Karnataka High Court

The Karnataka State Road vs Sri Savanth Mali on 6 March, 2024

Author: S.G.Pandit

Bench: S.G.Pandit

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                                                       NC: 2024:KHC:9383
                                                    WP No. 9922 of 2019




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 6TH DAY OF MARCH, 2024

                                       BEFORE
                          THE HON'BLE MR JUSTICE S.G.PANDIT
                       WRIT PETITION NO. 9922 OF 2019 (L-KSRTC)
                BETWEEN:

                THE KARNATAKA STATE ROAD
                TRANSPORT CORPORATION,
                BENGALURU CENTRAL DIVISION,
                BY ITS CHIEF LAW OFFICER,
                K.H. ROAD, SHANTHINAGAR,
                BENGALURU - 560 027.
                                                             ...PETITIONER
                (BY SRI. R.B. ANEPPANAVAR, ADVOCATE)

                AND:

                SRI. SAVANTH MALI S/O MURUGAPPA MALI,
                AGED ABOUT 45 YEARS,
                OCC: EX-DRIVER-CUM-CONDUCTOR,
                B NO.5345, TUMKUR DEPOT NO.1,
Digitally
signed by A K   KSRTCL, TUMKUR DIVISION,
CHANDRIKA       R/AT KAVACHA KOPPA VILLAGE & POST,
Location:
HIGH COURT      ATHANI TALUK, BELGAUM DISTRICT - 591 304.
OF                                                          ...RESPONDENT
KARNATAKA

                     THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
                THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
                IMPUGNED AWARD DATED 04.07.2018 PASSED BY THE
                PRINCIPAL       DISTRICT    JUDGE,     TUMKUR       IN
                I.D.NO.10(4)(A)10/2016 PRODUCED AS ANNEXURE-J AND ETC.

                       THIS PETITION, COMING ON FOR PRELIMINARY HEARING
                IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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                                                 NC: 2024:KHC:9383
                                            WP No. 9922 of 2019




                            ORDER

The petitioner, Karnataka State Road Transport

Corporation (for short 'the KSRTC') is before this Court

questioning the correctness and legality of Award dated

04.07.2018 in I.D.No.10/2016 on the file of the Principal

District and Sessions Judge, Tumakuru, by which, the dispute

raised by the respondent-workman is allowed, setting aside the

order of dismissal dated 10.07.2015 directing reinstatement of

the respondent into service without any continuity of service

and back-wages. The petitioner-KSRTC is before this Court

challenging portion of the order setting aside the order of

dismissal and directing reinstatement.

2. Heard Sri. R.B.Aneppanavar, learned counsel for

the petitioner-KSRTC. The respondent is served and

unrepresented. Perused the writ petition papers.

3. Learned counsel for the petitioner would submit

that the respondent was working as Driver-cum-Conductor

since 2008. It is further submitted that the respondent

remained unauthorizedly absent with effect from 24.07.2014 to

10.07.2015, nearly for a period of 351 days, without submitting

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leave application and without sanction of leave. Learned

counsel would further submit that the petitioner-Corporation

issued Charge Memo dated 29.11.2014 for unauthorized

absence. As the respondent-workman failed to submit any

reply, the petitioner-Corporation appointed Enquiry Officer. The

respondent remained absent before the Enquiry Officer and

Enquiry Officer proceeded with enquiry ex-parte. Based on the

Enquiry Report submitted by the Enquiry Officer and after

issuance of show-cause notice along with Enquiry Report, the

petitioner-Corporation passed order dated 10.07.2015

(Annexure-D), dismissing the respondent from services of the

petitioner-Corporation for proved unauthorized absence. The

respondent aggrieved by the order of dismissal, raised dispute

and sought reference under Section 10(4A) of the Industrial

Disputes Act, 1947 (for short '1947 Act') and accordingly, the

reference was made in I.D.No.10/2016.

4. Further, learned counsel for the petitioner submits

that the Labour Court by its order dated 21.11.2017 answered

preliminary issue and held that the enquiry conducted by the

petitioner-Corporation against the respondent is fair and

proper. Thereafter, under Award dated 04.07.2018, the Labour

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Court came to the conclusion that the charges are proved

against the respondent-workman, but while exercising

discretion, has come to the conclusion that the punishment of

dismissal is disproportionate to the nature and gravity of

charge of unauthorized absence and set aside the order of

dismissal and directed reinstatement of the respondent-

workman. Learned counsel for the petitioner would submit that

the Award of the Labour Court is unsustainable insofar as

setting aside the order of dismissal and directing reinstatement.

Learned counsel further submits that the respondent-workman

remained unauthorizedly absent without submitting any leave

application and without obtaining sanction from 24.07.2014 to

10.07.2015 for more than 351 days.

5. Learned counsel for the petitioner submits that the

Labour Court has rightly come to the conclusion that there is no

explanation for remaining absent from duty without obtaining

prior permission and medical documents produced by the

respondent are pertaining to his wife and they were prior to his

period of absence. Learned counsel would further submit that

when the Labour Court has come to the conclusion that there is

no explanation for absence and it is without permission, it could

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not have on the ground of discrimination set aside the order of

dismissal and directed reinstatement. Learned counsel further

submits that the question of discrimination in the matter of

imposition of punishment would not arise since punishment

would depend on gravity and nature of the respondent-

workman. In the matter of unauthorized absence, it would

depend on the period of absence and the explanation that

would be provided by delinquent employee. Learned counsel

places reliance on the decision of the Division Bench of this

Court in W.A.No.94/2015 dated 24.01.2020 and submits that

imposing lesser punishment against few employees and

extreme punishment to some employees would not amount to

discrimination.

