Karnataka State Road Transport Corporation vs Shamanna

Ram Mohan Reddy, J.—Karnataka State Road Transport Corporation (''corporation'' for short) aggrieved by the award dated 14th July, 2011 in Ref. No. 105 of 2007 of the Labour Court, Mysore. Annexure-G, has presented this petition. Respondent, a conductor in the petitioner-corporation, was found to have remained absent from duty without prior permission or sanction of leave from 19-4-2000 onwards, whence disciplinary proceedings were initiated by serving an articles of charge on the workman and appointing an Enquiry Officer. In the domestic enquiry, respondent filed a statement dated 23-6-2004, Annexure-C, admitting the fact of having remained absent without prior permission or sanction of leave from 19-4-2001. The Enquiry Officer submitted a report holding the charge proved, following which the Disciplinary Authority taking into consideration the unauthorized absence for 1243 days, by order dated 5-1-2005, dismissed the respondent-employee from service.

Respondent having initiated conciliation proceeding under the Industrial Disputes Act, 1947 (for short, ''the Act''), the State Government referred the Industrial dispute for adjudication to the Labour Court, Mysore. Parties filed their respective statements. Where afterwards the Labour Court framed an additional issue over the validity of the domestic enquiry.

Petitioner examined one witness as P.W. 1 and marked 19 exhibits, while, respondent was examined as D.W. 1 and did not mark documents. The Labour Court returned a finding in the affirmative over the additional issue, holding the domestic enquiry as fair and proper. There afterwards respondent did not lead evidence on victimisation, hence, the Labour Court on the material on record held that the misconduct of unauthorised absence from 4-4-2001 to 14-1-2004 for 3 years, 11 months was proved. However the Labour Court having noticed that the respondent rendered service of 20 years and had attained the age of 55, held that the imposition of punishment of dismissal from service was inhuman, arbitrary and unjust as also disproportionate to the gravity of the misconduct proved. Accordingly the Labour Court by the award impugned reduced the punishment from dismissal to compulsory retirement, entitling the workman to all monetary benefits while treating the period of absence as leave without pay if no leave is at his credit and to count the period of absence as service for terminal benefits.

Learned Counsel for the petitioner submits that the Labour Court having recorded a finding of fact of proof of charge of continuous unauthorised absence for a period of 3 years and 11 months, not being a minor misconduct, that too in a public utility service, was not justified in treating the misconduct lightly to interfere with the order of dismissal on the premise that the respondent had put in 20 years of service and aged 55. Learned Counsel hastens to add that the extraordinary jurisdiction u/s 11-A of the Act must be exercised judicially and only if there were any mitigating circumstances by which the order of the dismissal could be held to be shockingly disproportionate to the misconduct. Learned Counsel further submits that if the period of absence of 3 years and 11 months is condoned and the workman entitled to monetary benefits while computing the said period for terminal benefit, would amount to rewarding him with a premium for the serious misconduct.

Learned Counsel for the petitioner places reliance upon the decision in North Eastern Karnataka R.T. Corpn. Vs. Ashappa, .

Per contra learned Counsel for the respondent seeks to sustain the award of the Labour Court as being well-merited, fully justified and not calling for interference.

Regard being had to the admitted fact that the respondent remained unauthorisedly absent continuously for a period of 3 years 11 months, the Labour Court was fully justified in recording a finding that the misconduct was proved. Although a vain effort was made by the workman to place before the Court photocopies of certain certificates marked as Ex. M. 16 to justify absence from service on medical grounds from 4-4-2001 to 14-1-2004 nevertheless, one certificate dated 19-4-2001 certifies that the workman was fit to resume duty on 28-5-2001 while the next certificate certifies that the workman is suffering from jaundice of the liver with Cirrhosis and advised rest from 25-9-2001 to 30-11-2002.

The Labour Court having noticed the aforesaid certificates, though, observed that in the absence of medical record, prescription and medical bills, the certificates were unacceptable as credible evidence, nevertheless held that since the respondent served the petitioner for 20 years and was aged 55, invoked Section 11-A of the Act to interfere with the quantum of punishment on the premise that the order of dismissal was grossly disproportionate to the gravity of the misconduct proved.

The observation of the Apex Court in North-Eastern Karnataka Road Transport Corporation''s case, are opposite:

"8. Remaining absent for a long time, in our opinion, cannot be said to be a minor misconduct. The appellant runs a fleet of buses. It is a statutory organisation. It has to provide public utility services. For running the buses, the service of the conductor is imperative. No employer running a fleet of buses can allow an employee to remain absent for a long time. The respondent had been given opportunities to resume his duties. Despite such notices, he remained absent. He was found not only to have remained absent for a period of more than three years, his leave records were seen and it was found that he remained unauthorisedly absent on several occasions. In this view of the matter, it cannot be said that the misconduct committed by the respondent herein has to be treated lightly.

In Delhi Transport Corporation Vs. Sardar Singh, , this Court opined:

"Conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when same is unauthorised. Burden is on the employee who claims that there was no negligence and/or lack of interest to establish it by placing relevant materials. Clause (ii) of Para 4 of the Standing Order issued under Regulation 15(1) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952 shows the seriousness attached to habitual absence. In clause (i) of the Para 4 thereof, there is requirement of prior permission. Only exception made is in case of sudden illness. There also conditions are stipulated, non-observance of which renders the absence unauthorised."

x x x x x x x

X X X X X X X

In State of Rajasthan and Another Vs. Mohammed Ayub Naz, , this Court held:

"For the foregoing reasons, we are of the opinion that a Government servant who has willfully been absent for a period of about 3 years and which fact is not disputed even by the learned Single Judge of the High Court, has no right to receive the monetary/retiral benefits during the period in question. The High Court has given all retrial benefits which shall mean that a lump sum money of lakhs of rupees shall have to be given to the respondent. In our opinion, considering the totality of the circumstances, and the admission made by the respondent himself that he was willfully absent for 3 years, the punishment of removal imposed on him is absolutely correct and not disproportionate as alleged by the respondent......""

Applying the aforesaid observations to the facts of this case there can be no doubt that the Labour Court was not justified in recording a finding that the order of dismissal was grossly disproportionate to the misconduct proved, so as to interfere with that order and reduce the punishment to one of compulsory retirement and also entitle the respondent to terminal benefits by treating the period of absence as on duty.

In the result, this petition is allowed the award of the Labour Court insofar as it relates to reducing the punishment of dismissal to compulsory retirement and entitling the respondent to certain benefits is quashed. The reference is rejected.