Eastern Karnataka R.T. Corpn. Vs. Ashappa  Insc 322 (12 May 2006)
& P.K. Balasubramanyan
out of S.L.P. (Civil) No.9644 of 2005] S.B. SINHA, J :
appeal is directed against a judgment and order dated 2.03.2005 passed by the
Karnataka High Court in Writ Appeal No. 3976 of 2002 whereby and whereunder the
writ appeal filed by the Appellant herein from a judgment and order dated
11.06.2002 passed by a learned Single Judge of the said High Court in W.P. No.
25259 of 1999 was dismissed.
Respondent was working as a conductor. He remained unauthorisedly absent from
27.11.1990 to 02.12.1990. He did not report for duty with effect from
16.05.1992. His leave records were seen and it was found that he had repeatedly
remained unauthorisedly absent. On the aforementioned charges, a departmental
proceeding was initiated against him. He was found guilty of commission of the
said misconduct and was directed to be dismissed from service by an order dated
6.08.1994. He raised an industrial dispute in relation to the said order of
dismissal from service culminating in a reference being made by the Government
of Karnataka to Labour
Court, Gulbarga for resolution of the said dispute.
A preliminary issue was raised before the Labour Court and by a judgment and order dated 30.04.1996, it was found
that the disciplinary proceedings held as against the Respondent was not fair
and legal. The parties thereafter adduced their respective evidence before the Labour Court. By an award dated 28.06.1996, it
was held that the Respondent remained absent from 27.11.1990 to 02.12.1993 and,
thus, committed a misconduct. It was, however, opined:
"In a normal course the
reasonable punishment would be to disallow the back wages and continuity of
service from the date of dismissal to till the date of reinstatement. But in
this case the D.E. has been set aside and the claimant has been granted interim
relief. If the back wages and continuity of service are disallowed from the
date of dismissal to the date of reinstatement the punishment would be somewhat
of the opinion that it is a fit case to disallow the back wages and continuity
of service from the date of dismissal, i.e., 6-8-94 till the date of granting the interim relief, i.e., 29.1.95
as a lesser punishment." It was, however, directed:
Respondent is directed to reinstate the claimant I-Party to his original post.
The claimant I-Party is entitled for back wages at the rate of 75% of the wages
what he was getting at the time of dismissal or 75% of the wages in the current
rate whichever is more from the date of granting the interim relief 30.1.95.
The claimant is deemed to have been continued in servie from the said date.
hereby ordered that the claimant I-Party is not entitled for back wages and
continuity of service from the date of dismissal i.e., 6.8.94 to till the date
of granting the interim relief i.e., 29.1.95 as a lesser punishment. I direct
both the parties to bear their respective costs." A writ petition was
filed thereagainst by the Appellant which was dismissed by a learned Single
Judge of the High Court holding:
a worker has remained unauthorisedly absent for such a long duration in the
normal circumstances, Labour Court was not justified in interfering with the
order of punishment imposed by the management but in the facts of the case, the
workman was awarded some interim relief in the year 1995 and by an interim
order of this court in the year 1999 he has been reinstated and has been working.
these factors into consideration and having regard to the long absence of the
workman, it is a fit case that he should be denied the payment of backwages
from the date of dismissal till the date of reinstatement." As noticed
hereinbefore, the writ appeal filed by the Appellant has been dismissed.
learned counsel appearing on behalf of the Appellant would submit that the Labour
Court as also the High Court committed a serious error in arriving at a finding
that absenting oneself from duty for such a long time can be treated to be a
minor misconduct and remaining absent from duty for 129 days should not have
been treated leniently and as such, the impugned judgment cannot be sustained.
He also pointed out that the finding of the Labour Court in paragraph 19 of its award was that the absence was from
27.11.1990 to 2.12.1993, a period of three years and five days.
charges against the Respondent were proved. Even the Labour Court, before whom the parties adduced
evidences, found that the Respondent was absent for over three years. The Labour Court, however, proceeded on the basis
that over-staying on leave or absence from duty partook to the nature of a
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
organization. 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.
