Divisional Controller And ... vs Sri D R Narayana
2022 Latest Caselaw 5267 Kant

                                     W.P.NO.58619/2017


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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF MARCH 2022

                      BEFORE

       THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

       WRIT PETITION No.58619/2017 (L-KSRTC)

BETWEEN:

DIVISIONAL CONTROLLER AND
DISCIPLINARY AUTHORITY
MANAGEMENT OF BMTC
SOUTH DIVISION, DOMMALURU
BENGALURU
NOW REPRESENTED BY ITS
CHIEF LAW OFFICER, BMTC
CENTRAL OFFICE, K.H.ROAD
BENGALURU - 560 027                     ... PETITIONER

(BY SRI HAREESH BHANDARY T, ADVOCATE)

AND:

SRI D.R.NARAYANA
S/O RAMAIAH
AGED ABOUT 45 YEARS
R/AT DEVA SHETTYHALLI
VOGATA POST, HOSAKOTE TALUK
BENGALURU RURAL DISTRICT - 562 122
                                        ... RESPONDENT
(BY SRI SHANKARAPPA, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 20.10.2016 ON DOMESTIC
ENQUIRY PASSED BY THE FIRST ADDITIONAL LABOUR
COURT, BENGALURU IN I.D.NO.26/2015, VIDE ANNEXURE-F
AND ETC.

     THIS WRIT PETITION COMING ON FOR FURTHER
HEARING, THIS DAY THE COURT THROUGH VIDEO
CONFERENCE MADE THE FOLLOWING:
                                                 W.P.NO.58619/2017


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                            ORDER

Heard.

2. The respondent was working with the

petitioner Bengaluru Metropolitan Transport Corporation

(for short 'BMTC') as Driver-cum-Conductor. He

absented himself from duty from 05.12.2009. On

10.12.2009 Traffic Inspector reported the same to the

Depot Manager. On 27.03.2011 petitioner issued articles

of charge to the respondent. On 24.04.2011, Enquiry

Officer was appointed to conduct the enquiry. After

enquiry, the Enquiry Officer submitted his report on

29.04.2011 holding that the charge of unauthorized

absence is proved.

3. Petitioner issued show cause notice to the

respondent on 14.06.2012 regarding acceptance of the

enquiry report and the imposition of penalty. On

24.01.2014, respondent submitted his reply to the said

notice. On 22.03.2014 petitioner passed the final order

rejecting the said explanation, dismissing the

respondent from service.

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4. Respondent challenged that order before

Industrial Tribunal raising the dispute under Section

10(2-A) of the Industrial Disputes Act, 1947. The same

was registered in I.D.No.26/2015.

5. Before the tribunal, parties adduced their

evidence. Respondent admitted his absence from duty

without prior sanction of leave. However, he contended

that he could not attend to the duty due to his medical

conditions. In support of such medical grounds, he

produced Ex.W1, medical certificate and Ex.W2, medical

prescriptions and sought indulgence of the tribunal.

6. The tribunal by the impugned order

Annexure-G set aside the order of dismissal. Further,

tribunal directed the petitioner to reinstate the

respondent into service with all other consequential

benefits except back wages, on the following grounds:

(i) That the medical records produced and

medical grounds urged by the respondent are

acceptable;

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(ii) The petitioner showed indulgence to other

similarly situated employees who absented from duty,

imposed minor penalty against them under Exs.W3 to

W9. But respondent was not treated alike.

(iii) As per the counter statement of the second

party, first party was permitted to report to duty.

Enquiry held against the respondent was not fair and

proper.

Submissions of Sri.Hareesh Bhandary T., learned counsel for the petitioner:

          7.      Medical    grounds    urged         by   the

respondent were not proved.         Authors of Exs.W1 and

W2 were not examined, Ex.W1 was not supported by

any clinical examination reports. The respondent did

not report to duty even after this Court passing the

interim order granting stay subject to reinstatement.

Having regard to the long unauthorized absence,

tribunal was not justified in passing the impugned

order. Acceptance of the medial reports is contrary to W.P.NO.58619/2017

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the judgments of this Court and the Hon'ble Supreme

Court.

