The Divisional Controller vs Bhutale S/O Sharanappa Pujari
2022 Latest Caselaw 7780 Kant

                              1          W.P.No.205686/2019


            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 31ST DAY OF MAY, 2022

                           BEFORE

     THE HON'BLE MR. JUSTICE S. VISHWAJITH SHETTY

       WRIT PETITION NO.205686/2019 (L-KSRTC)


BETWEEN:

The Divisional Controller,
N.E.K.R.T.C., Kalaburagi Division-II,
Kalaburagi.
                                                  ... Petitioner

(By Sri Deepak V.Barad, Advocate)


AND:

Bhutale S/o Sharanappa Pujari,
Aged about 44 years,
Occ : (Ex. Driver-cum-Conductor),
R/o Ingalagi - B, Deval Ghanagapur Post,
Afzalpur Taluk, Dist : Kalaburagi - 585 103.
                                                ... Respondent

(By Sri Anaveer Swadi, Advocate for
    Sri Chaitanyakumar C.M. Advocate)

      This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to issue a writ in the nature
of certiorari whereby quashing the judgment and award
passed by the District Judge and Presiding Officer, Labour
Court, Kalaburagi dated 05.09.2019 in K.I.D.No.24/2019 at
Annexure-C to the writ petition.
                                  2           W.P.No.205686/2019


     This petition coming on for Preliminary Hearing in 'B'
Group this day, the Court made the following:

                         ORDER

Heard the learned counsel for the petitioner as well as

learned counsel for contesting respondents.

2. The instant writ petition has been filed with the

following prayer :-

"To issue a writ in the nature of certiorari whereby quashing the judgment and award passed by the District Judge and Presiding Officer, Labour Court, Kalaburagi dated 05.09.2019 in K.I.D.No.24/2019 at Annexure-C to the writ petition."

3. Brief facts which are relevant for the purpose of

disposal of the writ petition are that, on the ground of

unauthorized absence, the respondent who was working as a

Driver-cum-conductor with the petitioner, was dismissed

from service by order dated 29.05.2019 and the said order

had been questioned by the respondent before the Labour

Court in proceedings bearing K.I.D.No.24/2019 under Section

10(4)(A) of the Industrial Disputes Act.

4. The Labour Court vide order dated 05.09.2019

had partly allowed the reference in K.I.D.No.24/2019 and the

petitioner was directed to reinstate the respondent with

continuity of service and all consequential benefits by

providing him a suitable alternative post as mandated

Section 47 of the Persons with Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act,

within four weeks from the date of the publication of the

award. However, it was made clear that respondent was not

entitled for any back wages.

5. Being aggrieved by the said order passed by the

Labour Court in K.I.D.No.24/2019 the present writ petition is

filed.

6. Learned counsel for the petitioner submits that

the respondent has got a past history and therefore the

Labour Court was not justified in interfering with the order of

dismissal passed against him. He submits that the

respondent remained unauthorisedly absent from 28.04.2017

to 08.09.2017 continuously and he is not given any

satisfactory explanation for his unauthorized absence. He

submits that though the Labour Court has held that the

enquiry held against respondent was fair, it has erred in

interfering with the punishment imposed on the respondent.

He also submits that the Labour Court was not justified in

directing to give a suitable alternative post to the respondent

as the respondent has not furnished necessary medical

documents in this regard.

7. Per contra, learned counsel appearing for the

respondent has argued in support of the order passed by the

Labour Court and submits that Labour Court was fully

justified in interfering with the order of punishment passed

against him as the punishment was too harsh compared to

the charges against the respondent. He submits that the

respondent shall appear before the Medical Board and submit

necessary medical documents for the purpose of providing

him an alternative post as mandated under Section 47 of the

Persons with Disabilities (Equal Opportunities, Protection of

Rights and Full Participation) Act. Accordingly, he prays to

dismiss the petition.

8. I have carefully considered the rival arguments

addressed by both the parties and also perused the material

available on record.

9. Respondent was working as a Driver-cum-

Conductor with the petitioner and the material on record

would go to show that because of the ill-health and the

disability to the extent of 45% to 50% the respondent was

not able to discharge his duties as Driver-cum-Conductor.

The petitioner without appreciating this aspect of the matter

has issued the charge-sheet alleging unauthorized absence of

the respondent for a period from 28.04.2017 to 08.09.2017.

The evidence on record would got to show that the

respondent had undergone medical examination and has

forwarded the disability certificate which would go to show

that he had disability of 45% to 50%. Though the respondent

had requested for alternative post, the petitioner has not

considered the request and on the other hand, the petitioner

had instructed him to work as Driver-cum-Conductor which

he could not discharge due to his ill-health.

10. The Labour Court having appreciated this aspect

of the matter and considering the material on record which

would prima facie show that the respondent has a disability

of 45% to 50% has allowed the reference in part and has set

aside the order of dismissal and directed to reinstate without

back wages.

11. In my considered view having regard to the

material available on record, the Labour Court was fully

justified in allowing the reference in part and directing to

reinstate the respondent with the continuity of service and all

consequential benefits but without any back wages.

12. Under the peculiar facts and circumstances of

this case, I am of the considered opinion that the impugned

order passed by the Labour Court does not call for any

interference by this Court in exercise of its extraordinary

power vested under Section 226 of the Constitution of India.

13. However, it is made clear that for the purpose of

providing a suitable alternative post as directed by the

Labour Court under Section 47 of the Persons with

Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, the respondent shall make necessary

application along with all medical documents in support of his

case, from the competent Medical Board.

14. In the event of the respondent making such

application with all the necessary documents the said

application shall be considered by the petitioner as

expeditiously as possible but not later than a period of six

weeks from the date of receipt of application and necessary

orders shall be passed in accordance with law on the said

application.

The writ petition is accordingly disposed of.

Sd/-

JUDGE

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