Karnataka State Road Transport ... vs Suresh B. C
2022 Latest Caselaw 2060 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 9TH DAY OF FEBRUARY, 2022

                       BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

   WRIT PETITION NO.63455 OF 2016 (L-KSRTC)

BETWEEN:

KARNATAKA STATE ROAD
TRANSPORT CORPORATION,
PUTTUR DIVISION, KOLAR,
BY ITS DIVISIONAL CONTROLLER,
REPRESENTED BY ITS
CHIEF LAW OFFICER.                    ... PETITIONER

(BY SMT.H.R.RENUKA, ADVOCATE)

AND:

SURESH B.C.
S/O CHANNEGOWDA,
AGED ABOUT 34 YEARS,
BASAVALLI, GANJIGERE POST,
ALLUR TALUK,
HASSAN DISTRICT - 573 128.          ... RESPONDENT

(BY SRI ANISH ACHARYA, ADVOCATE)

       THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING
CERTAIN RELIEFS.
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      THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:

                               ORDER

Smt.H.R.Renuka, learned counsel for petitioner has

appeared in-person.

Sri.Anish Acharya, learned counsel for respondent

has appeared through video conferencing.

2. The facts are stated as under:-

It is stated that the respondent was selected for the

post Driver-cum-Conductor in the establishment of the

Corporation and he was placed on training w.e.f

19.03.2010. A report was submitted by the Depot

Manager, Dharmasthala Depot, reporting that the

respondent has remained absent from duty unauthorizedly

from 02.06.2011 without submitting leave application and

without obtaining prior permission. Hence, he was issued

with a call letter calling upon him to report to duty. The

respondent did not respond to the call letter.

It is stated that the respondent sought permission to

report to duty vide letter dated 23.08.2011. As the

respondent did not report to duty despite issue of

permission, he was issued with a show cause notice on

09.12.2011 calling upon him to show cause as to why his

name should not be removed from the list of Trainee

Driver-cum-Conductor for remaining absent from

02.06.2011. The respondent did not respond to the show

cause notice.

The respondent was subjected to Departmental

Enquiry as he did not attend the enquiry. The notice of

enquiry was published in Vijaya Karnataka Daily

Newspaper. Thereafter, the respondent appeared for the

enquiry. He was permitted to attend the duty on

08.02.2012 but he did not report to duty despite the

permission issued for the second time and he did not

attend the enquiry also. The Enquiry Officer submitted

findings holding that the charges are proved. The

Disciplinary Authority examined the records, findings of the

Enquiry Officer with reference to the charges alleged found

that the respondent remained absent to duty from

02.06.2011 till 12.06.2012 for a period of one year. It is

said that though the respondent was permitted to report to

duty on two occasions, but he did not report to duty. He

worked for 1 year and 3 months. Hence, the name of the

respondent was removed from the select list vide order

dated 12.06.2012.

Aggrieved by the order of removal, the respondent

filed a claim petition under Section 19 (4-A) of the

Industrial Disputes Act, 1947 before the Labour Court

Mangalore in IDA NO.10/2012. It is stated that the

respondent conceded the fairness of Departmental enquiry

hence the same was held as fair and proper. The

Corporation produced documents and marked as Ex.M1 to

M25. The respondent did not produce any evidence either

oral or documentary. On adjudication of the dispute, the

Labour Court vide order dated 30.04.2016 passed award

and directed reinstatement of the respondent to his

original post with continuity of service holding that the

absence of the Workman from duty was for justifiable

cause.

Under these circumstances, the petitioner having left

with no other of alternative and efficacious remedy has

filed this writ petition under Articles 226 and 227 of the

Constitution of India.

3. Smt.H.R.Renuka, learned counsel for petitioner

submits that the award of Labour Court is erroneous,

replete with several mis-directions and errors and the

same is apparent on the face of the record.

Next, she submitted that the respondent was a

Trainee employee and he was directed to attend the

training programme. He failed to complete the

requirement thereby lost an opportunity to claim

permanent employment to the post of Driver in terms of

Sub- Regulation (2) of Regulation 12 of KSRTC (Cadre and

Recruitment) Regulations 1982.

A further submission was made that respondent

does not fall under the definition of the term 'Government

Servant' in the absence of order of appointment to the

post claimed. It is submitted that under the KSRTC

Servants (Conduct and Discipline) Regulation, the

respondent is not a permanent workman of the

Corporation.

Learned counsel vehemently contended that the

respondent remained absent to duty from 02.06.2011

without permission or intimation. He was required to get

the leave sanctioned before remaining away from work. He

chose to remain absent, continued to remain absent after

issue of call letter, show cause notice, enquiry notices and

letter of permission to report to duty issued on two

occasions.

