Sri R. Aneppa vs Bangalore Metropolitan Transport Corporation, Bangalore

B. Veerappa, J.—The workman has filed the above writ petition challenging the award dated 1.2.2014 made in Ref. No. 51 of 2012 by the III Additional Labour Court, Bangalore dismissing the reference under section 10(l)(c) and 10(l)(C)(d) confirming the dismissal order passed by the Appellate Authority dated 27.12.2010 and the Disciplinary Authority order dated 31.7.2007.

It is the case of the petitioner that he was appointed as the driver under the respondent-Corporation and he had been issued with articles of charges on 17.7.2006 alleging that he remained unauthorisedly absent to duty from 7.6.2006 to 17.7.2007. It is his further case that he has not been served with charge sheet and no explanation was offered. Hence, the respondent determined to hold domestic enquiry and issued Articles of charge to conduct disciplinary enquiry and thereafter, held an ex parte enquiry holding that the charges have been proved since the petitioner has not attended the enquiry.

Based on the report submitted by the enquiry Officer, the petitioner came to be dismissed from service on 31.7.2007 against which he filed an appeal before the Appellate Authority-1st respondent, who has confirmed the dismissal order on 27.12.2010. Aggrieved by the said orders of the Disciplinary Authority as well as the Appellate Authority, the petitioner raised an industrial dispute before the Labour Commissioner after having failed in the conciliation proceedings and the dispute was referred to the Labour Court under the provisions of section 10(l)(c)(d) of the Industrial Disputes Act. The Labour Court after giving an opportunity to the petitioner to lead evidence and produce documents and after hearing both the parties, by the impugned order dated 1.2.2014 dismissed the reference. Against the said order, the petitioner filed the present writ petition.

I have heard the learned Counsel for the parties to the lis.

Sri Nanja Reddy P.N., learned Counsel for the petitioner contended that the petitioner was unable to appear before the enquiry officer in the enquiry proceedings since he was unwell and was admitted to de-addiction centre for treatment as is evidenced from the medical certificates and other documents produced before the Labour Court. The Labour Court without considering the same has rejected the reference in to which is not sustainable. He further contended that the petitioner has been charged with only for the unauthorised absence due to his ailment in spite of production of medical certificates showing that he was unable to attend the office and based on the report submitted by the Enquiry Officer, the petitioner was dismissed from service without giving an opportunity and without holding proper enquiry. He further contended that the Management has not led any evidence on merits of the case; admittedly it has not proved the charges levelled against the petitioner and imposition of punishment of dismissal is disproportionate to the charges. Both the Disciplinary Authority and the Appellate Authority have not provided an opportunity of hearing and the same has been ignored by the Labour Court. In support of his arguments, he sought reliance on the judgment of the Apex Court in the case of Raghubir Singh v. Haryana Roadways reported in (2014) 10 SCC 301. Hence, he sought to set aside the impugned orders passed by the Labour Court.

Per contra, Sri Hareesh Bhandary, learned Counsel for the respondent sought to justify the impugned award and contended that the petitioner, who is an habitual absentee, remained absent to duty unauthorisedly earlier on 8 occasions and has been imposed with some punishment is not in dispute which has resulted hardship to the public at large and monetary loss to the Management; despite imposing lesser punishments, he did not improve his conduct and on the other hand, again he remained absent to duty unauthorisedly with effect from 7.6.2006 without obtaining prior sanction or approval of leave and despite call notices, he did not report to duty and hence, the Management initiated domestic enquiry; that the Enquiry Officer having given fair opportunity to the workman to contest the case, has conducted the enquiry in a fair and proper manner following the principle of natural justice and having found the evidence satisfactory, submitted a report holding that the workman is found guilty of the charges levelled against him and the Disciplinary Authority having issued second show-cause notice and having verified the domestic enquiry records and findings and past records, has proceeded to pass the impugned order which is sustainable in law. He further contended that in fad the petitioner, who got himself examined as W.W. 1, has admitted in his cross-examination that he has received notice of enquiry as per Ex. M. 8 and during the course of enquiry proceedings, the Management has also published the same in the Kannada Daily Newspaper ''Kannada Prabha'' and therefore, there is a delay of 5 years in raising the dispute. He further contended that for the first time before the Tribunal, the petitioner has produced the medical documents which have no relevance to the case of the petitioner and no documents were produced either before the Disciplinary Authority or the Appellate Authority and no leniency can be shown. Therefore, he sought for dismissal of the writ petition.

I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.

