Bangalore Metropolitan Transport Corporation vs S.G. Anand Gundappa

Ram Mohan Reddy

The Public Road Transport Corporation aggrieved by the interference with the order of dismissal dated 17.10.2006 dismissing the respondent Conductor from service for unauthorised absence for 1 year and 8 months and modifying the same to one of imposition of a lesser punishment by award dated 17.5.2010, in I.D.No.70/2006, of the III Additional Labour Court, Bangalore, has presented this petition.

Heard the learned counsel for the parties, perused the pleadings and examined the award impugned. There is no dispute that the respondent while in the service of the petitioner-Road Transport Corporation for 13 years, remained unauthorisedly absent, intermittently, for 211 days, whence minor punishments were imposed on 3 occasions, whereafter too, the respondent remained unauthorisedly absent from 21.2.2005 to 17.10.2006 for a period of 1 year and 8 months, resulting in disciplinary proceeding, a domestic enquiry, and a report holding the charge proved, followed by, the order dated 17.10.2006, dismissing the respondent from service.

Before the labour Court, the material on record, disclosed proof of misconduct, however, the punishment of dismissal when found to be disproportionate to the proved misconduct, was Interfered with, in exercise of discretion u/s 11-A of the Industrial Disputes Act, 1947, toy imposing a lesser punishment, on the premise that the respondent had 17 years of service to go and would reach the age of superannuation during the year 2027. The premise, on which, the interference was sought for, in my opinion, is not in compliance with the observation of the Apex Court in Mahindra and Mahindra Ltd. Vs. N.B. Naravade etc., , which reads 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.

This observation was followed in the subsequent decision of the Apex Court in L and T Komatsu Ltd. Vs. N. Udayakumar, , whence it was observed that a workman who had remained absent on several occasions in the past and continued to commit similar acts of misconduct resulting in disciplinary proceeding & domestic enquiry, extending an opportunity of bearing, and a import holding the charge proved, leading to the termination, was held to be habitual absenteeism.

A Division Bench of this Court in Divisional Controller NWKRTC Vs. Raghavendra Madhava Katti, , followed the observation of the Apex 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 jcopardise the functioning of the establishment, more appropriately, all employees of a Road Transport Corporation, remaining absent having serious repercussion on functioning of the Corporation and hindering 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 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.

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 in 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.

Having regard to the observations of the Apex Court, supra, the labour Court while exercising discretion u/s 11-A of the Act, failed to consider the relevant factors and therefore, the interference with the order of termination is unacceptable.

In the result, this petition is allowed. The award in question insofar as it relates to interference with the order of dismissal is quashed and the proceeding remitted to the III Additional Labour Court for consideration afresh on the question of interference u/s 11-A of the I.D. Act, after extending reasonable opportunity of hearing to the parties concerned and to pass an award strictly in accordance with law and in the light of the observations noticed supra.

Parties, since represented by learned counsel, are directed to be present before the III Additional Labour Court, on 16.12.2011, without further notice.