Management, B.M.T.C. vs E. Balakrishna

A.N. Venugopala Gowda, J.—The respondent was working as a conductor in the petitioner-Corporation, He remained absent without submitting leave application and obtaining prior sanction with effect from 25.12.1996. He did not report to duty, despite a call letter sent to his residence on 8.1.1997. The call letter was returned as ''unclaimed''. On 3.2.1997, Articles of Charge was sent to the residence of the petitioner and the same was returned as ''unclaimed''. Enquiry Officer was appointed on 21.7.1997 to conduct a domestic enquiry. A publication was made in a newspaper on 2.8.1997, notifying the respondent to attend the enquiry on 20th August 1997. The respondent did not attend the enquiry and hence, he was placed ex parte and upon recording the statement of the manager of the Depot-reporting authority, with regard to the unauthorized absence of the petitioner for duty with effect from 25.12.1996, the enquiry officer submitted report dated 28.9.1997, holding the respondent guilty of the charge. The respondent was issued a show cause notice along with the copy of the enquiry report, to submit his explanation. The disciplinary authority considering the record of the enquiry, finding the respondent guilty, dismissed the respondent from service on 23.9.1998 i.e., for the commission of misconduct of unauthorized absence with effect from 25.12.1996. The respondent raised an industrial dispute and filed a claim petition u/s 10(4A) of I.D. Act 1947 in the Labour Court at Bangalore. Counter having been filed, based on the pleadings, four issues were raised for determination. A memo dated 21.1.2004 was filed on behalf of the workman, conceding fairness of the domestic enquiry held by the Management. Hence, issue No. 1 was answered in the affirmative, i.e., the D.E. conducted against the workman was fair and legal. Considering the evidence brought on record by the parties, it was found that the workman had not submitted any leave application. However, it was found that the workman was unwell and was on treatment and as such it was held that the Management could not expect him to report for duty and discharge the normal duty. Having arrived at said conclusion, taking notice of Exs. W8, W9 and W10, orders passed against other workman who remained unauthorizedly absent, the punishment imposed was held as disproportionate to the gravity of the misconduct. Consequently, the dispute/claim was allowed and the impugned order of dismissal was set aside and the Management was directed to reinstate the workman into service with continuity of service, but, without back-wages. Assailing the said Award, the Management has filed this writ petition.

Sri K.S. Bharath Kumar, learned advocate, contended that the fairness and legality of the disciplinary enquiry held having been conceded by the workman and the charge of unauthorized absence having been held as established, the Labour Court is not justified in interfering with the order of punishment and that the award passed, impugned herein, is arbitrary and illegal. Learned counsel further submitted that the respondent has not joined duty, despite the order passed by this Court on 6.9.2007, which shows that he has no interest in discharging the duty and that the workman has virtually remained absent for duty for nearly 16 years and hence interference is warranted. He submitted that the exercise of power u/s 11A of the Act by the Labour Court is unjustified and it is a case of misplaced sympathy and private benevolence.

Sri S.B. Mukkannappa, learned advocate appearing for the respondent, on the other hand, submitted that the Labour Court in exercise of judicial discretion vested in it u/s 11A of the Act has moulded the relief and hence the impugned Award may not warrant interference. Learned counsel did not dispute the statement made by Sri Bharath Kumar that the respondent has not joined duty after the interim order dated 6.9.2007 was passed in this writ petition.

The charge against the respondent was unauthorized absence for duty with effect from 25.12.1996. The Award passed by the Labour Court shows that the charge against the workman as having been established. The Labour Court has found that the workman was absent for duty with effect from 25.12.1996. Remaining absence for duty for a long time cannot be treated lightly. The respondent did not join duty even after the initiation of disciplinary proceedings and till the date of his termination from service on 23.9.1998. He has not joined duty even after passing of an order on 6.9.2007 in this writ petition.

In the case of Delhi Transport Corporation Vs. Sardar Singh, Apex Court has held as follows:

Conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when same is unauthorized. 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 Orders shows the seriousness attached to habitual absence. In clause (i) 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 unauthorized.

In the case of State of Rajasthan and Another Vs. Mohammed Ayub Naz, . Apex Court has held as follows:

For the foregoing reasons, we are of the opinion that a government servant who has wilfully 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 retiral 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 wilfully absent for 3 years, the punishment of removal imposed on him is absolutely correct and not disproportionate as alleged by the respondent.

This writ petition was filed on 21.4.2007 and the impugned award was stayed on 2.8.2007. Respondent filed on 28.8.2007, LA. No. 1, to direct the petitioner to comply with section 17B of I.D. Act, 1947. Considering the submissions made by the learned counsel appearing for the parties, on 6.9.2007, it was ordered as follows:

Learned counsel for the petitioner fairly submits that the petitioner instead of paying wages u/s 17B of the I.D. Act, 1947, will reinstate the Respondent into service subject to the result of the writ petition and he further submits that the Respondent may be directed not to re-main unauthorisedly absent.

In view of the said submission made by the learned counsel for the petitioner, I direct the petitioner to reinstate the Respondent into service. The reinstatement shall be subject to the result of the writ petition. The Respondent shall not remain unauthorisedly absent after reporting for duty. If the Respondent remains unauthorisedly absent after reporting for duty, the petitioner is at liberty to move for modification of this order. IA 1/2007 stands disposed of accordingly.

Indisputedly, the respondent has not rejoined duty till date. The Respondent has remained absent for duty with effect from 25.12.1996 till date, i.e., for a period of nearly 16 years.

The evidence on record shows that the Respondent absented from duty with effect from 25.12.1996. He had not submitted any leave application. The absence was unauthorized. The conclusion arrived at by the Enquiry Officer on the basis of the materials placed before it, which was accepted by the Disciplinary Authority, with which the Labour Court has virtually concurred, cannot be said to be without any basis. May be, the workman was unwell for some period. No credible record with regard to treatment obtained, if any, for the long period has not been produced. The workman could not have taken for granted that he can rejoin duty as and when he deems fit. The workman has not conducted himself in a disciplined manner. There is lack of interest and devotion to duty. The Labour Court having found that the workman had not submitted the leave application and that the report of the Depot Manager with regard to unauthorized absence being correct, could not have treated lightly the misconduct committed by the workman. Mere denial of back-wages cannot be a punishment for a workman who remained unauthorizedly absent for a very long period. The Labour Court while exercising the power u/s 11A of the Act, has not correctly moulded the relief. Keeping in view the peculiar facts and the circumstances of this case, in my opinion, justice would be sub-served, if the respondent is visited with the punishment of compulsory retirement for the proved misconduct of unauthorized absence. By not ordering so, Labour Court has committed error and illegality.

In the result, the writ petition is allowed and the impugned Award is quashed. The order passed by the petitioner on 23.9.1998 against the respondent, dismissing him from the service is also quashed. In place of the order of dismissal, there shall be an order of compulsory retirement of respondent with effect from 23.9.1998. The petitioner shall extend all the consequential benefits to the respondent, for the service rendered by him from the date he joined service till 23.9.1998. Compliance in two months. Parties to bear their respective costs.