H.L. Mahendra vs Divisional Controller, Disciplinary Authority

Mohan Reddy, J.—A driver in the Respondent-Public Road Transport Corporation having remained absent from service without prior sanction or permission of leave from February 15, 2003 onwards, was issued with a call memo dated March 11, 2003 to report to duty which when acknowledged the Petitioner did not report and remained absent up to April 18, 2003 for a period of 63 days. The Disciplinary Authority being of the opinion that there were grounds to inquire into the allegation of unauthorized absence, issued an articles of charge, followed by the appointment of an Enquiry Officer, holding a domestic enquiry and report of the Enquiry Officer returning a finding that the charge was proved. The Disciplinary Authority on an independent assessment of the facts, circumstances and evidence on record, more appropriately, in the absence of relevant material to substantiate and justify the unauthorized absence, of which the Petitioner had the special knowledge, held the charge proved and having regard to the past record of the Petitioner, imposed the punishment of termination of service by order dated December 18, 2003.

The said order was called in question by filing a petition invoking Section 10(4-A) of the Industrial Disputes Act, 1947 before the Additional Labour Court, Bangalore, whence it was registered as I.D. No. 42/2004 (old) new I.D. No. 137/2006, arraigning the Respondent -Road Transport Corporation as second party, which, on notice, entered appearance and resisted the petition by filing statement of objections. The Labour Court in the premise of pleadings of parties, framed issues, one of which related to the validity of the domestic enquiry and answered the same in the affirmative by order dated March 10, 2008. In other words, the enquiry was held to be fair and proper. There afterwards the Petitioner was examined as W.W.I and 4 documents wore marked as Exhibits W-1 to W-4, while for the Respondent - Corporation one witness was examined as M.W.I and 9 documents wars marked as Exhibit. Ml to M9. The Labour Court having regard to the material on record and in the absence of relevant material constituting substantial local evidence of the fact that the Petitioner suffered from swelling and pain in the right hand as also back pain and typhoid, during the period February 15, 2003 to April 18, 2003, hold the charge proved. The history sheet Exhibit P-9 of the Petitioner disclosed that he had remained unauthorized absent;

(i) for 133 days from April 28, 2000 to September 7, 2000 and was imposed with the punishment of withholding of one increment.

(ii) Unauthorized absent for 46 days from May 9, 2001 to July 14, 2001 whence he pay was reduced by one stage for one year.

(iii) Unauthorized absent for 27 days from June 21, 2002 to July 17, 2002 whence he was censured.

(iv) Unauthorized absent for 18 days from January 11, 2003 to January 28, 2003 for which he was censured and thereafter for 63 days from February 15, 2003 to April 18, 2003.

The Labour Court having noticed that the past record of services did not disclose mitigating circumstances so as to impose a lesser punishment, declined to interfere with the punishment of dismissal and by award dated December 18, 2008 dismissed the claim petition.

Having heard the learned Counsel for the Petitioner and examined the award impugned, there can be no dispute that the Petitioner remained unauthorized absent for a period of 63 days from February 15, 2003 to April 18, 2003. The period of unauthorized absence though attributed to back pain, typhoid, swelling and pain in the right hand, nevertheless, there was not a titer of evidence to substantiate the said fact, in the form of Medical records, except for the unsubstantiated and uncorroborated self interest say of the Petitioner.

Although a feeble attempt was made by the learned Counsel to contend that in identical circumstances co-employee who had remained absent for more than 63 days had been visited with minor punishments and therefore the Petitioner was victimized, in my considered opinion cannot be countenanced. I say so because, the Labour Court in great elaboration extracted the past record of service of the Petitioner disclosing that it was not for the first time that the Petitioner had remained absent, but was habituated to unauthorized absence every year commencing from 2000, 2001, 2002, 2003 and therefore it cannot be said that the case of the co-workers are identical to that of the Petitioner. The bad past record of service of the Petitioner when considered by the Labour Court, was justification to decline interference with the order of punishment.

A Division Bench of this Court in Divisional Controller NWKRTC Vs. Raghavendra Madhava Katti, following the observation of the Supreme Court in Burn & Co. v. Their Workmen and Ors. AIR 1959 SC 529 : 1959 I LLJ 450 held that unauthorized absence is grave misconduct and grave violation of discipline, greatly jeopardize 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 services 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 tendency to grant unwarranted reliefs by mere basing on misplaced sympathy, generosity and private benevolence.

In Delhi Transport Corporation Vs. Sardar Singh, Apex Court having regard to 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.

On a fair consideration of the material on record, the award is well merited, fully justified and the reasons, findings and conclusions are neither shown to suffer from infirmities in law nor substantiated to be based on no evidence or vitiated on account of perversity of approach to call for a different conclusion and interfere with the verdict.

Writ Petition is without merit and is accordingly rejected.