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2005 DIGILAW 478 (KAR)

J. M. KARIYANNA v. BHARAT EARTH MOVERS LTD

2005-07-22

H.N.NAGAMOHAN DAS

body2005
( 1 ) IN this petition, the petitioner-workman has called in question the award dated June 5, 2002 in I. D. No. 63/1992 passed by the Labour court at Bangalore. ( 2 ) THE petitioners are the legal representatives of the deceased workman- J. M. Kariyannna. The deceased workman was appointed in the establishment of respondent on july 4, 1960. On February 29, 1980, the respondent served a charge sheet on the workman stating that he remained unauthorisedly absent from January 1979 to february 1980. The workman submitted his reply denying the charge against him and contended that on account of his daughter's marriage, his mother's illness and in addition to that, he also suffered illness and therefore, he was forced to remain absent from duty. Subsequently, a domestic enquiry was held and the disciplinary authority by accepting the findings of the domestic enquiry passed an order on July 13, 1981 dismissing the workman from service. Aggrieved by this order of dismissal, the workman raised a dispute in I. D. No. 63/1992 on the file of the Labour Court at bangalore under Section 10 (4-A) of the industrial Disputes Act. Before the Labour court, the workman filed his claim statement as per Annexure 'a' to the writ petition. The respondent filed its counter as per Annexure 'b' dated February 23, 1994. On the basis of the pleadings on record, the Labour Court framed the following three issues for its consideration. i) whether the domestic enquiry is fair and proper? ii) Whether 2nd party is justified in dismissing the 1st parry? iii) What order? ( 3 ) BOTH the parties adduced oral evidence and also produced documentary evidence on the preliminary issue No. 1. The Labour Court vide order dated January 21, 1995 held the domestic enquiry as not fair and proper. Subsequently, on February 22, 2000, the workman died. After the demise of workman, his legal representatives were brought on record. On the side of deceased workman, no oral evidence is adduced and no documents are produced. Thereafter, the respondent examined two witnesses as MW2 and MW3 and got marked documents exhibits Ml to m21. Subsequently, on February 22, 2000, the workman died. After the demise of workman, his legal representatives were brought on record. On the side of deceased workman, no oral evidence is adduced and no documents are produced. Thereafter, the respondent examined two witnesses as MW2 and MW3 and got marked documents exhibits Ml to m21. The Labour Court on appreciation of the pleadings, the oral and documentary evidence on record passed the impugned award rejecting the claim of workman and reduced the order of dismissal into one as termination and further directed that the legal representatives of deceased workman are entitled to receive all the terminal benefits after deducting the amount paid to the deceased workman towards interim relief. Hence this writ petition by the legal representatives of the deceased workman. ( 4 ) SRI Narayanaswamy, learned counsel for the petitioners contends that the Labour court failed to consider the entire material on record and the reasonings to reject the claim of workman are unsound and unjust. The Labour court committed irregularity in accepting exhibits M6 and M7 the certificates issued by the Superintendent of Victoria Hospital. He contends that a heavy burden is on the respondent to prove the contents of exhibits M6 and M7 and it failed to prove the correctness and genuineness of the certificates by not examining the Superintendent of Victoria hospital who issued the certificates. It is further contended that the deceased workman, though applied for leave on the ground that he is suffering from illness, the respondent arbitrarily refused to grant the leave. It is further contended that the preliminary issue before the Labour Court was held on January 21, 1995 as not fair and proper. Long thereafter, on February 22, 2000, the workman died. During the lifetime of workman, the respondent has not examined the witnesses and has not produced the documents. Thus, the workman was deprived of an opportunity to cross-examine the witnesses and to confront the documents produced by the respondent. He contends that before the enquiry officer, when the workman was alive, the respondent has not produced the past history of the workman. But shockingly, the respondent produced the past history of the workman before the Labour court after the demise of workman and thus there was no opportunity for the workman to question the genuineness of the past history. He contends that before the enquiry officer, when the workman was alive, the respondent has not produced the past history of the workman. But shockingly, the respondent produced the past history of the workman before the Labour court after the demise of workman and thus there was no opportunity for the workman to question the genuineness of the past history. He contends that the entire approach of the Labour court is contrary to the pleadings and evidence on record. ( 5 ) PER-CONTRA, Sri Kasturi, learned senior counsel for the respondent contends that in the claim statement filed by the workman before the Labour