Bangalore Metropolitan Transport Corporation vs Gaffar Khan

Ram Mohan Reddy

Petitioner-Road Transport Corporation aggrieved by the award dt. 15.5.2010 insofar as it relates to exercise of discretion u/s 11A of the Industrial Disputes Act, 1947, for short ''ID Act'' to interfere with the order of dismissal to modify the punishment, to one of a lesser punishment of withholding three increments with cumulative effect without back wages and consequential benefits, but with continuity of service for the purpose of terminal benefits not including increment, promotion, etc. has presented this petition.

There is no dispute that the respondent, a driver in the petitioner-Public Road Transport Corporation remained unauthorised absent from 2.3.2005 to 31.5.2006, for a year and two months, following which disciplinary proceeding was initiated, domestic enquiry held extending reasonable opportunity of hearing followed by a report holding the charge proved, resulting in the order dt. 19.7.2006 dismissing the respondent from service. It is also not in dispute that while in service during the period of nine years, the respondent was visited with minor punishments on six occasions for having remained absent intermittently for 207 days.

Before the Labour Court, the respondent-workman conceded to the validity of the domestic enquiry when the preliminary issue was answered in the affirmative holding the enquiry as fair and proper. In the evidence let in by the respondent over victimisation, for the first time medical records were produced which do not constitute material on record over the justification for the absence of the respondent due to medical treatment. A perusal of those records disclose the respondent having undergone medical check and reports opining that he did not suffer from any illness. The respondent''s assertions to have submitted leave applications when not accepted in the absence of acknowledged copies of leave applications, the Labour Court concluded that the charge of unauthorised absence for one year and two months was established. So also the Labour Court observed that the respondent remained intermittently absent. in the past for about 207 days whence he was visited with minor punishments/penalties on six occasions.

In the fact situation, absence from duty without prior permission or sanction of leave is indiscipline, while habitual absenteeism is gross indiscipline. Fact that respondent, when in the past, was punished for unauthorised absence did not have any reformatory effect but remained absent for one year and two months thereafter, proved to be unauthorised in an enquiry into the said charge, on being extended reasonable opportunity of hearing, it is needless to state that the respondent was a habitual absentee.

In the circumstances, there being no mitigating circumstances to impose a lesser punishment than dismissal from service, but extenuating circumstances resulting in the order of dismissal, the Labour Court, in my opinion fell in error in interfering with the order of dismissal to modify the punishment to a lesser punishment, and hence calls for interference with the award impugned.

It is useful to refer to the observations in the following reported opinions:

i) A Division Bench of this Court in the ease of Divisional Controller NWKRTC Vs. Raghavendra Madhava Katti, , followed the observation of the Supreme Court; in the ease of M/s Burn & Company Limited -v-Their Workmen and Others AIR 1959 SC 529 , holding that unauthorised absence is grave misconduct and grave violation of discipline, greatly jeopardise the functioning of the establishment, more appropriately all employees of a Road Transport Corporation, remaining absent having serious repercussions on functioning of the Corporation and hindering of service to public for which the Corporations have been brought into existence under the Road Transport Corporations Act 1951. required a treatment of such dereliction of duty with certain amount of seriousness. Their lordships of the Division Bench further followed the observations of the Apex Court in the case of Kerala Solvent Extractions Ltd. Vs. A. Unnikrishnan and Another, deprecating the judicial tendencies to grant unwarranted reliefs by mere basing on misplaced sympathy, generosity and private benevoience;

ii) In Delhi Transport Corporation Vs. Sardar Singh, the Apex Court having regard to the absence from duties observed that the conduct of remaining absent without obtaining leave in advance is nothing but irresponsible in extreme and can hardly be justified. In addition, it was observed that it is the burden of the employee who claims that there was no negligence or lack of interest to establish it by placing relevant material;

iii) In L and T Komatsu Ltd. Vs. N. Udayakumar, the Apex Court held that if in the past the employee has remained absent without prior permission and thereafter commits the similar misconduct which is proved in a domestic enquiry after following the principles of natural justice, the habitual unauthorised absenteeism is grave indiscipline, and termination from service does not call for interference u/s 11-A of the I.D. Act.

iv) In Mahindra and Mahindra Ltd. Vs. N.B. Naravade etc., the Apex Court observed thus:

It is no doubt true that after introduction of Section 11-A in the Industrial Disputes Act, certain amount of discretion is vested with the Labour Court / Industrial Tribunal in interfering with the quantum of punishment awarded by the management where the workman concerned is found guilty of misconduct. The said area of discretion has been very well defined by the various judgments of this Court referred to hereinabove and it is certainly not unlimited as has been observed by the Division Bench of the High Court. The discretion which can be exercised u/s 11-A is available only on the existence of certain factors like punishment being disproportionate to the gravity of misconduct so as to disturb the conscience of the court, or the existence of any mitigating circumstances which require the reduction of the sentence, or the past conduct, of the workman which may persuade the Labour Court to reduce the punishment.

Having regard to the principles laid down in the aforesaid reported opinions of the Apex Court and that of this court, the award of the Labour court call for interference, in exercise of extraordinary writ jurisdiction under Article 227 of the Constitution of India.

In the result, the writ petition is allowed. The award impugned insofar as it relates to the Labour Court''s exercise of discretion u/s 11-A of the Act to interfere with the order of dismissal and modifying the punishment to a lesser punishment is quashed and I.D. No. 40/2006 stands rejected.