The Bangalore Metropolitan Transport Corporation vs Krishnoji Rao

A.N. Venugopala Gowda, J.—The Respondent - a driver in the Petitioner -Corporation, remained absent from duty without prior intimation and permission with effect from 19.6.2000. Articles of Charge dated 26.7.2000 was issued for the misconduct of remaining absent without prior sanction. No reply was submitted. A domestic enquiry was ordered and the enquiry Officer submitted the report to the effect that, the charged misconduct is proved. Earlier also, the Respondent had remained absent on 15 occasions. A show-cause notice enclosing the copy of the enquiry report was sent to the Respondent on 2.6.03. No reply was submitted. The Disciplinary Authority taking into consideration the record of the disciplinary proceedings and the gravity of the misconduct, passed an order of dismissal from service on 9.7.03.

Respondent filed a claim u/s 10(4-A) of the Industrial Disputes Act, 1947, (for short, ''the Act''), in the Labour Court at Bangalore. The Petitioner filed counter statement, opposing the claim. Issues were raised. By an order dated 19.4.05, Labour Court held that, the domestic enquiry conducted by the Management is fair and proper. While examining the record with reference to the victimisation and proportionality of punishment, the Labour Court set aside the order of dismissal and imposed the punishment of denial of 10 increments with cumulative effect and directed reinstatement but without backwages, however, with continuity of service. Aggrieved, the Management has filed this writ petition.

Smt. H.R. Renuka, learned Counsel appearing for the Petitioner contended that, the domestic enquiry held against the workman having been held to be fair and proper, the misconduct also having been held as proved and there being a history sheet showing unauthorised absences on 15 occasions for which minor punishments were imposed and the workman being a habitual absentee did not show any improvement in his conduct which necessitated the imposition of punishment of dismissal. The said background was not taken into consideration by the Labour Court. The interference of the Labour Court with the just punishment imposed is highly irrational, unjustified and calls for interference. learned Counsel contended that, it is a case of showing undue sympathy to a habitual absentee. She further submitted that, pursuant to the interim order dated 16.6.06, the Respondent was instructed to report for duty and he reported to duty on 23.8.06, but again remained unauthorisedly absent from 16.12.06, for which act, Articles of Charge was issued, enquiry conducted and the misconduct having been found to be proved was again dismissed from service on 18.9.08, which order has been questioned by the workman by filing a claim u/s 10(4-A) of the Act before the Labour Court. learned Counsel submitted that, the said reinstatement being conditional, despite pendency of the writ petition, the workman has repeated his misconduct and hence, does not deserve any sympathy.

Sri Narasimha Swamy, learned Counsel appearing for the Respondent, on the other hand, contended that, the punishment of dismissal for unauthorised absence being too harsh and disproportionate, the Labour Court was justified in exercising its power u/s 11-A of the Act arid in moulding the relief. learned Counsel submitted that, the subsequent absence, if any, of the Respondent has no relevance for decision in this case and submitted that the Award of the Labour Court, needs no interference.

Having heard the learned Counsel on both sides and having perused the record, the point for consideration is:

Whether in the facts and circumstances of the case, the Labour Court was justified in exercising its power u/s 11-A of the Act and in interfering with the punishment imposed by the Management?

From the record, it is well established that, the Respondent remained absent from 19.6.2000 till he was dismissed from service by an order dated 9.7.03. Even after initiation of the domestic enquiry with the issue of Articles of Charge, he did not report for duty. The enquiry held by the Management has been found to be just and fair by the Labour Court, which has also held that, the finding of the enquiry Officer that the workman absented without any kind of leave or permission does not suffer from any perversity and is well founded. However, the Labour Court found that the punishment imposed for unauthorised absence is disproportionate and as a result, set aside the order of dismissal and directed the imposition of punishment of withholding of 10 increments with cumulative effect. Denial of backwages cannot be a punishment, since the workman did not attend to duty and the principle of "no work no pay" is applicable.

Considering the fact that there was history sheet and the workman had absented unauthorisedly on 15 different occasions excluding the one under consideration and the absence which was enquired into being for the period from 19.6.2000 till the date of dismissal, a long period and there being no material in justification of the unauthorised absence, the Labour Court has shown undue sympathy and benevolence in setting aside the order of dismissal. Law with regard to the imposition of punishment for unauthorised absence is too well settled by catena of decisions. (See North Eastern Karnataka R.T. Corpn. Vs. Ashappa, (2003) 1 SCC 224 L & T Komatsu Ltd. v. N. Udayakumar; and unreported judgment of this Court in the case of BMTC v. Purostham W.A. 3497/09 (L-K) disposed of on 15.8.10)

In the instant case, the conduct of the Respondent during the pendency of this writ petition also deserves to be noticed. Though he was reinstated into duty on 23.8.06, subject to the result of the writ petition, he has absented from duty again with effect from 6.12.06. The conduct of the workman shows that, he has not learnt any lesson from his previous defaults and the punishment imposed on him has not brought in any improvement.

The Labour Court by misdirecting itself, has reduced the punishment, which, in view of the record of the case is most uncalled for. The finding of the Labour Court to interfere with the quantum of punishment is opposed to the record and the ratio of law laid down by the Apex Court in the decisions noticed supra and hence, cannot be sustained. The contentions advanced on behalf of the Respondent are devoid of merit.

In the result, the writ petition is allowed and the impugned Award passed by the Labour Court is quashed. The punishment imposed on the workman by the Management shall stand restored.

No costs.