The Divisional Controller BMTC Volvo Division vs Rajesab Talachoor

B. Veerappa, J.—The petitioner-Management has filed the above writ petition against the order dated 17.10.2012 made in Sl. Appln. No. 301/2012 in I.D No. 148/2005 on the file of the Industrial Tribunal, Bangalore, dismissing the application filed under Section 33 (2) (b) of the Industrial Dispute Act.

Brief facts of the case:

"The respondent was working under the petitioner-corporation remained absent for duty from 1.05.2010 without taking any prior permission from his superiors and without any leave application. The jurisdictional Traffic Superintendent reported the absence of the respondent through his report dated 08.5.2010. On the basis of the said report, the call letter was sent to the respondent to the available address of the respondent on 5.06.2010, calling upon the respondent to report for duty. The respondent failed to respond to the same. Thereafter the Depot Manager sent a detailed report on 3.08.2010 on the past history of absenteeism of the respondent to the Disciplinary Authority to take appropriate action against him. Based on the report, a case was registered against the respondent and articles of charges dated 8.09.2010 was sent through registered post to the residential address of the respondent along with relevant documents. Despite receipt of the article of charges, the respondent/workman neither reported for duty nor submitted any reply to the said article of charges. Therefore the Disciplinary Authority had no other option except to hold enquiry. The Disciplinary authority decided to hold an enquiry against the respondent to find out the truth in the charges levelled against him. Accordingly, on 11.4.2011 an enquiry officer was appointed. The Enquiry Officer after holding detailed enquiry issued enquiry notice to both the parties. On 22.06.2011, the respondent/workman was present and before the commencement of the enquiry, the respondent/workman was made known of the procedures to be adopted in the enquiry and the charges were read over and explained to him. In his preliminary statement, the respondent pleaded not guilty. He was given an opportunity to take assistance of a co-worker and he utilized the opportunity extended to him. Thereafter, the enquiry was adjourned for evidence of the management witness. Accordingly, on 8.07.2011 the enquiry officer recorded statement of management witness Sri. Hosapujar, Depot Manager and thereafter the management witness has produced documents and the same were marked Ex. M1 to Ex. M6 and enquiry was posted for cross examination of the management witness. On 25.11.2011, the co-worker of the respondent cross examined the management witness and thereafter the enquiry was adjourned for evidence of management side. Accordingly on 8.07.2011 the enquiry officer recorded the statement of the management witness of Sri. Hosapujar, Depot Manager and during the course of his evidence, the said witness produced certain documents and the same were marked as ExM1 to ExM6 and enquiry was posted for cross-examination. On 25.11.2011 the respondent cross-examined the management witness with the assistance of his co-worker. Further the enquiry officer, after conducting the enquiry strictly in accordance with law and submitted the report to the Disciplinary Authority on 12.12.2011 holding that the charges levelled against the respondent are proved."

The Disciplinary Authority after receipt of enquiry report sent a copy of the enquiry report with show cause notice on 21.12.2011 to the respondent by registered post and the same was returned un-served and a copy of show cause notice was affixed in the notice board of the depot. However, the respondent failed to submit any explanation.

After considering the entire material on record the disciplinary authority has dismissed the respondent from service on 8.3.2012.

In view of the pendency of I.D No. 148/2005 regarding wage revision and other demands raised on behalf of the employees of the petitioner corporation, after following the due procedure, the petitioner filed an application under provisions of Section 33(2)(b) of the I.D. Act before the Industrial Tribunal, Bangalore. The Industrial Tribunal after considering the entire material on record has dismissed the said application on 17.10.2012. Against the said order, the present writ petition is filed.

The respondent is served, un-represented.

I have heard the learned counsel for the petitioner.

Sri. B.L Sanjeev, learned counsel appearing for the petitioner contended that the Tribunal has not exercised its jurisdiction in a judicious manner and decision is not based on the available evidence on record and Tribunal failed to notice that in spite of sufficient opportunity given, the respondent/workman has not availed such opportunity and did not appear before the Tribunal to defend his case. The Tribunal ought to have granted permission as contemplated under the provisions of Section 33(2)(b) of the I.D. Act and the finding recorded by the Tribunal with regard to the medical certificate produced by the workman for the period 1.5.2010 to 20.6.2011 is without any basis. Therefore he sought to set aside the order passed by the Industrial Tribunal.

I have given my anxious consideration to the arguments advanced by the learned counsel appearing for the petitioner.

It is undisputed fact that the respondent/workman-driver remained absent from 1.05.2010. The respondent/workman has not replied to the Articles of charges issued by the petitioner-corporation and that he has participated in the enquiry proceedings. After detailed enquiry, the enquiry officer submitted the report stating that the charges levelled against the respondent were proved. In spite of 2nd show cause notice along with enquiry report sent to the respondent through registered post on 21.12.2011, it was returned unserved and respondent has not filed any explanation. Therefore, the disciplinary authority had no option except to dismiss the respondent from the service.

In view of the pendency of the I.D. No. 148/2005 the petitioner-corporation has filed an application under the provisions of Section 33(2)(b) of I.D. Act for approval of the order of the dismissal. The Tribunal has rejected the said application mainly on the ground that the respondent has denied the unauthorized absenteeism and stated that he was suffering from Psoriasis with effect from 1.5.2010 and he was submitting the leave applications for every 2-3 months from time to time to the depot and he has produced medical certificate issued by the District Hospital, Gadag, for the period 1.5.2010 to 20.6.2011. Therefore, the management failed to prove the unauthorized absenteeism alleged in the charge sheet.

The material documents clearly indicate that after enquiry, the respondent has not at all appeared before the Management or before Industrial Tribunal. The Industrial Tribunal in Sl. Application No. 301/2012 has depicted that list of witness examined for opposite party - Nil and list of documents marked for opposite party - Nil. If that is so, it is unknown as to how the respondent has produced medical certificates as recorded by the Industrial Tribunal in para-7 of its order.

Sri. B.L Sanjeev, learned counsel appearing for the petitioner, on instructions from the petitioner-corporation, submitted that the respondent has not produced any medical certificate regarding his illness for the period from 1.5.2010 to 20.06.2011. In the absence of any explanation or medical certificate, it is not possible to consider the same. The said submission is placed on record.

In the entire impugned order passed by the Industrial Tribunal does not discloses as to production of medical certificate by the respondent when the respondent himself was placed ex-parte as can be seen from the cause title of the order of the Tribunal and it is also stated in para-3 of the impugned order that "though notice of the application was sent by registered post and was served on him, the opposite party remained absent before the court on hearing date, i.e. 29.5.2012". Hence he was placed ex-parte and the case was posted for applicant''s evidence. In view of the same it is clear that the findings recorded by the Tribunal with regard to the production of medical certificate about illness of the respondent is without any basis. It requires reconsideration afresh.

In view of the above said reasons, the writ petition is allowed and the impugned order passed by the Industrial Tribunal dated 17th October 2012 in Sl. Appl. No. 301/2012 in LA No. 148/2005 is set aside and the matter is remitted back to the Industrial Tribunal to reconsider the entire material documents produced by the petitioner-corporation as per Ex. A1 to A25 and pass orders on merits with reference to the material documents on record, within a period of two months from the date of receipt of a copy of this order.

Ordered accordingly.