Karnataka High Court
The Divisional Controller vs Smt. Poornima Chakrasali on 10 January, 2024
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WP No. 52790 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
WRIT PETITION NO.52790 OF 2016 (L-KSRTC)
BETWEEN:
THE DIVISIONAL CONTROLLER,
B.M.T.C. WEST DIVISION,
TTMC BUS STAND, KENGERI-5,
BANGALORE - 560060
HEREIN REPRESENTED BY
THE CHIEF LAW OFFICER,
B.M.T.C., CENTRAL OFFICES,
K.H. ROAD, SHANTHI NAGAR,
BANGALORE - 560 027. ... PETITIONER
(BY SRI SANJEEV B.L., ADVOCATE)
AND:
SMT. POORNIMA CHAKRASALI
W/O. ERAPPA,
AGED ABOUT 41 YEARS,
Digitally signed by R/O. SHIVAGANGA "LA" TADAKODA,
MAHALAKSHMI B M GAMGAPURAPETE, KUMBARA ONI,
Location: HIGH GADAG - 528406. ... RESPONDENT
COURT OF
KARNATAKA
(BY SRI L. SHEKAR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS
OF THE PROCEEDINGS OF THE III ADDL. LABOUR COURT,
BANGALORE PERTAINING TO REF.NO.26/2015, WHICH HAS
CULMINATED IN ITS AWARD DATED 29.04.2016 VIDE ANNEXURE-C;
QUASH THE AWARD DATED 29.04.2016 PASSED BY THE III ADDL.
LABOUR COURT, BANGALORE IN REF.NO.26/2015, VIDE
ANNEXURE-C.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 52790 of 2016
ORDER
The Corporation in the present petition is assailing
the legality and correctness of the order dated 29.04.2016
in Ref. No.26/2015 on the file of the III Additional Labour
Court, Bengaluru ('the Labour Court' for short) at
Annexure-C, whereby, the Labour Court has set-aside the
order of dismissal and directed the Corporation to
reinstate the workman into service to his original post
without any back wages, with continuity of service by
withholding two annual increments with cumulative effect.
2. Petitioner herein is referred to as the
Corporation and the respondent as the workman for the
sake of convenience.
3. Workman was appointed as a conductor in the
Corporation and due to her unauthorized absence from
15.04.2011, articles of charges were issued, Enquiry
Officer was appointed, Enquiry Officer submitted a report.
The Disciplinary Authority by considering the enquiry
report and the materials placed before it, dismissed the
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workman from the service. Reference was made under
Section 10 read with Section 2A of the Amended Industrial
Disputes Act, 1947 (hereinafter referred to as 'the ID Act'
for short).
4. Corporation filed its objections inter alia
contending that the workman has remained absent
unauthorizedly from 15.04.2011 and the said fact was
reported to the Corporation by the Depot Manager and
despite to the call notice, she has not reported to the duty
and initiation of the disciplinary proceedings and the
dismissal against the workman was justified.
5. The Labour Court framed around four issues
and on the issue of domestic enquiry conducted by the
Corporation it was held to be fair and proper, by final
order, held that the order of dismissal needs to be set-
aside and directed the Corporation to reinstate the
workman on the ground that the order of dismissal is not
proportionate to the misconduct proved and that the
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workman was victimized. Aggrieved by which, the
corporation is before this Court.
6. Heard Sri. Sanjeev B.L, learned counsel for the
petitioner-Corporation and Sri. L. Shekar, learned counsel
for the respondent-workman.
7. Learned counsel for the petitioner would
contend that the Labour Court, having held that the
domestic enquiry is fair and proper, ought not to have
exercised its discretionary power under Section 11A of the
ID Act and placed its judgment by setting aside the order
of dismissal. Learned counsel would contend that the
award of the Labour Court in replacing the order of
dismissal with a lesser punishment is without considering
that the order of dismissal is not disproportionate to the
proved misconduct of the workman.
8. Per contra, learned counsel appearing for the
respondent-workman would justify the order of the Labour
Court and would contend that the Labour Court has rightly
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reinstated the workman into her original post by imposing
a minor punishment on the workman for the misconduct
alleged by the corporation.
9. This court has carefully considered the rival
contentions urged by the learned counsel for the parties
and perused the material on record.
10. Having heard the learned counsel for the
parties, the only point that arises for consideration in the
present petition is :
"Whether the order of the Labour Court in replacing
the order of dismissal with a minor punishment by
exercising the jurisdiction under Section 11A of the
ID Act warrants interference by this Court?"
11. The Labour Court while answering issue No.1
held that the domestic enquiry conducted by the
Corporation is fair and proper and there is no perversity in
the findings of the Enquiry Officer. The Labour Court also
held that the absenteeism of the workman from
15.04.2011 to 23.07.2014 has been proved by the
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Corporation, however, the order of the Labour Court is
that, the order of dismissal is disproportionate to the
proved misconduct, and compared the punishment order
which by nature are incomparable, since the punishment
to be imposed to be determined on the facts of each case.
The punishment order imposed was commensurate with
serious misconduct on part of the workman. The Labour
Court having held that the charges of misconduct against
the workman was proved was not justified in applying the
doctrine of parity holding that the dismissal order is not
proportionate to the proved misconduct. It is settled law
that equality under Article 14 of the Constitution is a
positive concept and cannot be enforced in a negative
manner. Benefits extended to some person in an illegal
and irregular manner cannot be claimed by others on the
plea of equity, wrong order passed in favour of one person
would not entitle others to claim a similar benefit. Thus,
the conclusion of the Labour Court that the punishment
imposed on the workman is not similar to the persons who
have committed the same misconduct is not justified. The
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workman acted in a manner unbecoming of a corporation
servant, by remaining unauthorized absent from duty, the
order of dismissal passed by the disciplinary authority
cannot be found fault with, the order of dismissal cannot
be replaced with the imposition of minor punishment in
the manner in which the Labour Court has done. For the
foregoing reasons, the point framed for consideration is
answered in favour of the Corporation and accordingly,
this Court pass the following:
ORDER
i. The writ petition is allowed.
ii. Impugned order dated 29.04.2016 in Ref.
No.26/2015 on the file of the III Additional
Labour Court, Bengaluru is hereby set-aside.
Sd/-
JUDGE
MBM