Court, it is not stated from which period to which period the workman was suffering from illness, the workman attended his ailing mother and the workman attended the arrangements of his daughter's marriage. He further contends that the workman though applied for leave, the same is not accompanied by the medical leave certificate issued by the e. S. I. hospital and therefore the respondent has refused to grant the leave as prayed for by the workman. The workman produced six medical certificates to show that he was suffering from illness during the period he remained absent. The respondent-management sent three certificates for verification to Victoria hospital. The superintendent of Victoria hospital issued certificates as per exhibits M6 and M7 stating that the three medical certificates are not genuine. When there are disputed documents, a heavy burden was on the workman to prove the genuineness of the three medical certificates that are relied on by him. The legal representatives of the deceased workman have not adduced any evidence either oral or documentary. In the absence of any evidence on the side of deceased workman, the labour Court is justified in holding issue Nos. (ii) and (iii) in favour of respondent. He supports the impugned award. ( 6 ) HEARD the arguments on both the sides and perused the entire writ papers. ( 7 ) IT is not in dispute that between January 1979 and February 1980, the workman remained absent for 237 days out of 301 days. Clause 21. 20 of the Certified Standing Orders of the Company specifies "habitual absence without leave or without permission or absence without leave for more than ten consecutive days amounts to misconduct". ( 7 ) IT is not in dispute that between January 1979 and February 1980, the workman remained absent for 237 days out of 301 days. Clause 21. 20 of the Certified Standing Orders of the Company specifies "habitual absence without leave or without permission or absence without leave for more than ten consecutive days amounts to misconduct". In the instant case, it is not in dispute that the deceased workman remained absent without obtaining the leave or permission from the respondent. The reasoning of the workman that on account of his daughter's marriage, mother's illness and his personal illness, he remained absent from duty, is not supported by acceptable pleadings or evidence. A perusal of the claim statement filed by the workman before the Labour Court is very vague. It is not stated in the pleadings that from which period to which period, the workman had attended the arrangements of his daughter's marriage, when his mother fell ill and how long. The details regarding the workman's illness is also not stated. In the absence of a specific pleading with these details, it is not possible to accept the version of the workman that on account of unavoidable circumstances, he remained absent from duty. The workman produced six medical certificates for each periods in support of his contention. These six medical certificates are issued by a doctor in Victoria hospital. It is not stated either in the pleadings or in the evidence as to why the deceased workman has not secured the medical certificate from the E. S. I. Hospital. In addition to that, the respondent-management sent the three medical certificates out of six produced by the workman for verification to victoria Hospital. The Superintendent of victoria Hospital as per his certificate marked as exhibits M6 and M7 has stated that the alleged three certificates produced by the workman are not genuine. When the disputed medical certificates are there, the burden shifts on the workman to prove the genuineness of the three medical certificates which he relied on. The workman has not produced any acceptable evidence in support of his contention. Therefore, the three medical certificates relied on by the workman will not support the contention that he was not well. ( 8 ) IT is contended by the workman that he applied for leave and the same was arbitrarily refused by the respondent. The workman has not produced any acceptable evidence in support of his contention. Therefore, the three medical certificates relied on by the workman will not support the contention that he was not well. ( 8 ) IT is contended by the workman that he applied for leave and the same was arbitrarily refused by the respondent. It is the contention of respondent that these leave applications are not supported by the medical leave certificate issued by the E. S. I. Hospital and therefore the respondent was justified in refusing to grant the leave sought by the workman. It is seen from the record that the deceased workman was entitled to all medical facilities and benefits including the medical leave certificate from the e. S. I. Hospital. But, obviously, the deceased workman instead of approaching the E. S. I. Hospital, has approached Victoria Hospital and even the three certificates issued by Victoria hospital are found to be not genuine. These circumstances support the stand taken by the respondent- management. Therefore, there is no substance and merit in the contention of the deceased workman that he applied for leave and the same was arbitrarily rejected by the respondent-management. ( 9 ) THE petitioners who are the legal representatives