential benefits. The award of the Labour Court came to be challenged by the KSRTC in W.P.No.47053/2018 while the employee filed W.P.No.1471/2020 claiming 100% back wages. The Writ Court found that the petitioner was relieved from duty at Depot-2, did not report to Depot-6 and unauthorizedly absented herself with effect from 01.05.2014.

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The learned Single Judge was of the view that the award dated 02.12.2017 passed by the Labour Court, Bangalore was unsustainable in view of the fact that the petitioner's unauthorized absence from duty was proved. When the petitioner abandoned the services, the punishment of dismissal from service cannot be said to be a highly disproportionate. Accordingly, allowed the Writ Petition filed by the Corporation quashing the award passed by the Labour Court, confirmed the order of punishment dated 01.12.2015 and dismissed the Writ Petition filed by the employee. It is this common order passed by the Writ Court is called in question in this appeal.

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Heard, Sri.S.B.Mukannappa, learned counsel appearing for the employee and Smt.H.R.Renuka., learned counsel appearing for the Corporation.

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Sri.S.B.Mukannappa., with all vehemence submits that the call notice was issued which even according to the corporation on 22.05.2014 stating that the employee was unauthorizedly absent since 01.05.2014 and directed her to report to duty, failing which proper disciplinary action would be

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considered against her, however on the very same day i.e., on 22.05.2014, the charge sheet along with imputation of charge came to be issued. Nothing is placed on record by the KSRTC to show that the Corporation had rejected the leave application submitted by the employee and called upon her to join the duty. He further invites our attention to the charge sheet issued to contend that the charge sheet had been issued under Rule 22 of the Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971 (for short, 'the 1971 Regulations'). He contends that the said Rule prescribes for minor penalties, whereas the inquiry was held and disciplinary authority based on the inquiry report had passed the order imposing major punishment. He further submits that even assuming but not conceding in view of law laid down by the Supreme Court in catena of cases that unless and until it could have been proved that absenteeism was willful, the order of dismissal imposed for such an absence considering it as a misconduct is highly excessive and disproportionate to the misconduct committed. In the case on hand, employee had proved that absenteeism was not willful but due to her health issues. The Writ Court has failed to consider these aspects of

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the matter and despite noticing that the preliminary issue framed by the Labour Court is answered against the Corporation, proceeded to quash the order passed by the Labour Court and sought to allow the appeal.

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Though Smt. Renuka, learned counsel for the Corporation in contrast tried to persuade us by submitting that the employee after transfer to Depot-6 failed to report to duty and remained unauthorizedly absent since then till the conclusion of inquiry proceedings and order of disciplinary authority, this conduct of the employee clearly establishes abandonment of service. In this circumstance, the order passed by the Writ Court is well-reasoned and does not call for any interference at the hands of this Court.

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Having considered the rival submissions, we have perused the entire appeal paper.

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The Writ Court has failed to consider the argument of Rule 22 of the 1971 Regulations on the premise that this was not argued before the Labour court. The issue raised is a legal issue regarding application of Rules. Rule 22 prescribes for minor penalties. If the charge sheet is issued invoking Rule 22,

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the disciplinary authority ought not to have exercised power for imposing major penalty. There is one more reason for us to consider the order passed by the Labour Court with certain modification that, except the one incident of absenteeism alleged, there is no past history against the employee canvassed by the Corporation. We notice that both the call notice to report to duty as well as the charge sheet were issued on the very same day i.e., on 22.05.2014. The Corporation has failed to explain the mortal hurry in issuing call notice and charge sheet simultaneously on the very same day.

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Though Smt. Renuka, submitted that the employee

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was called to report to duty on several occasion, however nothing is placed on record in writing except the first call notice followed by the charge sheet. It is not in dispute that the leave applications have been submitted by the employee, however there is some negligence on the part of the employee to get the leave sanctioned and then proceeded on leave. But for the reason pleaded by the employee that since she was suffering

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from health condition, she was not in a position to approach the Corporation, though same is not appealing to us, but there is

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no willful absenteeism shown upon considering the conduct of both the petitioner as well as the Corporation. In the peculiarity of facts and circumstances of the case on hand, we are of the opinion that the Writ Court has failed to consider this aspect of the matter while quashing the entire order passed by the Labour Court which has exercised its power under Section 11-A of the Industrial Disputes Act, 1947. We therefore, restore the order passed by the Labour Court so far as setting aside the order of dismissal and withholding two annual increments with cumulative effect.

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At this stage, Sri.Mukannappa, submits that the employee is in the verge of retirement, she is attaining her age of superannuation on 30.06.2026. In that view of the matter,

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we restore the order of Labour Court so far as withholding of two annual increments with cumulative effect and setting aside the order of dismissal, however declined the reliefs of reinstatement as well as back wages awarded by the Labour court.

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We direct the Corporation to treat the employee as in service and grant her continuity of service only with respect

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to terminal, retiral and pensionary benefits in accordance with the law. To that extent, we proceed to pass the following:

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ORDER

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(i) The Writ Appeal is allowed in part .

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(ii) The impugned order dated 26.06.2024 passed by the Writ Court is set aside.

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(iii) The order of the Labour Court setting aside the order of dismissal and with respect to withholding two annual increments with cumulative effect is confirmed. However, the direction for reinstatement with 50% back wages is declined.

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(iv) The respondent Corporation is directed to treat the petitioner as in service throughout and grant her continuity of service only for terminal, retiral and pensionary benefits, which shall be disbursed in her favor by the Corporation within two months from the date

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of receipt of certified copy of this order and grant appropriate pension in accordance with

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