Smt. Bm Veena vs The Divisional Controller
2021 Latest Caselaw 5576 Kant

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 IN THE HIGH COURT OF KARNATAKA, BENGALURU

   DATED THIS THE 6TH DAY OF DECEMBER, 2021

                      BEFORE

  THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR

       WRIT PETITION No.3398 OF 2018 (L-KSRTC)
BETWEEN:

SMT.B.M.VEENA
W/O D.A. RAVI KIRAN
AGED ABOUT 36 YEARS
RESIDING AT PERESANDRA VILLAGE
AND POST
CHIKKABALLAPURA TALUK
AND DISTRICT
                                       ...PETITIONER
(BY SRI LAKSHMAN RAO AND
    SRI SOMASUNDAR RAO, ADVOCATES)

AND:

THE DIVISIONAL CONTROLLER
BMTC VOLVO DIVISION
BANGALORE-560 027
                                      ...RESPONDENT
(BY SRI B.L.SANJEEV, ADVOCATE)

       THIS W.P. IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED AWARD PASSED IN I.D.NO.22/2012 DATED
28.01.2014, PASSED BY III ADDITIONAL LABOUR COURT,
BANGALORE, PRODUCED IN ANNEXURE-A AS IT SUFFERS
FROM PERVERSITY AND ETC.

       THIS W.P. COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:-
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                         ORDER

This petition filed by the petitioner-employee is

directed against the impugned order dated 28.01.2014

passed in I.D.No.22/2012 by the III Additional Labour

Court, Bengaluru (for short "the Labour Court"), whereby

the claim petition filed by the petitioner was dismissed by

the Labour Court.

2. Heard learned counsel for the petitioner,

learned counsel for the respondent and perused the

material on record.

3. The material on record indicates that the

respondent-BMTC dismissed the petitioner from service on

the ground of unauthorised absence during the period

05.05.2009 to 31.08.2010 by passing an order of dismissal

dated 31.01.2012. Aggrieved by the same, petitioner filed

a claim petition before the Labour Court challenging the

aforesaid order of dismissal. The said claim petition having

been contested by the respondent, the Labour Court

conducted a trial pursuant to which the Labour Court

proceeded to pass the impugned judgment and award

rejecting the claim petition on the ground that the petitioner

had not established her ill health during the period of

absence and consequently, there was no merit in her claim,

which was liable to be dismissed. Aggrieved by the

impugned order, petitioner is before this Court by way of

the present petition.

4. In addition to reiterating the various

contentions urged in the petition and referring to the

documents produced by the petitioner, learned counsel for

the petitioner submits that the Labour Court committed an

error in coming to the conclusion that the petitioner has not

established her ill health during the period of absence; it is

pointed out that the Labour Court has failed to consider and

appreciate the material on record, in particular, the two

medical records produced as Ex.M-22, which clearly

indicate that the petitioner was unwell during the period of

absence from 05.05.2009 to 31.08.2010 and this has

resulted in erroneous conclusion. It is also submitted that

the petitioner was the victim of victimisation and

discrimination in that other employees charged with the

same misconduct had been imposed only minor

punishments and not the major penalty of dismissal. It is

therefore submitted that the impugned order passed by the

Labour Court deserves to be set aside.

5. Per contra, learned counsel for the

respondent-BMTC submits that there is no merit in the

petition and the same is liable to be dismissed.

6. As rightly contended by the learned counsel for

the petitioner, the Labour Court has failed to consider and

appreciate the entire material on record, in particular, Ex.M-

22, Medical Certificates produced by the petitioner, which

clearly establishes that the petitioner was unwell during the

aforesaid period of absence from 05.05.2009 to

31.08.2010. In fact, the Labour Court has clearly erred in

disbelieving the said medical certificates issued by the

State Government Medical Officer during the normal course

of his official business without appreciating the presumption

applicable to the said certificates, particularly, when the

said certificates had not been impeached or controverted in

the cross-examination and produced by the BMTC itself.

So also, insofar as the period of absence of the petitioner

from 01.09.2010 to 31.01.2012 is concerned, the Labour

Court failed to appreciate the explanation offered by the

petitioner in her reply dated 03.09.2010 at Ex.M-23,

wherein she has clearly stated that she is ready and willing

to resume duty despite which the BMTC did not take her

back into duty. Under these circumstances, I am of the

considered opinion that the finding of the Labour Court that

the petitioner remained unauthorisedly absent from

01.09.2010 to 31.01.2012 without any reason is clearly

erroneous and contrary to the material on record and the

same deserves to be set aside.

7. So also, a perusal of the material on record

including the impugned order will indicate that despite

having imposed only minor punishment upon other

employees, who were identically placed under similar

charges of misconduct, the order of dismissal imposed

upon the petitioner by the BMTC is clearly disproportionate

to the nature of misconduct, which has not been considered

or appreciated by the Labour Court in its proper perspective

resulting in miscarriage of justice and consequently, even

this finding of the Labour Court deserves to be set aside.

8. In the result, I pass the following:

ORDER

(i) The petition is hereby allowed.

(ii) The impugned order dated 28.01.2014 passed in

I.D.No.22/2012 by the III Additional Labour Court,

Bengaluru is hereby set aside.

(iii) Respondent is directed to reinstate the petitioner into

service with all consequential benefits together with

continuity of service, except back wages.

(iv) The petitioner is directed not to remain

unauthorisedly absent henceforth and to perform and

carry out her duties sincerely and diligently.

(v) Respondent is directed to comply with this order

within two months from the date of receipt of a copy

of this order.

SD/-

JUDGE

Bmc