important point
Habitual absenteeism amounts to gross violation of discipline.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Leave granted.

2.Challenge in this appeal is to the judgment rendered by a Division Bench of the Karnataka High Court allowing the writ appeal filed by the respondent (hereinafter referred to as the ‘workman’) while dismissing the writ appeal filed by the appellant.

3.Undisputed background facts are as follows :

“Respondent had been working as an employee with M/s L&T Komatsu Ltd., Bangalore. He remained absent unauthorisedly for 105 days between 1.8.2000 and 30.4.2001. Disciplinary proceedings were initiated against him and a regular departmental enquiry was held. It is common case of the parties that the charge of unauthorized absence was proved in the said enquiry which has been found to be fair and proper and in accordance with the principles of natural justice. The enquiry report was accepted by the management and the respondent was dismissed from service. This dismissal gave rise to an industrial dispute and the workman filed an application under Sub-section (4A) of Section 10 of the Industrial Disputes Act, 1947 (as introduced in the State of Karnataka) (for short the ‘Act’). On a consideration of oral and documentary evidence led by the parties and having regard to the fact that the workman had been remaining absent on several occasions, the Labour Court found that though the workman was remaining absent unauthorisedly, the extreme punishment of dismissal from service was too harsh and disproportionate to the gravity of the charge and that lesser punishment would meet the ends of justice. Accordingly, the order of dismissal was set aside and the management was directed to reinstate the workman with continuity of service but without back wages. The Labour Court awarded the punishment of stoppage of four increments with cumulative effect. This award came to be challenged by the management in the writ petition. On a consideration of the contentions advanced before him the Learned Single Judge modified the award and deprived the workman from continuity of service. In other words, management was directed to reinstate the workman without continuity of service while maintaining the remaining part of the award. It is against this order that both the management and the workman filed writ appeals before the Division Bench.”

4.Learned Single Judge noted that there were proved cases of misconduct of unauthorized absentism for 15 times but the workman had not improved his conduct. Notwithstanding this finding, learned Single Judge held that at the relevant point of time the workman was not well and was taking treatment at St. Martha Hospital. Accordingly it was held that the order of termination is harsh under the facts and circumstances of the case but looking into the past history directed reinstatement without continuity of service and without back wages. By the impugned order the Division Bench allowed the appeal filed by the respondent while dismissing the appeal filed by the present appellant.

5.In support of the appeal learned counsel for the appellant submitted that it was not for the first time that the respondent was guilty of absentism; on the contrary there were 15 such earlier instances without any justifiable reason. The Labour Court directed reinstatement with continuity of service but not back wages. Learned Single Judge, on the other hand, instead of holding that the interference of the Labour Court with the quantum of punishment was not justified, directed reinstatement without continuity of service and back wages. The Division Bench without noticing the relevant factors has directed reinstatement without back wages but with continuity of service.

6.It is submitted that habitual absentism is gross violation of discipline. It is also submitted that the parameters for the exercise of Section 11A of the Act have not been kept in view by the Labour Court and the High Court.

7.In response, learned counsel for the respondent submitted that because of personal problems there was unintentional a