Laxman S/O. Vishnappa Talawar vs The Management Of Nwkrtc
2023 Latest Caselaw 4535 Kant

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                                                       NC: 2023:KHC-D:7280
                                                        WP No. 104614 of 2021




                               IN THE HIGH COURT OF KARNATAKA,
                                       DHARWAD BENCH

                             DATED THIS THE 17TH DAY OF JULY, 2023

                                              BEFORE

                       THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY

                         WRIT PETITION NO. 104614 OF 2021 (L-RES)

                      BETWEEN:

                         LAXMAN S/O. VISHNAPPA TALAWAR,
                         AGE. 57 YEARS,
                         R/O. AT. & POST. SANGRESHKOPPA,
                         TQ. SAUNDATTI, DIST. BELAGAVI-591126.
                                                                  ... PETITIONER
                      (BY SRI. SANTOSH B MANE, ADVOCATE)

                      AND:

                         THE MANAGEMENT OF NWKRTC,
                         DHARWAD DIVISION,
                         R/BY THE DIVISIONAL CONTROLLER,
VISHAL                   DHARWAD DIVISION, DHARWAD-580008.
NINGAPPA                                                         ... RESPONDENT
PATTIHAL              (BY SRI. S C BHUTI, ADVOCATE)
Digitally signed by
VISHAL NINGAPPA            THIS WRIT PETITION IS FILED UNDER ARTICLES 226
PATTIHAL
Date: 2023.07.19      AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
11:36:32 +0530
                      ISSUE A WRIT IN THE NATURE OF CERTIORARI AND QUASH
                      THE IMPUGNED JUDGMENT DATED 18.06.2019 PASSED BY THE
                      LEARNED PRESIDING OFFICER, LABOUR COURT, HUBBALLI IN
                      KID NO.33/2017 VIDE ANNEXURE-M AND CONSEQUENTLY
                      ALLOW THE CLAIM PETITION OF THE PETITIONER AND GRANT
                      THE RELIEF AS PRAYED FOR.

                           THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
                      THE COURT MADE THE FOLLOWING:
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                                      NC: 2023:KHC-D:7280
                                        WP No. 104614 of 2021




                          ORDER

1. The petitioner, who was working as a Driver in

the respondent-Corporation is before this Court assailing

the award dated 18.06.2019, passed by the Labour Court,

Hubballi in proceedings bearing KID No.33/2017, vide

Annexure-M.

2. Heard the learned counsel appearing for the

parties.

3. The petitioner was appointed as a Driver by the

respondent-Corporation in the year 1999 and

subsequently his appointment was also regularized by the

respondent-Corporation. On the allegation that the

petitioner was unauthorizedly absent for the period from

29.05.2016 to 15.09.2016, a charge sheet dated

22.09.2016 was issued to the petitioner, for which he had

submitted a reply. Thereafter, an enquiry was held against

the petitioner and the Enquiry Officer subsequently filed a

report that the Corporation had proved the charges

against the petitioner. Based on the said report, the

NC: 2023:KHC-D:7280 WP No. 104614 of 2021

respondent-Corporation had passed an order, dated

25.04.2017 dismissing the petitioner from service.

Assailing the said order of punishment, the petitioner had

approached the Labour Court, Hubballi by raising a dispute

under Section 10(4-A) of the Industrial Act, 1987. The

Labour Court vide the impugned award, dated 18.06.2019

has dismissed the said claim petition and confirmed the

order of punishment passed by the respondent-

Corporation. Being aggrieved by the same, the petitioner

is before this Court.

4. Learned counsel appearing for the petitioner

submits that though the petitioner had offered valid

reasons for his absence, the respondent-Corporation has

failed to consider the same. He submits that even before

issuing the charge sheet, the petitioner had submitted a

representation seeking an alternative lighter job in view of

his disability and considering the fact that the petitioner

had suffered visual disability, the respondent had issued a

communication at Annexure-B1, dated 31.08.2016

NC: 2023:KHC-D:7280 WP No. 104614 of 2021

informing the petitioner that his request for alternative

lighter job is under consideration. Thereafter, the charge

sheet has been issued and on the basis of the enquiry

report, an order of punishment was erroneously passed

against the workman. He submits that since the petitioner

suffers from 45% visual disability, he was not in a position

to discharge his duty as a Driver and the respondent-

Corporation without appreciating this aspect of the matter

has erred in dismissing the petitioner from service.

5. Per contra, learned counsel appearing for the

respondent-Corporation has argued in support of the

impugned order of punishment and the award passed by

the Labour Court and submits that the petitioner has

belatedly raised a plea of physical disability. He submits

that in an identical situation, considering the past history

of the workman, this Court has upheld the order of

punishment passed by the Corporation against the

workman and has placed reliance on the order passed in

W.P. No.106077/2015.

NC: 2023:KHC-D:7280 WP No. 104614 of 2021

6. This matter had come up for hearing before this

Court on 15.06.2023. Since learned counsel for the

respondent-Corporation had disputed about the alleged

visual disability suffered by the petitioner, this Court had

directed the petitioner to appear before the District

Medical Board, Dharwad for medical check up and

pursuant to the said order, the petitioner - workman has

approached the District Medical Board, Dharwad and after

physical verification, the Medical Board has issued a

certificate to the effect that the petitioner is suffering

visual disability to the tune of 45%. The said certificate is

produced by the petitioner, before this Court along with

the memo dated 04.07.2023. The memo and the

certificate are taken on record.

