IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 15TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.1294 OF 2018 (L-TER) BETWEEN:
SRI. M PRABHU AGED ABOUT 46 YEARS, SON OF SRI. R.M. EWARAN FRANCIS RESIDING AT. NO.77, ANNAI MARY ILLAM 1ST MAIN ROAD, 1ST CROSS, S.K. GARDENS, BENGALURU-560046.
(BY SRI, V.S. NAIK, ADVOCATE) AND:
THE MANAGEMENT OF M/S. SKF BEARINGS INDIA LTD., PLOT NO.2, BOMMASANDRA INDUSTRIAL AREA HOSUR ROAD, BENGALURU-562158, REPRESENTED BY ITS SENIOR MANAGER (HRD) ...APPELLANT ...RESPONDENT THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE WRIT APPEAL AND SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE DATED 09/03/2018 IN WRIT PETITION NO. 15956/2013 [L-TER] AND FURTHER BE PLEASED TO ALLOW THE WRIT PETITION NO.15956/2013 [L-TER].
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 09.03.2018 passed by the learned Single Judge in W.P.No.15956 of 2013, by which the petition was dismissed, the writ petitioner is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India praying to quash the award dated 30.03.2012 passed by the I Additional Labour Court, Bengaluru in I.D.No.364 of 2006, to allow the claim statement and for a direction to the respondent- management to reinstate the petitioner in his original post with continuity of service and with backwages and with all the consequential benefits.
3. The petitioner claims that he joined the services of the respondent-management on 06.01.1992 as Setter- cum-operator. The petitioner suffered acute chest pain and he was admitted to Thomas cantonment poly Clinic and Nursing home Bengaluru for 5 days from 16.04.2001 to 20.04.2001. Hence, he applied for leave for a period 8 days in the month of May 2001, 7 days during July 2001 and 3 days in August 2001. The petitioner states that he applied total leave of 21 days due to chest pain and that along with the leave letter he has also produced medical certificates. But the respondent-management did not sanction the leave. The respondent-management issued charge-sheet dated 04.09.2001, alleging unauthorized absence for 21 days, which amounts to misconduct. The petitioner states that he replied on 10.09.2001 to the charge-sheet. Not being satisfied with the reply of the petitioner, the respondent-management conducted a domestic enquiry. The enquiry officer submitted his report, based on the findings of the enquiry officer an order of dismissal was passed vide Annexure-D dated 08.04.2002. Aggrieved by the order of dismissal, the petitioner raised dispute in I.D.No.364 of 2006 before the I Additional Labour Court, Bengaluru, under the provisions of the Industrial Disputes Act. The Labour Court, by its order dated 30.03.2012 rejected the claim of the petitioner confirming the order of the dismissal passed by the respondent-management. While rejecting the claim of the petitioner, the Labour Court, apart from holding that the charge of unauthorized absence for 21 days as proved and has also taken note of the past misconduct, wherein for the unauthorized absence, the petitioner was warned on four occasions, imposed with punishment of reduction of basic pay and was demoted. Being aggrieved by the award passed by the Labour Court, the petitioner filed instant writ petition contending that the Labour Court ought not to have considered past misconduct of absence. Further he contended that the punishment of dismissal is disproportionate to the alleged charge of unauthorized absence of 21 days. The learned Single Judge by order dated 09.03.2018 dismissed the writ petition holding that the petitioner has not made out any ground to interfere with the order passed by the Labour Court. Hence, the petitioner is in appeal.
4. Heard the learned counsel for the appellant. Perused the appeal papers.
5. Learned counsel for the appellant would submit that the learned Single Judge committed an error in dismissing the writ petition without properly appreciating the facts and circumstances of the case. The allegation against the petitioner in the charge sheet was that the petitioner remained unauthorizedly absent for a period of 21 days for which the petitioner had explained that he was suffering from chest pain due to which he was admitted to Hospital. It is contended that the punishment imposed is disproportionate to the alleged charge. The learned counsel relies upon the decision of the Hon'ble Supreme Court reported in LAWS (SC) 1998 2 26 in the case of COLOUR CHEM vs. A. L. ALASPURKAR in support of his contention.
