Divisional Controller, NEKRTC Raichur Division through its Managing Director, by its Chief Law Officer vs Chandrmaappa

Ram Mohan Reddy, J.—Petitioner, a public Road Transport Corporation aggrieved by the award dated 15.11.2010 in Reference No. 35/2009 on the file of the Labour Court, Gulbarga has presented this petition. Petitioner initiated disciplinary proceedings against the respondent, a driver, un-authorisedly remaining absent from duties for 142 days from 01.09.2003 to 20.01.2004 and onwards without prior permission or sanction of leave. In the domestic enquiry though opportunity of hearing was extended to the respondent, nevertheless did neither appear in enquiry nor file an explanation or justify his absence, on medical grounds. The Disciplinary Authority accepted the report of the Enquiry Officer, held the respondent guilty of the charges and regard being had to the past record of service disclosing that the respondent had remained un-authorisedly absent on several occasions for a period of 1291 days in a span of 27 years being aggravating and not mitigating circumstance, imposed the punishment of dismissal from service by order dated 05.08.2004.

That order when called in question by the respondent invoking provisions of Industrial Disputes Act, 1947 (for short ''the Act), the State Government, by order dated 17.01.2009, referred the industrial dispute for adjudication before the Labour Court, Gulbarga. Petitioner having responded to the claim statement, filed a counter statement bringing forth the facts and circumstances leading to the order of dismissal. In the premise of pleading of the parties, the Labour Court framed four issues, the first of which related to the validity of the domestic enquiry. Parties though did not adduce oral evidence, nevertheless placed material before Court which when considered, the Labour Court, by order dated 25.05.2010 answered, in the affirmative, the first issue, holding that the enquiry was fair and proper. There afterwards, the Labour Court by the award impugned though held that the respondent was absent un-authorisedly from 01.09.2003 to 20.01.2004 an act of misconduct, nevertheless held that the punishment of dismissal was disproportionate to the gravity of the misconduct held proved and accordingly, invoked Section 11A of the Act, to reduce the punishment to one of withholding two future annual increments with cumulative effect while denying back wages from the date of dismissal till the date of reinstatement.

Learned counsel for the petitioner-Road Transport Corporation submits that the respondent having failed to place relevant material constituting substantial legal evidence to justify the absence was for acceptable reasons, the Labour Court, having recorded a finding that the respondent was guilty of the act of misconduct of un-authorised absence, fell in error in interfering with the punishment of dismissal, hence perverse. Regard being had to the fact that the petitioner is a public Road Transport Corporation where the conduct of the respondent in remaining absent, without obtaining leave in advance, is nothing but irresponsible in extreme and can hardly be justified.

Learned counsel hastens to add that the finding of the Labour Court that there was no material to establish the previous misconduct of un-authorised absence of 1291 days, is perverse, in the light of the consideration by the Disciplinary Authority of relevant information of the fact of previous similar misconduct leading to termination of service followed by reinstatement of the respondent, as recorded in the order of punishment.

Per contra, learned counsel for the respondent-workman seeks to sustain the award impugned as being well merited, fully justified and not calling for interference. In addition, learned counsel for the petitioner submits that the respondent has since attained the age of superannuation.

Having heard the learned counsel for the parties, perused the pleadings, the evidence both oral and documentary and examined the award impugned, the only question for decision making is:--

Whether the Labour Court, in the facts and circumstances, was justified in recording a finding that the punishment of dismissal was disproportionate to the gravity of the misconduct held proved so as to interfere with the punishment of dismissed to reduce it to one of withholding two future annual increments? 7. Facts not being in dispute and there being no material constituting substantial legal evidence of the fact that the respondent remained absent after obtaining prior permission and sanction of leave, the Labour Court was fully justified in recording a finding that the respondent had committed an act of misconduct of remaining un- authorisedly absent for 142 days.

It is no doubt true that the Disciplinary Authority recorded, in the order of dismissal the past record of service of the, respondent that he remained unauthorisedly absent for 1291 days during a spell of 27 years and was once dismissed and thereafter reinstated. Mere making a reference to the past record of service is in sufficient in an adjudication of the Industrial dispute. It was for the petitioner-Corporation to place relevant material to substantiate the past record of misconduct committed by the respondent-workman, in the absence of which the Labour Court, in my considered opinion, was fully justified in holding that there was no material to establish the said material fact.

Petitioner-Corporation is the custodian of all records of to the respondent-workman and therefore, ought to have placed that material before Court. Having not done so, it cannot be said that the Labour Court had committed an error in law in recording a finding over non availability of past misconduct.

Be that as it may, fact that the respondent remained absent and was away from duty without prior permission and sanction of leave for a period of 142 days, does constitute a serious misconduct.

Reference may made to the decision of this Court in A. Ganesh Reddy Vs. The Chief Traffic Manager, , wherein, this Court follow the decision of a Division Bench as well as the judgments of the Apex Court holding that unauthorised absence is a grave misconduct and grave violation of discipline, greatly jeopardising the functioning of the establishment, more appropriately employees of a Road Transport Corporation remaining absent, having serious repercussions on the functioning of the Corporation and hindering service to public for which the Corporation had been brought, into existence under the Road Transport Corporation Act, 1950, required a treatment of such dereliction of duty with certain amount of seriousness, accordingly, upheld the award of the Labour Court declining to interfere with the order of dismissal for unauthorised absence. In the factual matrix noticed supra, the absence of the respondent from duty is not justified, it cannot but be said that the respondent exhibited negligence and lack of interest in the discharge of his duties. In the absence of past record of service, it is no doubt true that the dismissal from service cannot be characterised as shockingly disproportionate to the misconduct held proved, calling for interference under Section 11A of the Act. However, since the respondent has attained the age of superannuation, it is appropriate to interfere with the award of the Labour Court.

In the result, petition is allowed in part. The award of the Labour Court in so far as it relates to imposition of punishment of withholding two future annual increments with cumulative effect as a measure of punishment, is quashed, the punishment order of dismissal is reduced to removal entitling the respondent to retirement benefits and continuity of service for retirement benefits only and in all other respect remains unaltered.