Delhi Transport Corporation v. Sardar Singh [(2004) 7 SCC 574], this Court
negligence and lack of interest can be arrived at by looking into the period of
absence, more particularly, when same is unauthorised. Burden is on the
employee who claims that there was no negligence and/or lack of interest to
establish it by placing relevant materials. Clause (ii) of para 4 of the
Standing Orders shows the seriousness attached to habitual absence. In clause (i)
thereof, there is requirement of prior permission. Only exception made is in
case of sudden illness. There also conditions are stipulated, non-observance of
which renders the absence unauthorised." Yet recently in State of U.P. v. Sheo Shanker Lal Srivastava and Others [(2006) 3
SCC 276], it was opined that the Industrial Courts or the High Courts would not
normally interfere with the quantum of punishment imposed upon by the
is now well-settled that principles of law that the High Court or the Tribunal
in exercise of its power of judicial review would not normally interfere with
the quantum of punishment.
of proportionality can be invoked only under certain situations. It is now
well-settled that the High Court shall be very slow in interfering with the
quantum of punishment, unless it is found to be shocking to one's
conscience." The said principle of law has been reiterated in A. Sudharkar.v.
Post Master General, Hyderabad and Anr.[2006 (3) SCALE 524]
of Dr. Pillai relating to quantum of punishment cannot be accepted, having
regard to the fact that temporary defalcation of any amount itself was
sufficient for the disciplinary authority to impose the punishment of
compulsory retirement upon the Appellant and in that view of the matter, the
question that the third charge had been partially proved takes a back seat.
Gowda Educational Trust and Another v. State of Karnataka and Others [(2006) 1 SCC 430], this Bench opined:
Tribunal's jurisdiction is akin to one under Section 11A of the Industrial
Disputes Act. While exercising such discretionary jurisdiction, no doubt it is
open to the Tribunal to substitute one punishment by another; but it is also
trite that the Tribunal exercises a limited jurisdiction in this behalf.
jurisdiction to interfere with the quantum of punishment could be exercised
only when, inter alia, it is found to be grossly disproportionate.
Court repeatedly has laid down the law that such interference at the hands of
the Tribunal should be inter alia on arriving at a finding that no reasonable
person could inflict such punishment The Tribunal may furthermore exercises its
jurisdiction when relevant facts are not taken into consideration by the
Management which would have direct bearing on the question of quantum of
a superior at a workplace amounts to an act of gross indiscipline. The
Respondent is a teacher. Even under grave provocation a teacher is not expected
to abuse the head of the institution in a filthy language and assault him with
of dismissal from services, therefore, cannot be said to be wholly
disproportionate so as shock one's conscience.
person, when dismissed from services, is put to a great hardship but that would
not mean that a grave misconduct should go unpunished. Although the doctrine of
proportionality may be applicable in such matters, but a punishment of
dismissal from service for such a misconduct cannot be said to be unheard of.
of discipline of an institution is equally important. Keeping the
aforementioned principles in view, we may hereinafter notice a few recent
decisions of this Court." In State of Rajasthan and Another v. Mohd. Ayub Naz [(2006) 1 SCC 589], this Court held:
the foregoing reasons, we are of the opinion that a government servant who has
willfully been absent for a period of about 3 years and which fact is not
disputed even by the learned Single Judge of the High Court, has no right to
receive the monetary/ retrial benefits during the period in question. The High
Court has given all retrial benefits which shall mean that a lump sum money of lakhs
of rupees shall have to be given to the respondent. In our opinion, considering
the totality of the circumstances, and the admission made by the respondent
himself that he was willfully absent for 3 years, the punishment of removal
imposed on him is absolutely correct and not disproportionate as alleged by the
respondent" For the reasons aforementioned, the impugned judgment cannot
be sustained which is set aside accordingly. The appeal is allowed. No costs.