6. Having heard the learned counsel for the appellant and having perused the appeal papers including the detailed award passed by the Labour Court, we are of the view that the order of the learned Single Judge would not suffer from any perversity or erroneousness so as to call for interference. The petitioner claims that he suffered chest pain and he was treated as inpatient from 16.04.2001 to 20.04.2001 at Thomas cantonment poly Clinic and Nursing home Bengaluru. He intermittently remained absent for 21 days between April 2001 to August 2001. The charge-sheet dated 04.09.2001 would indicate the period of absence between 03.05.2001 to 30.08.2001. The petitioner replied on 10.09.2001 stating that he suffered chest pain and he was hospitalized during April 2001. The absence from duty was due to reasons beyond his control. He further states that he had informed his official superiors about his absence. The respondent- management conducted domestic enquiry and the enquiry officer held the charge against the petitioner as proved. Based on the proved misconduct of unauthorized absence, the petitioner was imposed with the punishment of discharge from service by order dated 08.04.2002. The petitioner raised dispute before the Labour Court in I.D.NO.364 of 2006. The Labour Court by its detailed award dismissed the claim of the petitioner. The Labour Court based on the evidence of MW-1, documents Ex.M1 to M9 and evidence of WW.1 and Ex.W.1 to 3, by order dated 04.01.2010 held that the domestic enquiry conducted by the management is fair and proper. Thereafter, the evidence was led on other issues and the petitioner apart from examining one more witness marked Ex.M.13 to 18. The Labour Court on analyzing the evidence on record and on perusal of the documents, was of the view that the charge leveled against the petitioner was proved and punishment of discharge is not disproportionate to the alleged charge. MW.2-Production Executive has deposed stating that the petitioner-first party was a habitual absentee, which affected production and discipline. The petitioner-first party in his evidence has admitted that remaining absent without permission or sanction is misconduct. He claims that he had informed management over telephone on some occasions. The case of the petitioner was that he remained absent intermittently between 03.05.2001 to 30.8.2001 due to ill-health, that too chest pain. It is his case that he has sent leave letters and along with leave letters he has also sent medical certificates. The Labour Court has recorded that no scrap of paper to evidence the fact that he was suffering from chest pain and he was admitted to Hospital was produced nor acknowledgement for having produced medical certificates before the respondent-management was produced. The Labour Court further noted that even the petitioner failed to produce prescriptions and medical bills in support of his case. The records would show that the petitioner has exhausted all leave in his credit and remained absent for 21 days between 03.05.2001 to 30.08.2001.
7. It is to be noticed that apart from proved charge of unauthorized absence for 21 days, the petitioner was a habitual absentee. He was issued with caution letter dated 17.08.1995, warned letter dated 26.08.1996, severe warning letter dated 28.06.1997 and final warning letter dated 19.12.1997, letter dated 08.07.1998 for remaining absent for the duty. Further the petitioner was imposed with punishment of reduction of basic pay by order dated 28.05.1999 and was demoted by order dated 12.11.1999. All the above had been admitted by the petitioner in his evidence. Therefore, taking into consideration the proved misconduct of unauthorized absence and the past misconduct, the petitioner was rightly imposed with the punishment of discharge from service. As contended by the petitioner, the punishment imposed is not disproportionate to the alleged charge. It is not a stray incident. He does this habitually. If it was a stray incident, then the punishment is disproportionate. Since it is habitual, it is not disproportionate. The decision relied upon by the counsel for the petitioner supra has no application to the facts of the present case. In the case relied upon by the petitioner, the allegation was that two Operators and 10 mazdoors on duty in the night shift, at about 3.30 a.m., had gone to sleep keeping the machine in a working condition. The management had let of 10 mazdoors while inflicting punishment of dismissal for 2 Operators, who according to the management were assigned with more responsible duty. The Hon'ble Supreme Court taking note of the surrounding circumstances and especially in the light of their past service records, held that the punishment is disproportionate to the alleged charge. But in the case on hand, the facts are entirely different as the punishment is imposed on the proved misconduct of unauthorized absence which affected the production work of the respondent–management and looking to the past conduct, wherein, on more than six occasions, the petitioner was punished with minor punishments for remaining unauthorized absence. Hence, we are of the view that there is no merit in the appeal. Accordingly, the writ appeal is dismissed.
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JUDGE JUDGE SMJ CT:bms