NORTH WEST KARNATAKA Vs. MOHAMMAD SHAFI

JUDGEMENT

(1.) Chal lenge in this writ petition is to an award passed by the Addl. Labour Court at Hubl i al lowing the claim petition f i led under Section 10(4)(A) of the Industrial Disputes Act, 1947 (for short 'the Act') as amended by the Karnataka Legislature and setting aside an order of dismissal dated 04.07.1998 passed by the Management with a modified punishment and the direction for reinstatement of respondent workman to service.

(2.) The material facts not in dispute are:- Respondent had been working as a conductor in the petitioner-Corporation. He remained unauthorisedly absent for duty with effect from 01.03.1996. An article of charges dated 17.06.1996 was issued to the workman for his unauthorised absence with effect from 01.03.1996 onwards. The respondent-workman submitted a reply to the article of charges on 08.02.1997. Not satisf ied, the discipl inary authority ordered for holding of a discipl inary enquiry and appointed an enquiry of ficer. Enquiry having been held, the finding/report was submitted, a copy of which was furnished to the workman alongwith a show-cause notice to submit his explanation on 26.05.1998. Another show-cause notice was issued on the same day along with default history sheet of the workman. Reply/explanation was submitted by the respondent on 23.06.1998 to the enquiry off icer's report and also to the show cause notice enclosing the default history sheet. The discipl inary authority considering the record of enquiry, agreeing with the finding recorded by the enquiry officer in the report and taking into consideration the past history of the workman, passed an order of dismissal dated 04.07.1998 and dismissed the workman from service with immediate effect.

(3.) The said dismissal order gave rise to an industrial dispute and the workman f iled an appl ication under sub-section (4)(A) of Section 10 of the Act. The Management f iled counter statement. Based on the pleadings, three issues were raised. The f irst issue, treated as prel iminary issue, was answered in the af firmative vide order dated 20.09.2000 and it was held that the discipl inary enquiry held by the management is fair and proper. The workman got himself examined as WW-1. For the management, MW-1 was examined through whom Exs.M-1 to 36 were marked. On consideration of oral and documentary evidence lead by the parties and having regard to the fact that that workman had remained absent for duty and there being no materials to show that either permission or leave was granted to him and that the absence undoubtedly amounts to unauthorised absence, it was held that the charge leveled against the workman as proved. However, examining the issue of proportional ity of the punishment imposed on the workman, by making reference to the judgment passed in W.A. No.3985-86/2002 dated 09.12.2002, order passed in W.P. No.4876/2004 dated 09.02.2004 and the decision A.M.ESHWARACHAR V/s. EXECUTIVE ENGINEER (ELCL), 1994 ILR(Kar) 3461it was held that the punishment of dismissal imposed is not at al l justif iable. As a result, the order of dismissal passed against the workman was held as l iable to be set aside and substituted punishment is l iable to be imposed. The workman was directed to be reinstated without back-wages by reducing his pay by f ive incremental stages in exercise of power under Section 11-A of the Act. The Management has questioned the said award by fi l ing this writ petition.