7. The material on record would go to show that,

even prior to issuance of the charge sheet with an

allegation that the petitioner had unauthorisedly absented

himself for the period from 29.05.2016 to 15.09.2016, the

petitioner had submitted a representation to the

NC: 2023:KHC-D:7280 WP No. 104614 of 2021

respondent-Corporation on 01.08.2016 seeking for an

alternative lighter job on the ground of his visual disability.

After appreciating his request and also considering the

medical certificate produced by him, the respondent-

Corporation had issued an endorsement on 31.08.2016

stating that the petitioner's request for providing him an

alternative lighter job would be considered provided he

submits a medical certificate in Form No.3 from the

District Medical Board. It is the case of the petitioner that

such a medical certificate was produced by him

subsequently and a copy of the said certificate dated

30.11.2016 is produced by him before this Court. Learned

counsel for the respondent had however disputed the

genuineness of the said document on the ground that the

original of the said document was not made available to

the respondent-Corporation. It is under these

circumstances, this Court had directed the petitioner to

subject himself for medical examination and pursuant to

such an order passed by this Court, the petitioner has

subjected himself for medical examination and the District

NC: 2023:KHC-D:7280 WP No. 104614 of 2021

Medical Board has reiterated the very same percentage of

visual disability to the petitioner, even in the present

medical certificate, which is produced along with the

memo by the petitioner.

8. Since, the petitioner had suffered visual

disability and he had submitted a representation with the

prayer to provide him an alternative lighter job, the

respondent, who had assured to consider his request,

provided he furnishes a medical certificate in Form No.3

from the District Medical Board was not justified in issuing

a charge sheet to him subsequently on the ground of

unauthorized absence. The material on record would go to

show that the petitioner had approached the District

Medical Board and subjected himself for physical

examination and the certificate in Form No.3 was issued

by the District Medical Board on 30.11.2016, vide

Annexure-E. In spite of such materials available on record,

it appears that the respondent-Corporation has proceeded

with a domestic enquiry against the petitioner and based

NC: 2023:KHC-D:7280 WP No. 104614 of 2021

on the report filed by the Enquiry Officer, an order of

punishment dismissing the petitioner from service has

been passed. Unfortunately, the Labour Court has also

failed to appreciate this aspect of the matter and has

proceeded to confirm the order of punishment passed by

the respondent-Corporation against the petitioner on the

ground that the petitioner had not furnished satisfactory

reason for his unauthorized absence. The Labour Court has

virtually made an observation that the visual disability of

45% suffered by the petitioner cannot be believed. The

Labour Court has also further taken into consideration the

past history of the petitioner and has confirmed the order

of punishment passed by the respondent-Corporation.

9. Since the petitioner had offered a satisfactory

explanation for his absence for the period from

29.05.2016 to 15.09.2016, the respondent-Corporation

was not justified in passing an order of dismissal against

him. The material on record would go to show that much

prior to issuance of charge sheet against the petitioner, he

NC: 2023:KHC-D:7280 WP No. 104614 of 2021

had given representation to the respondent-Corporation

about his visual disability and had prayed for an

alternative lighter job. The respondent-Corporation instead

of providing him an alternative lighter job pending

consideration of his request, appears to have been

insisting upon him to work as a Driver. When the

petitioner was complaining of his visual disability, the

respondent-Corporation could not have asked him to

perform his duty as a Driver. Because of his disability, if

the petitioner has refused to perform his duty as a Driver,

and the same cannot be found fault with.

10. Under the circumstances, I am of the

considered view that the impugned order of punishment

passed against the petitioner by the respondent-

Corporation and the award passed by the Labour Court

confirming the said order of punishment are not

sustainable in law. The order passed by this Court in W.P.

No.106077/2015, disposed off on 8th June 2023 would not

be applicable to the facts and circumstances of the present

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NC: 2023:KHC-D:7280 WP No. 104614 of 2021

case for the simple reason that the workman in the said

case had not suffered any disability, as a result of which

he was not in a position to perform his duty. It is trite that

the orders or judgments can be relied as precedents only if

the same are applicable to the facts and circumstances of

the case. Under the circumstances, I am of the considered

view that the impugned order of punishment and the

impugned award passed by the Labour Court confirming

the said order of punishment cannot be sustained.

Accordingly, the following:

ORDER

The writ petition is allowed. The impugned award

passed by the Labour Court at Annexure-M, dated

18.06.2019 is quashed. Consequently the order of

punishment, dated 25.04.2017 issued by respondent is

also quashed. The respondent-Corporation is directed to

reinstate the petitioner with 50% back wages and with

continuity of service. The petitioner is also entitled for all

other consequential service benefits. In the event the

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NC: 2023:KHC-D:7280 WP No. 104614 of 2021

petitioner makes a representation with a request to

provide him an alternative lighter job, the respondent shall

consider the same taking into consideration the

observations made by this Court hereinabove.

Sd/-

JUDGE

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