It is further contended that the pendency of enquiry

did not deter him from remaining absent from duty. The

Workman being a trainee employee was required to be

responsible in discharging his duty.

Lastly, she submitted that the absence of one year

from duty without permission and intimation is a gross

misconduct, warranting an order of removal from service.

Hence, the award of Labour Court is unjust. Therefore, she

submitted that appropriate writ may be issued to quash

the award of the Labour Court and to confirm the order of

removal.

4. Sri.Anish Acharya, learned counsel justified the

award of the Labour Court.

Next, he submitted that the respondent has

justifiable reason to be away from duty. It is submitted

that the respondent remained absent from 02.06.2011 and

a call letter was issued on 27.07.2011 calling upon him to

report to duty. The respondent wrote letter on 23.08.2011

and sought permission of the Corporation to report to

duty.

A further submission was made that the day on

which the respondent took permission to report to duty,

the respondent lost his child. Hence, he was constrained to

visit his native.

Learned counsel vehemently contended that the

respondent replied for the show cause notice on

09.12.2011 stating that he has lost his child and his wife

also attempted to commit suicide. Hence, he has sufficient

reasons for his absence.

Lastly, he submitted that the Labour Court in

extenso referred to the material on record and concluded

that the respondent had genuine reason for his

unauthorized absent. Hence, he submitted that the petition

is devoid of merits and the same may be dismissed.

5. Heard learned counsel for petitioner and

respondent and perused the writ papers with care.

6. The short point which requires consideration is

whether the Labour Court justified in interfering with the

order of removal?

The narration of facts does not require reiteration.

On certain acts of misconduct, i.e., for unauthorized

absent from duty, the respondent was subjected to

disciplinary enquiry. It is significant to note that the

charges levelled against the respondent was that he

remained absent from duty from 02.06.2011 without

permission and intimation.

A call letter was issued on 27.07.2011 seeking

explanation however, on 23.08.2011, the Corporation

accorded permission to report to duty. The respondent did

not report. Hence, the Corporation issued a show cause

notice on 09.12.2011. It is significant to note that the

respondent replies to the Divisional Commissioner on

17.12.2011. The reply letter is marked as Ex.M-8. The

portion of the contents of the same is extracted by the

Labour Court in the judgment. I have perused the same

with care. The respondent has stated that he lost his son

on 23.08.2011, the day on which he sought permission to

report to duty. Thereafter, his wife attempted to commit

suicide.

The Labour Court has relied upon the said exhibit

and has concluded that the order of removal is arbitrary.

This Court is not inclined to accept the said finding.

The Labour Court has lost sight of the factual aspects in

the matter. It is not in dispute that the respondent

remained absent from duty from 02.06.2011.According to

the respondent, he lost his child on 23.08.2011. But he

informed the same to the Authority concerned only in the

month of December 2011. In my considered opinion, the

Labour Court has unnecessarily placed misplaced

sympathy on the respondent and concluded that the

reason offered for his absence is satisfactory. Assuming

for a moment, the explanation sought by the respondent is

found satisfactory but the respondent has failed to explain

the reasons for his absence from 02.06.2011 to till the

date of the alleged incident i.e., the death of the child on

23.08.2011.

It is significant to note that the Workman remained

unauthorizedly absent without leave hence, Articles of

Charges was issued calling upon him to submit

explanation. The Corporation appointed Enquiry Officer.

The Enquiry Officer conducted the Domestic Enquiry and

found that the charges as proved and submitted his

Report. The Disciplinary Authority passed punishment

order, thereby the name of the respondent was removed

from service.

It is perhaps well to observe that the order of

punishment depends upon the gravity of misconduct. It is

needless to say that the employer shall consider the

gravity of the misconduct, the previous record of the

employee, if any, and any other extenuating or

aggravating circumstances that may exist. In imposing the

punishment, such requirements have necessarily to be

complied with.

In the present case, the charges leveled against the

Workman are proved and hence, the name of the

respondent was removed from service. The notice was

issued and the Domestic Enquiry is conducted adhering to

the principles of natural justice. Despite giving several

opportunities, the respondent did not report to duty. In my

opinion, the punishment order of removal of the name of

respondent is just and proper. The Labour Court has

exceeded in its jurisdiction while interfering with the order

of removal passed by the Disciplinary Authority.

It is needless to observe that the disciplinary

measures initiated against an errant employee cannot be

termed as harsh or victimization of unfair labour practice.

7. In the result, the writ petition is allowed. The

order of dismissal dated 12.06.2012 passed by the

Divisional Controller at Annexure-'F' is confirmed and the

Award dated 30.04.2016 passed by the Labour Court,

Mangaluru in I.D.A.No.10/2012 at Annexure-'G' is set

aside.

Sd/-

JUDGE

VMB