6. Learned counsel submits that this Court by order

dated 12.03.2019 issued emergent notice to the respondent

and also directed the petitioner-Corporation to reinstate the

respondent, subject to the outcome of the writ petition.

In pursuance to the interim order passed by this Court, the

petitioner-Corporation called upon the respondent to report to

duty with certain documents. Though the said call letters were

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served on the respondent, the respondent remained absent and

even to this date, he has not reported to duty.

7. Learned counsel would contend that for proved

misconduct of unauthorized absence for nearly a year,

appropriate punishment would be dismissal. Learned counsel

places reliance on the decision of the Division Bench of this

Court in W.A.No.387/2022 dated 09.11.2022, wherein the

order of dismissal for unauthorized absence for nearly one year

is upheld. Thus, learned counsel would pray for allowing the

writ petition by setting aside the impugned Award.

8. Having heard the learned counsel for the petitioner-

Corporation and on careful perusal of the writ petition papers,

the only point which falls for consideration is as to "Whether

the impugned Award requires interference?" Answer to the said

point would be in the 'Affirmative' for the following reasons:

9. The Charge Memo dated 29.11.2014 was issued to

the respondent-workman alleging unauthorized absence i.e.,

without submitting leave application and without getting

sanction, the respondent remained absent from 24.7.2014 to

10.7.2015. The respondent-workman failed to submit any reply

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and also failed to appear before the Enquiry Officer. The

Enquiry Officer apart from issuing notice through registered

post, also issued paper publication in 'Vijayavani Kannada' daily

newspaper dated 20.03.2015. Based on the report of the

Enquiry Officer, the petitioner-Corporation passed order of

dismissal dated 10.7.2015. The respondent-workman raised

dispute in I.D.No.10/2016. The Labour Court under order

dated 21.11.2017 held that the enquiry held by the petitioner-

Management against the respondent-workman is fair and

proper. Under impugned Award, the Labour Court has

categorically come to the conclusion that the first party

workman i.e., respondent herein has remained absent to his

duty without prior permission and without prior sanction of

leave. It has also come to the conclusion that the medical

documents i.e., Exs.P1 and P2 pertains to his wife and they

were prior to his period of absence. Ex.P3 also pertains to his

wife and it is also prior to alleged period of absence. Based on

the material on record, the Labour Court has rightly given a

finding that the charge of misconduct on the part of first party

is established. The Labour Court under impugned award

committed a grave error in setting aside the order of dismissal

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and directing reinstatement only on the ground of

discrimination in imposition of punishment of dismissal.

Further, the Labour Court has also noted that punishment

should be proportionate to the misconduct and the dismissal of

the respondent for unauthorized absence is disproportionate.

Normally, in the matter of imposition of punishment, after

enquiry, the imposition of appropriate punishment would

depend on the proved misconduct and the nature and gravity of

the charge. Though the Corporation imposed lesser punishment

on certain other workman for alleged absenteeism, the same

cannot be applied in the present case, since the absence of

respondent-workman is for nearly one year. Moreover, the

explanation of the respondent-workman is not satisfactory and

the Labour Court has categorically found that the medical

documents produced by the respondent-workman relates to his

wife that too prior to his period of absence. The Division Bench

of this Court had an occasion to examine the contention of

discrimination in imposing punishment by the petitioner-

Corporation and while examining the said contention, the

Division Bench at Paragraph Nos.21 to 23 has held as follows:

"21. Thus, even if the Corporation has passed the similar orders for identical misconduct of production of

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false transfer certificate, it appears that they were 7 stray cases in comparison to 160 drivers, who had been terminated for misconduct of production of false transfer certificate. We are unable to accede to the contention of the learned Counsel for the respondent - workman that the action of the Corporation is in violation of Article 14 of the Constitution of India, on the ground that the Corporation has practiced discrimination against the respondent insofar as it pertains to imposition of penalty. The facts of each case are different as narrated above.

22. It is trite law that equality is a positive concept, there cannot be negative equality in law. Merely because in few cases, the Corporation has viewed the misconduct leniently, that would not give a right to delinquent to seek the similar orders by this Court. It would be apposite to refer to the judgment of the Hon'ble Supreme Court in the case of UNION OF INDIA VS. INTERNATIONAL TRADING CO. reported in (2003) 5 SCC 437, wherein at paragraph No.13, it is held as under:

"13. xxxxx A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the

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Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality. "

23. In terms of the afore-extracted judgment of the Hon'ble Supreme Court, it would be clear that the stray cases of imposition of minor penalty was an illegality by the petitioner-Corporation and that cannot be claimed by the respondent - workman invoking the principle of discrimination and parity in treatment insofar as imposition of the penalty. This plea of the respondent- workman that the Corporation has practiced invidious discrimination in imposition of penalty cannot be accepted.

Hence, we find that the action of the petitioner - Corporation was not discriminatory in imposing lesser punishment against a few workmen and extreme punishment of dismissal against the respondent - workman.

Accordingly, point No.1 is answered against the respondent-workman."

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The Division Bench of this Court has made it clear that in

imposing lesser punishment against a few workmen and

extreme punishment of dismissal, was not discriminatory.

10. The other contention which needs consideration is

whether the punishment of dismissal for remaining

unauthorized absent for 351 days is proper or proportionate to

the nature and gravity of charge. The respondent remained

unauthorized absent without submitting leave application and

without getting sanction. The Labour Court has given a