Bangalore Metropolitan Transport Corporation vs Marappa

Ram Mohan Reddy

Petitioner-Public Road Transport Corporation aggrieved by the award dated 13.5.2010, Annexure-A In I.D.No. 60/2006. of the III Additional Labor Court, Bangalore, insofar as interference with the order of dismissal by modifying the punishment to one of withholding four annual increments with cumulative effect and denying back wages and consequential benefits while continuity of service only for the purpose of retirement benefit and not for any other benefits like increment, promotion etc., has preferred this petition.

There is no dispute that, the respondent, a conductor, having remained unauthorisedly absent from duties for 1334 days, intermittently, from June 1993 to October, 2004 was visited with minor punishments on 19 occasions. Thereafter too the respondent again remained unauthorisedly absent from 2.5.2005 to 24.8.2006 for one year and three months without prior permission or sanction of leave. Disciplinary proceeding when initiated, was followed by a domestic enquiry and a report holding the charge proved leading to the order dated 24.8.2006 dismissing the respondent from service. That order when called in question before the labor Court invoking Section 10(4-A) of the Industrial Disputes Act, 1947. the labor Court framed an issue over the validity of the domestic enquiry and answered the same in the negative holding that it was not fair and proper. Parties having let in evidence both oral and documentary, the labor Court recorded a finding that the respondent had remained unauthorisedly absent for one year and three months and that his past record of service for a period of 17 years disclosed unauthorised absence on 19 occasions, whence he was visited with minor punishments and therefore exercised discretion u/s 11-A, to interfere with the order of dismissal by imposing a lesser punishment.

There is force in the submission of Sri H.M. Muralidhar, learned counsel for the petitioner Corporation that the respondent a habitual absentee having remained unauthorisedly absent for 1334 days, intermittently, from June 1993 to October, 2004, there were no mitigating circumstances to impose a lesser punishment than that of dismissal, since unauthorised absence is indiscipline and habitual absenteeism is grave indiscipline. According to the Learned counsel there are no circumstances to hold that the respondent, workman was entitled to sympathy or private benevolence so as to interfere with the punishment of dismissal.

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

i) A Division Bench of this Court in the Case of Divisional Controller NWKRTC Vs. Raghavendra Madhava Katti, , followed the observation of the Supreme Court in the case 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 benevolence;

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 Labor 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 Labor Court to reduce the punishment.

Having regard to the admitted facts and the findings recorded by the labor Court, judicial discipline required the labor Court, to refrain from a show of sympathy, generosity and private benevolence, so as to interfere with the punishment of dismissal, and hence the award impugned calls for interference.

In the result, petition is allowed. The award impugned insofar as it relates to invoking a discretion u/s 11-A of the Act to interfere with the punishment of dismissal is quashed and the reference in I.D.No. 60/2006 is rejected.