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2019 DIGILAW 336 (KAR)

Chief Traffic Manager v. S. Ganesh

2019-02-01

L.NARAYANA SWAMY, P.S.DINESH KUMAR

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JUDGMENT : 1. Bengaluru Metropolitan Transport Corporation (BMTC for short) has challenged order dated 22.03.2017 passed by the Hon’ble Single Judge in W.P.No.517/2010. 2. Heard Shri Hareesh Bhandary T., learned advocate for the appellant and Shri R.Somasundar Rao, learned advocate for the respondent. 3. Briefly stated the facts of the case are, whilst respondent was working as a driver with BMTC in Depot No.12, he was placed under suspension. On 22.11.2000, his suspension order was revoked. Respondent did not report for duty after revocation of suspension. The Depot Manager reported unauthorized absence. Accordingly, BMTC issued a call notice on 21.09.2001. Yet, respondent did not report for duty. The Disciplinary Authority framed and sent imputation of charges on 25.09.2001 by registered post. The respondent did not respond to the charge sheet. A domestic enquiry was conducted after serving a notice through the Security Department of BMTC. A public notice was also given on 18.06.2002, calling upon the respondent to appear before the Enquiry Officer. Since respondent did not appear, the Enquiry Officer proceeded ex parte and submitted his report, holding the charges as proved. The Disciplinary Authority dismissed the respondent by order dated 31.05.2003. Feeling aggrieved, respondent raised a dispute before the Conciliation Officer. Upon failure of conciliation proceedings, reference was made to III Additional Labour Court, Bengaluru, under Section 10(1)(C) of the Industrial Disputes Act (the Act for short). The Labour Court framed an issue whether domestic enquiry was conducted in just and fair manner and answered in the negative. Both Management and respondent let in their evidence. The Labour Court on appreciation of evidence on record, rejected the reference. Feeling aggrieved, respondent filed the instant writ petition before this Court. The Hon’ble Single Judge, by the impugned order, has allowed the writ petition, set aside the order of dismissal and directed respondents reinstatement with continuity of service and all consequential benefits together with 25% back wages. Hence, this writ appeal. 4. Feeling aggrieved, respondent filed the instant writ petition before this Court. The Hon’ble Single Judge, by the impugned order, has allowed the writ petition, set aside the order of dismissal and directed respondents reinstatement with continuity of service and all consequential benefits together with 25% back wages. Hence, this writ appeal. 4. Shri Harish Bhandari, learned advocate for the appellant urged following contentions: that respondent did not report for duty after revocation of suspension and did not appear before the Enquiry Officer; that after a lapse of three years from the date of dismissal, respondent raised the dispute before the Conciliation Officer; that Labour Court by a well reasoned award has rejected the reference; that the Hon’ble Single Judge failed to notice that a common order was passed revoking petitioners suspension along with seven other drivers as per exhibit M-13 and the same was sent to all concerned parties and depots; that respondent was receiving the subsistence allowance during the period of suspension which was stopped simultaneously with revocation of suspension. Notwithstanding the same, respondent did not report for duty for about two years. Therefore, substitution of opinion on the same set of facts on re-appreciation of evidence by the Hon’ble Single Judge in writ proceedings is unsustainable in law. 5. With the above submissions, Shri Bhandary prayed for allowing this writ appeal. 6. Shri R.Somasundar Rao, learned advocate for the respondent argued in support of the impugned order. 7. We have carefully considered the submissions of learned advocates for the parties and perused the records. 8. Indisputable facts of the case are, respondents suspension order was revoked on 22.11.2000 as per exhibit M-13 which is Revocation of Suspension cum Transfer Order. Respondent did not report for duty. After holding a domestic enquiry, he was removed from service on 31.05.2003. 9. Before the Labour Court, respondent admitted that he was working in Depot No.12 since 1993. Though, he denied his transfer from Depot No.12, he has admitted that his name was found in exhibit M-13. His sole contention is that he was not served with the order revoking suspension and transferring him to Depot No.3. 10. Exhibit M-13 is the order revoking suspension of petitioner along with seven other employees. Respondent has admitted that M-13 contains his name. It is not in dispute that he was receiving subsistence allowance from the management. His sole contention is that he was not served with the order revoking suspension and transferring him to Depot No.3. 10. Exhibit M-13 is the order revoking suspension of petitioner along with seven other employees. Respondent has admitted that M-13 contains his name. It is not in dispute that he was receiving subsistence allowance from the management. Subsistence allowance is stopped simultaneously with revocation of suspension. Respondent has admitted that he did not submit any representation. He has also not disputed his home address maintained in BMTC records. 11. Learned Labour Court has recorded that respondent did not report for two years after he was transferred from Depot No.12 to 3. 12. The Supreme Court of India in North-Eastern Karnataka RT Corpn. v. Ashappa, (2006) 5 SCC 137 has held as under: "8. Remaining absent for a long time, in our opinion, cannot be said to be a minor misconduct. The appellant runs a fleet of buses. It is a statutory organisation. It has to provide public utility services. For running the buses, the service of the conductor is imperative. No employer running a fleet of buses can allow an employee to remain absent for a long time. The respondent had been given opportunities to resume his duties. Despite such notices, he remained absent. He was found not only to have remained absent for a period of more than three years, his leave records were seen and it was found that he remained unauthorisedly absent on several occasions. In this view of the matter, it cannot be said that the misconduct committed by the respondent herein has to be treated lightly." 13. It is settled that High Court while exercising power under Article 227 of the Constitution of India, shall not ordinarily correct mere error of facts or law unless the error is shown to be apparent on the face of the record or it is based on clear ignorance or utter disregard to the provisions of law. It is also settled that High Court shall not convert itself into a Court of appeal and indulge in re-appreciation of evidence unless a great injustice is demonstrated. 14. In the light of the staring fact that petitioner did not chose to report for duty for two years after revocation of suspension and the law on the point, in our considered view, the impugned order is not sustainable. 14. In the light of the staring fact that petitioner did not chose to report for duty for two years after revocation of suspension and the law on the point, in our considered view, the impugned order is not sustainable. Accordingly, this appeal merits consideration. Hence, the following: ORDER (i) Writ appeal is allowed; (ii) Order dated 22.03.2017 passed by the Hon’ble Single Judge in W.P.No.517/2010 is set aside; (iii) Order dated 21.04.2009 passed by the Presiding Officer, III Additional Labour Court, Bengaluru, in Reference 57/2005, is restored. No costs.