8. In support of his submissions, he relied on

the following judgments:

(i) Bangalore Metropolitan Transport Corporation Central Offices Vs D.Purostham in W.A.No.3497/2009 (L-K) DD. 16.08.2010

(ii) North West Karnataka Road Transport Corporation Vs S.J.Fernandes1

(iii) North Eastern Karnataka R.T. Corpn. Vs Ashappa & Anr2

Submissions of Sri.Shankarappa, learned counsel for the respondent:

9. Respondent could not attend to duty due to

his serious ailment. The said fact was proved by Exs.W1

and W2. Having regard to the contentions of the

respondent, Tribunal has rightly taken lenient view

regarding non-examination of the doctor. After this

Court passing the interim order, though the respondent

reported to duty, he was not allotted any work.

Therefore, he did not work in the petitioner's institution.

ILR 2001 KAR 1264

AIR 2006 SC 2164 W.P.NO.58619/2017

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The judgments relied on by the learned counsel for

petitioner are not applicable to the facts of the case.

Analysis:

10. Admittedly, respondent was appointed as

Driver-cum-Conductor in the petitioner's organization on

16.07.2008. He also admitted his absence from duty

from 05.12.2009 till issuance of the charges Annexure-A

on 25.03.2011 i.e. for more than one year and three

months. He had not applied for any leave for the said

period of absence. His only explanation during enquiry

as well as before Industrial Tribunal was that he was

prevented from attending to duty due to his medical

conditions. Therefore, burden was on him to

substantiate the said ground.

11. To prove the said contention, he relied on

Ex.W1 medical certificate and Ex.W2 medical

prescriptions. In the cross-examination of the

respondent before the Industrial Tribunal or before

Enquiry Officer, genuineness of the said document was

not disputed. In Domestic Enquiry, it was only W.P.NO.58619/2017

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suggested to workman that Ex.W1 does not relate to

the respondent.

12. In S.J.Fernandes's case relied on by the

petitioner's counsel referred to supra, it was held that

the Court was not obliged to see medical certificate as

of sacrosanct document provided such document on the

face of it does not inspire confidence. Nothing was

elicited in the cross-examination of the respondent to

impeach Ex.W1 or the genuineness of the same.

Therefore, said judgment cannot be justifiably applied to

the facts of the present case.

13. However, fact remains that even after this

Court passing interim order dated 25.04.2018

respondent has not reported to duty. An attempt was

made to submit before this Court that the petitioner did

not permit him to report to duty. In response to that,

learned counsel for the petitioner has submitted copy of

the office order dated 04.04.2019 requiring the

respondent to report to duty. Said document bears

respondent's signature. Respondent did not produce W.P.NO.58619/2017

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any material to substantiate his contention that he

reported to duty, but the petitioner did not permit him

to work.

14. The Hon'ble Supreme Court in Ashappa's

case referred to supra held that for running the busses,

service of conductor is imperative and no employer

running fleet of busses can allow employee to remain

absent for a long time. In this case also since the year

2009 till issuance of the charges on 27.03.2011

respondent did not report to duty. Even after interim

order of this Court, he did not report to duty.

15. However, records show that respondent had

poor assistance even before this Court. Under the

circumstances, the tribunal though was justified in

setting aside the dismissal order and ordering for

reinstatement, should not have allowed all service

benefits. In the considered opinion of this Court,

tribunal should have considered the period of absence of

the respondent as break in service and ordered for W.P.NO.58619/2017

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reinstatement without service benefits for the said

period.

16. History sheet of the respondent shows that

after joining the service on 16.07.2008 till charges were

issued on 27.03.2011 during interregnum period he

remained absent himself for five times. As per KSRTC

Servants (Conduct & Discipline) Regulations 1971, in

considering quantum of punishment, the conduct of the

employee is to be taken into consideration.

17. Therefore, impugned order of granting

service benefits is contrary to the aforesaid judgment of

the Hon'ble Supreme Court and the material on record.

Therefore, petition is partly allowed.

The impugned order is modified as follows:

1. Impugned order of dismissal dated 22.03.2014 passed by the petitioner against the respondent is hereby set aside. Petitioner is directed to reinstate the respondent subject to respondent reporting to the duty with valid Driving License and fitness certificate.

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2. Respondent is not entitled to back wages during the period of absence from 05.12.2009 till he reporting to duty by virtue of this order.

3. Further respondent is not entitled to any continuity of service and consequential service benefits during break in service period.

Sd/-

JUDGE

pgg