It is an undisputed fact that the petitioner was appointed as driver in the respondent-Corporation and it is also not in dispute that, he was unauthorisedly absent to duty earlier on 8 occasions and minor penalties were imposed for the same. Now again, the petitioner has remained unauthorisedly absent to duty for a period of 1 year and 1� months (13� months). The notice issued by the Disciplinary Authority was received by the petitioner as can be seen from Ex. M. 8 and the same has been admitted by him in his cross-examination as W.W. 1. It is also not in dispute that the enquiry officer has issued notice to the petitioner and the same was served, but no reply was filed. Therefore, the Management issued paper publication. In spite of the same, he has remained absent. Therefore, the Enquiry Officer proceeded with the enquiry based on the records and submitted a report. On the basis of the report submitted by the enquiry officer, the Disciplinary Authority considering the entire material on record and taking into consideration the unauthorised absenteeism, has proceeded to pass the order on 31.7.2007 dismissing the petitioner from service. It is an admitted fact that the petitioner filed an appeal before the Appellate Authority, who on considering the entire material on record, recorded a specific finding that in spite of providing an opportunity to the petitioner, he did not appear before the enquiry officer and on the basis of the enquiry report, Disciplinary Authority passed the order. The petitioner has not shown any reasons for his unauthorised absence to duty for over a period of 1 year and 1� months and no material document was produced to prove that he was not well and he has not filed any application for leave. He has also not produced any material document to show that he has sent the leave and medical records through his wife. Accordingly, the appeal came to be dismissed.

Before the Labour Court, the petitioner examined himself as W.W. 1 and got marked the documents-Exs. W. 1 to W. 6. On behalf of the Management, the evidence of Sri N.C. Lakshminarasimhaiah, Enquiry Officer is examined as M.W. 1 and got marked the documents Exs. M. 1 to M. 13.

It is also an undisputed fact that the workman filed evidence of affidavit before the Labour Court as per Annexure-D to the writ petition. The entire substance of the affidavit filed before the Labour Court that the charges alleged and proved are that he was not given an opportunity to defend his case before the Enquiry Officer and the Enquiry Officer conducted the ex parte enquiry; that he was not served with the notice to enable him to attend the enquiry; He also stated on oath that he was taking treatment because of ailment of various diseases and copies of the medical certificates are sent to the Management. Therefore, he was unable to discharge his duties and could not attend the office. In fact he has submitted the medical certificate to the Management through his family member. Without considering the same, the Management conducted the ex parte enquiry and has dismissed him from service which is a major penalty. Though in the affidavit, he has categorically stated on oath that he has sent the medical records through his family member, no material document is produced before the Court to prove that the same was submitted to the Management by his family member or his wife. He has also not examined his wife as witness to prove his statement before the Court.

It is an undisputed fact that though the petitioner claims that he was not well for more than 1 year and 1� months, no material document is produced before the Court to prove that he was not well during the said period. Prima facie the documents produced before the Labour Court disclose that he was suffering from LRT Infection and hence, he was advised to take rest for a period of 20 days i.e., from 15.12.2005 to 5.1.2006. Another document dated 1.6.2006 shows that he was suffering from enteric fever and viral hepatitis and was advised to take rest from 23.3.2006 to 1.6.2006. Another document dated 13.7.2006 shows that he was suffering from enteric fever from 13.7.2006 to 13.9.2006. The certificate dated 3rd May, 2011 issued by the Care Foundation clearly indicates that he was treated for Alcohol Dependency Syndrome (ADS) on 14.3.2008. He completed his in-house treatment and was discharged on 27.6.2008 i.e., for about 3 months. The petitioner has not produced any material document to prove that he was all along was in the hospital for about 1 year and 1� months and therefore, he was not able to prove his unauthorised absence. All the authorities including the Labour Court have concurrently held that the petitioner was wilfully absent for about 1 year and 1� months to the duty.

In the cross-examination, the petitioner (W.W. 1) has admitted that he was dismissed during 2007 on the ground of unauthorised absence and further admitted that he was suffering from ailment; that he has filed the case after the lapse of 5 years. Ex. W. 2 produced by the petitioner reveals that he was admitted to the hospital for the treatment of Alcohol Dependency Syndrome on 14.3.2008 and has completed his in-house treatment and was discharged on 27.6.2008. But the certificate does not pertain to unauthorised absence period. Further W.W. 1 in his cross-examination has stated that he did not know whether the enquiry was conducted in respect of his unauthorised absence. He further stated that he is possessing heavy vehicle driving licence and his wife and son are also working. He has denied the suggestion that he is working as driver in some other place and getting the income. He has admitted that from 7.6.2006 to 31.7.2007 due to illness, he remained absent to duty. The medical certificate dated 13.7.2006 issued by the Medical Officer reveals that he was advised to take rest from 13.7.2006 to 13.9.2006 as he was suffering from enteric fever. All these certificates are issued prior to the charge-sheet period. Ex. W. 2 is dated 3.5.2011 and Ex. W. 3 is the case record dated 6.11.2008 which disclose that the petitioner was suffering from head trauma. None of the medical certificates disclose that the petitioner was suffering from several diseases and due to the said reason, he has remained unauthorisedly absent to duty. He has not examined the doctor, who treated him either before the Enquiry Officer or before the Labour Court in support of his contention that he was seriously ill and unable to discharge his duty during the said period.

