MANAGEMENT B.M.T.C. Vs. E. BALAKRISHNA

JUDGEMENT

(1.) The respondent was working as a conductor in the petitioner-Corporation, He remained absent without submitting leave application and obtaining prior sanction with effect from 25.12.1996. He did not report to duty, despite a call letter sent to his residence on 8.1.1997. The call letter was returned as 'unclaimed'. On 3.2.1997, Articles of Charge was sent to the residence of the petitioner and the same was returned as 'unclaimed'. Enquiry Officer was appointed on 21.7.1997 to conduct a domestic enquiry. A publication was made in a newspaper on 2.8.1997, notifying the respondent to attend the enquiry on 20th August 1997. The respondent did not attend the enquiry and hence, he was placed ex parte and upon recording the statement of the manager of the Depot-reporting authority, with regard to the unauthorized absence of the petitioner for duty with effect from 25.12.1996, the enquiry officer submitted report dated 28.9.1997, holding the respondent guilty of the charge. The respondent was issued a show cause notice along with the copy of the enquiry report, to submit his explanation. The disciplinary authority considering the record of the enquiry, finding the respondent guilty, dismissed the respondent from service on 23.9.1998 i.e., for the commission of misconduct of unauthorized absence with effect from 25.12.1996. The respondent raised an industrial dispute and filed a claim petition under section 10(4A) of I.D. Act 1947 in the Labour Court at Bangalore. Counter having been filed, based on the pleadings, four issues were raised for determination. A memo dated 21.1.2004 was filed on behalf of the workman, conceding fairness of the domestic enquiry held by the Management. Hence, issue No. 1 was answered in the affirmative, i.e., the D.E. conducted against the workman was fair and legal. Considering the evidence brought on record by the parties, it was found that the workman had not submitted any leave application. However, it was found that the workman was unwell and was on treatment and as such it was held that the Management could not expect him to report for duty and discharge the normal duty. Having arrived at said conclusion, taking notice of Exs. W8, W9 and W10, orders passed against other workman who remained unauthorizedly absent, the punishment imposed was held as disproportionate to the gravity of the misconduct. Consequently, the dispute/claim was allowed and the impugned order of dismissal was set aside and the Management was directed to reinstate the workman into service with continuity of service, but, without back-wages. Assailing the said Award, the Management has filed this writ petition.

(2.) Sri K.S. Bharath Kumar, learned advocate, contended that the fairness and legality of the disciplinary enquiry held having been conceded by the workman and the charge of unauthorized absence having been held as established, the Labour Court is not justified in interfering with the order of punishment and that the award passed, impugned herein, is arbitrary and illegal. Learned counsel further submitted that the respondent has not joined duty, despite the order passed by this Court on 6.9.2007, which shows that he has no interest in discharging the duty and that the workman has virtually remained absent for duty for nearly 16 years and hence interference is warranted. He submitted that the exercise of power under section 11A of the Act by the Labour Court is unjustified and it is a case of misplaced sympathy and private benevolence.

(3.) Sri S.B. Mukkannappa, learned advocate appearing for the respondent, on the other hand, submitted that the Labour Court in exercise of judicial discretion vested in it under section 11A of the Act has moulded the relief and hence the impugned Award may not warrant interference. Learned counsel did not dispute the statement made by Sri Bharath Kumar that the respondent has not joined duty after the interim order dated 6.9.2007 was passed in this writ petition.