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2018 DIGILAW 770 (KAR)

Division Controller BMTC v. A. Ravikumar

2018-07-04

A.S.BOPANNA

body2018
ORDER : A.S. BOPANNA, J. 1. The petitioner-Corporation is before this Court assailing the award dated 09.09.2016 passed in ID.No.28/2015. 2. The respondent herein was working as a driver in the petitioner-Corporation. For the act of remaining un-authorizedly absent without leave from 13.08.2013, the respondent was proceeded against and in view of the respondent being held guilty of the charges in the domestic enquiry, he was dismissed from service through order dated 31.03.2015. The respondent herein claiming to be aggrieved, raised a dispute by filing a petition under Section 10(4A) of the Industrial Disputes Act in ID.No.28/2015. The labour Court through the award dated 09.09.2016 has set aside the dismissal order and directed reinstatement without back-wages, but with consequential benefits. The petitioner-Corporation, therefore, claiming to be aggrieved is before this Court in this writ petition. 3. Heard the learned counsel for the parties and perused the petition papers. 4. Learned counsel for the petitioner-Corporation would contend that the absence is for a long period of one year and seven months and in that circumstance, it was established before the enquiry that such absence was without sanction of leave. The petitioner was justified in its action is the submission. In that regard, it is contended that the labour Court without referring to these aspects of the matter has set aside the dismissal order in a casual manner and therefore, the same calls for interference. 5. Learned counsel for the respondent would, however, point out that the labour Court has taken into consideration the circumstances under which the respondent was forced to remain absent, despite he having sought for leave and in that light, has arrived at a conclusion that an opportunity is required to be granted and the order of dismissal being disproportionate, has set aside the same. It is contended that the labour Court in any event has denied the back-wages and as such, the same would be a major set back to the respondent and in that view, the award does not call for interference. 6. In the light of the rival contention and a perusal of the award as passed by the labour Court, would indicate that the labour Court had considered the validity or otherwise of the enquiry as preliminary issue, it was held that the same is fair and proper. 6. In the light of the rival contention and a perusal of the award as passed by the labour Court, would indicate that the labour Court had considered the validity or otherwise of the enquiry as preliminary issue, it was held that the same is fair and proper. It is in that light, the labour Court has examined the finding of the Enquiry Officer and the action taken by the Disciplinary Authority to arrive at a conclusion as to whether the same would admit of any perversity and though finding was not recorded, the labour Court in fact has taken note of the circumstances under which the respondent was forced to remain absent. 7. In that regard, having taken into consideration the dismissal order at Ex.M.21 and though, it was seen that the respondent had remained absent for a period of one year and seven months, an undisputed fact of the death of his son and due to which, the respondent claimed that his wife had become ill, which had resulted in depression being suffered by the respondent, was accepted by the labour Court and finding the same to be a mitigating circumstance, was of the opinion that even if such absence was established, the petitioner-Corporation ought to have taken a lenient view instead of harsh punishment of dismissal. While arriving at such conclusion, the labour Court has also taken note of the documents at Exs.W.1 to W.3, which were relied upon by the respondent to indicate that in similar circumstance, where the employees concerned therein were absent for a long period, a lenient view has been taken by the petitioner-Corporation. 8. In that circumstance, the totality of the nature of consideration as made by the labour Court is taken note, insofar as the labour Court arriving at a conclusion that the dismissal order was too harsh and directed reinstatement, the award would not call for interference. However, in the circumstance where long absence was without sanction of leave and taking note of the mitigating circumstance when the reinstatement was ordered, it is no doubt a situation where the respondent is granted the benefit to reform himself. In such circumstance, a lighter punishment in any event ought to have been imposed by the labour Court. 9. Hence, to that extent, it is ordered that on reinstatement, the petitioner-Corporation shall impose the punishment of withholding one increment with cumulative effect. In such circumstance, a lighter punishment in any event ought to have been imposed by the labour Court. 9. Hence, to that extent, it is ordered that on reinstatement, the petitioner-Corporation shall impose the punishment of withholding one increment with cumulative effect. Such punishment shall be imposed while taking note of the consequential benefits to be granted in notional terms and while doing so, one increment shall be withheld and the remaining increments shall be granted in notional terms for the purpose of fixing the salary as on the date of reinstatement. Hence, with limited modification of the award to that extent, the instant writ petition stands disposed of.