The petitioner has not established that due to compelling circumstances, he has remained absent for a period of 1 year and 1� months and none of the documents produced by the petitioner would come in his way to support his statement made. Considering the oral and documentary evidence of W.W. 1 and M.W. 1 and Exs. W. 1 to W. 6 and Exs. M. 1 to M. 13, the Labour Court recorded a finding that the enquiry held by the Management is fair and proper. It also recorded a finding that the finding of the Enquiry Officer holding that the petitioner was guilty of the charges levelled against him is in accordance with law and the petitioner has failed to prove that he has been victimised by the Management imposing punishment and the same is disproportionate to the alleged misconduct. Therefore, the Tribunal dismissed the petition as devoid of merits.

Though the learned Counsel for the petitioner relied upon the judgment of the Apex Court in the case of Raghubir Singh v. General Manager, Haryana Roadways, Hissar reported in (2014) 10 SCC 301 with regard to the punishment imposed is disproportionate to the gravity of charge, it is a case where the matter was defended under the provisions of section 11-A of the Industrial Disputes Act and the Tribunal was not satisfied with the order of discharge or dismissal and it has come to the conclusion that the Tribunal has to set aside the order and direct reinstatement of the workman on such terms as it thinks fit. It can also give any other relief to the workman including imposing of a lesser punishment having due regard to the circumstances. Admittedly, the said judgment relied upon by the learned Counsel for the petitioner has no application to the facts and circumstances of the present case.

Admittedly in the present case, it is not in dispute that the petitioner was earlier involved in 8 unauthorised absence cases for which he was imposed with some minor penalties. Now the petitioner is unauthorisedly absent for 1 year and 1� months and in spite of receipt of the enquiry notice as per Ex. M. 8, he did not participate in the enquiry proceedings and he has not shown his inclination to appear either before the Enquiry Officer nor was interested to join the duty, The medical documents produced before the Labour Court discloses that he was not well for a period of 3 months and his unauthorised absence for over a period of 1 year and 1� months, no material is forthcoming before the Court to prove that his unauthorised absence was not wilful. Therefore, this is not a case to show any leniency in the matter. The unauthorised absence is nothing but a grave misconduct and gross violation of discipline. The petitioner working as a driver, cannot frequently be absent unauthorisedly and frequent unauthorised absence will certainly have a serious repercussions on the functioning of a Corporation and hinder services to the public for which the said Corporations have been brought into existence. If the public undertakings are to exist to serve its objective, then it is not only the duty of the management, but also of the Courts to ensure strict discipline in such Corporations or else will certainly have detrimental effects on the public rights and conveniences. The larger interest must prevail over self-created individual hardships.

Though the learned Counsel for the petitioner tried to persuade this Court for reinstatement. This Court declined to accept the same in view of the proved misconduct on the part of the petitioner as recorded concurrently by the Disciplinary Authority. Appellate Authority as well as the Labour Court, based on the oral and documentary evidence on record, this Court is of the considered opinion that, the dismissal order passed by the Management against the petitioner is not disproportionate to the proved misconduct of unauthorised absence and the petitioner failed to prove that the dismissal order is shockingly disproportionate to the proved misconduct and unauthorised absence. Admittedly the petitioner, who is a driver, has violated the leave rules and regulations of the Corporation. So the petitioner has failed to prove that the order of dismissal passed by the Management is ''bad in law and if any uncalled sympathy is shown to such worker, there will be no discipline in the establishment and the petitioner has not made out any ground to interfere under writ jurisdiction.

In view of the aforesaid reasons, the impugned orders passed by the Disciplinary Authority confirming by the Appellate Authority and reaffirmed by the Labour Court is just and proper, based on the cogent legal evidence on record, no interference is called for under Articles 226 and 227 of Constitution of India. Accordingly, writ petition is dismissed.