of deceased workman contend that during the lifetime of the workman, the respondent-management deliberately and intentionally has not adduced any evidence and has not produced any documents and thereby denied an opportunity to the deceased workman to cross- examine the witnesses and confront the documents. This argument is unacceptable. If this argument of the petitioners is accepted, it will result in a serious reversal to the Rule of evidence. Either the petitioner or the respondent cannot adduce evidence expecting the death of a party. There is no impediment for the petitioners to cross-examine witnesses examined by the respondent-management and also to confront the documents that are relied on by the respondent. Therefore, this contention of the petitioners that during the lifetime of the workman, the respondent ought to have examined the witnesses, is rejected. ( 10 ) IT is contended that the Labour Court committed illegality in considering the history sheet produced by the respondent at exhibit M9 to M20. It is contended that the workman has no opportunity to speak about the correctness and genuineness of the history sheet - exhibit m9 to M20. ( 10 ) IT is contended that the Labour Court committed illegality in considering the history sheet produced by the respondent at exhibit M9 to M20. It is contended that the workman has no opportunity to speak about the correctness and genuineness of the history sheet - exhibit m9 to M20. It is also contended that before the enquiry officer, the history sheet is not produced and it is only before the Labour court, the same is produced. It is important to note that after filing the claim statement by the workman before the Labour Court, the respondent filed its counter. In the counter statement filed by the respondent at Annexure 'b', para 9 reads as under:"it is submitted the second party denies the contention of the first party that the order of dismissal is wrong and punishment is excessive. The first party has been absent habitually without prior permission from january 1 to 31, 1979, February 21 to 28, 1979, March 1 to September 15, 1979, october 17 to 23, 1079 and from November 8, 1979 to December 7, 1979, and from february 18, 1980 to February 29, 1980 besides his past records being very bad: his attendance in the past years was bad as follows: 1978 (attended only 5 days out of 301 working days) 1977 (attended only 102 days out of 299 working days) 1976 (attended only 158 days out of 302 working days) 1975 (attended only 118 days out of 301 working days) 1972 (attended only 83 days out of 301 working days) he has been issued advisory letters for corrective action. At all events the arguments that the punishment is excessive cannot be agreed to. The contention of the first party that the entire enquiry is illegal and improper cannot be agreed by (sic) us. "when the respondent in its counter specifically pleaded in detail what is contained in the history sheet of the workman at exhibit M9 to M20, it was open for the petitioner to rebut the same by filing a rejoinder or by adducing evidence. ( 11 ) IN the instant case, the petitioners have neither adduced evidence nor filed any rejoinder and in the absence of the same, it is not open for the petitioners to contend that the respondent has not proved the correctness and genuineness of the history sheet - exhibits m9 to M20. ( 11 ) IN the instant case, the petitioners have neither adduced evidence nor filed any rejoinder and in the absence of the same, it is not open for the petitioners to contend that the respondent has not proved the correctness and genuineness of the history sheet - exhibits m9 to M20. In addition to that, a Division bench of this Court in the case of Managing director, Karnataka State Road Transport corporation v. K. B. Chandrashekar, 2002- ii-LLJ-1003 (Kant) has held that while imposing punishment, past history of the workman can be taken into consideration. In view of the law laid down by this Court, the labour Court is justified in considering the history sheet - exhibits M9 to M20 and there is no infirmity in the impugned award. ( 12 ) THE workman joined duty in the year 1960 and he was dismissed from service on July 13, 1981. For nearly 21 years, the workman has served the respondent-establishment. The litigation is pending from 1980. During the pendency of the litigation, the workman died on February 22, 2000. Now the legal representatives of the deceased workman are contesting the proceedings. During the pendency of the proceedings before the Labour court, vide order dated January 21, 1995, it was held that the domestic enquiry was (sic) not fair and proper. Pursuant to the findings on issue No. 1 by the Labour Court, the deceased workman received interim relief till his demise in 2000. Keeping in consideration these facts, it will be just and proper to direct the respondent not to recover any sum payable by the deceased workman from the petitioners who are the legal representatives. ( 13 ) FOR the reasons stated above, the writ petition is rejected. The award confirming the termination of workman remains intact. The award is modified to the extent that the respondent shall not recover any money from the petitioners, if it is payable by the deceased workman. Ordered accordingly. --- *** --- .