R KRISHNOJI RAO Vs. CHIEF TRAFFIC MANAGER

JUDGEMENT

(1.) Petitioner while a driver in the respondent-Public Road Transport Corporation remained absent from duties w.e.f. 25.1.2003 without prior permission or sanction of leave, leading to initiation of disciplinary proceeding by issuing articles of charge dt. 16.4.2003 and appointing an enquiry officer, who held a domestic enquiry into the charge, extended reasonable opportunity of hearing to the parties and submitted a report holding the charge proved. The disciplinary authority, on an independent assessment of the facts, circumstances and evidence on record, more appropriately in the absence of relevant material constituting substantial legal evidence of the fact that the workman remained absent due to medical treatment, which defence of the workman having not been established and keeping in mind that the absence was for a continuous period of approximately 20 months, held the misconduct tantamounted to grave indiscipline and accordingly by order dt, 22.11.2004 dismissed the petitioner from service, that order when called in question by raising an industrial dispute invoking S. 10(4-A) of the Industrial Disputes Act, 1947, for short 'Act', before the 1st Addl. Labour Court, Bangalore, for short 'Labour-Court, whence the petitioner filed a claim statement registered as I.D. No. 4/2005, New No. 47/2006, was resisted by filing statement of objections of the respondent. In the premise of pleadings of parties, the Labour Court framed issues, one of which related to the validity of the domestic enquiry, recorded the testimony of witnesses for the parties, marked documents in evidence, and by order dt. 19.2.2009, answered the issue in the negative holding that the domestic enquiry was not fair and proper. Parties, thereafter, when permitted, entered trial and adduced evidence afresh over the charge of unauthorized absence. The Labour Court, having regard to the material on record, the evidence, both oral and documentary, declined to accept the documents produced by the petitioner as credible evidence, in the absence of the discharge summary of the hospital in which the petitioner claimed to have been an inpatient, coupled with the contradiction in the testimony of the petitioner elicited in his cross-examination, held that the petitioner did not establish his defence and that the misconduct of unauthorized absence was proved. Keeping in mind the grave indiscipline on the part of the respondent and there being no mitigating circumstances, declined to invoke its extraordinary discretion under section 11A of the Act to interfere with the punishment of dismissal and accordingly by award dt. 29.1.2011 - Annex. A, rejected the Reference. Hence this petition. Learned Counsel for the petitioner contends that the three prescriptions and the two medical bills, Ex. M9 to M11 and M12 to M14 respectively, coupled with the applications for sanction of leave on medical grounds, was enough and more evidence to establish the defence of the workman of absence, while under medical treatment. According to the learned counsel, the Labour Court did not appreciate the material on record, resulting in recording perverse findings. In addition, learned Counsel submits that the history sheet - Ex. M21 produced by the respondent-Corporation did not disclose habitual or unauthorized absence and that it was for the first time in the 24 years of service as a driver, that he had remained absent for 20 months and therefore the punishment of dismissal is shockingly disproportionate to the gravity of the misconduct held proved.

(2.) Having heard the learned Counsel for the petitioner, perused the pleadings and examined the award impugned, there is no dispute that the petitioner remained absent from 25.1.2003 up to 22.11.2004, the date of dismissal from service. There is also no dispute that the petitioner did not produce the discharge summary to evidence the fact that petitioner was an inpatient in a hospital. So also, it is not in dispute that the medical records relating to the treatment allegedly extended to the petitioner for nearly 20 months, was not made available to the Labour Court, even when the enquiry was held on the merit of the charge. In the cross-examination of the petitioner, it is elicited that though Ex. M5, is the reply to the charge-sheet, nevertheless, there was no mention of the petitioner having suffered from urinary problem or to have been an inpatient. In view of the non-availability of relevant material constituting substantial legal evidence of the fact that the petitioner was an inpatient and suffering from kidney problem, the three prescriptions and the two medical bills Ex. M9, M10 and MT1 and Ex. M12 to 14 respectively, were not in the direction of establishing the defence of the petitioner, that he was medically unfit to report to duty during the entire period from 25.1.2003 up to the date of dismissal. Having considered the material on record; it is too farfetched for the petitioner to contend that the Labour Court did not appreciate the evidence, both oral and documentary.

(3.) If truly the petitioner did take treatment from a hospital/clinic/private nursing home and was an inpatient, it was open for the petitioner to furnish particulars of the dates on which he was an inpatient and the dates on which he was discharged from the hospital/clinic/private nursing home. In fact the petitioner, when extended reasonable opportunity before the Labour Court failed to place all relevant material in support of his evidence, and did not choose to examine the Doctor who treated him or in the least secure medical records maintained by the hospital/clinic/private nursing home over the alleged treatment and of being an inpatient. In my considered opinion, petitioner failed to establish a special knowledge that was known to him in the matter of alleged treatment in the hospital/clinic/private nursing home. The mere production of a photostat copies of prescription slips and the medical bills, by themselves and nothing more, do not constitute substantial legal evidence. In my opinion, no exception can be taken to the findings of the Labour Court, declining to accept the three medical prescriptions and two medical bills, as credible evidence.