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IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
SURAJ GOVINDARAJ, J.
Yenkappa S/o Sayappa – Petitioner
Versus
The Rajashree Cements Factory – Respondent
Writ Petition No. 86400 of 2012
Decided On : 08-06-2023
Industrial Disputes Act, 1947 - Section 10(4-A) - Dismissed from service - Unauthorized absence - Order for reinstatement - Petitioner was employed in year - In year, when petitioner was unauthorizedly absent for a period of 89 days, a charge sheet came to be issued for unauthorized absence - Reply thereto not being acceptable, an Enquiry Officer was appointed who submitted a report stating that the delinquency of petitioner has been proved - On basis of the said report, Disciplinary Authority dismissed the petitioner from service - Whether workman is guilty or not has to be inquired into Decided On : novo by Tribunal - Whether it was unauthorized and/or justifiable -Submission is that except making such excuses and providing justifications, there is no evidence which was led by petitioner to establish cause of his absence so as to come within the purview of 'not being wantonly absent from service. [Para 6.3]
Finding of Court : Contention is raised that employment of workman was in lieu of land acquired and that the services of the workman could not be terminated, a perusal of documents indicates that acquisition having occurred long ago, petitioner was employed in year 1991 and it is only in year 2010 after 19 years of service, that termination occurred - It cannot be said that termination of services of petitioner is in order to get over obligation agreed upon after acquisition - Further more, no malafides can be imputed on employer after a period of 19 years of service - Applying same to present facts, enquiry against workman being held to be not fair and proper, termination of services would have be treated as suspension from date of termination till the date of award and petitioner would be entitled for subsistence wages during said period.
Result : Writ Petition is partly allowed.
ORDER :
1. The petitioner is before this Court seeking for the following reliefs:
(b) Issue any other Writ or order as deemed fit by the Hon'ble Court in the interest of justice.”
2. The petitioner claims to be the land owner who was employed by the respondent-employer in its cement factory as a Mechanic Labour in lieu of the land belonging to the petitioner being acquired by the respondent as a part of such acquisition apart from making payment of sale consideration for the said property.
3. The petitioner was employed in the year 1991. In the year 2010, when the petitioner was unauthorizedly absent for a period of 89 days, a charge sheet came to be issued for unauthorized absence. Reply thereto not being acceptable, an Enquiry Officer was appointed who submitted a report stating that the delinquency of the petitioner has been proved. On the basis of the said report, the Disciplinary Authority dismissed the petitioner from service.
4. The petitioner filed a claim petition under Section 10(4-A) of the Industrial Disputes Act, 1947 (for short, hereinafter referred to as 'ID Act') challenging the order of dismissal in KID No. 157/2011 before the Labour Court, Gulbarga. The said Labour Court vide its award dated 12.06.2012 dismissed the claim petition. It is aggrieved by the same, the petitioner is before this Court.
5. Sri.P.Vilaskumar, learned Senior Counsel appearing on behalf of Sri.Nitesh Padiyal, for the petitioner would submit that:
5.2. That the Labour Court having come to a conclusion that the disciplinary enquiry was not fair and proper vide its order dated 29.02.2012, no evidence having been led by the employer to establish the guilt of the petitioner, there is in fact no evidence which could have been considered by the Labour Court to hold the guilt against the petitioner resulting in dismissal of the petitioner.
5.3. The submission is that the petitioner being unauthorizedly absent only for a period of 89 days, the punishment of dismissal which has been imposed is not proportionate to the delinquency alleged against the petitioner and as such, the Labour Court ought to have exercised power under the proviso to Section 11-A of the ID Act and ought to have interfered with the order of dismissal by awarding proportionate punishment even in the event of Labour Court having come to a conclusion that the delinquency against the workman is proved. This submission is made in the alternate to the other submissions.
5.4. Another alternate submission made is that on account of the enquiry being held to be not fair and proper, the dismissal order insofar as the petitioner is concerned would stand altered to that of suspension and as such, the petitioner would be entitled to subsistence wages from the date of dismissal till the date of award. In this regard, he relies on the decision of the Division Bench of this Court in The Divisional Controller vs. Ramachandra S/o Keshavarao, W.A. No. 10260/2011 dated 18.07.2012 more particularly, paragraph-2 thereto which is reproduced hereunder for easy reference:
“2. In this case, it is an admitted position that vide order dated 18.12.2006 the Labour Court held that the departmental enquiry conducted against the respondent-employee was unfair and improper and in view thereof, allowed the parties to lead evidence before i
Point of Law : Once domestic enquiry is held to be not fair and proper, then dismissal in furtherance of such enquiry has to be treated as suspension and subsistence wages would have to be paid from ....
The court established that a fair domestic enquiry and proportional punishment for habitual unauthorized absence from duty are essential under the Industrial Disputes Act, 1947, and that the burden o....
The court emphasized the distinct nature of proceedings under Section 33(2)(b) and Section 10 of the I.D. Act, and the limited jurisdiction of the court under Article 226 of the Constitution of India....
Unauthorized absence due to illness can be justified under compelling circumstances, affecting the severity of disciplinary action imposed.
Unauthorized absence without prior permission may amount to misconduct, and the principles of natural justice must be complied with in conducting an enquiry under Section 33(2)(b) of the Industrial D....
Discretion under Section 11-A must be exercised judiciously; compassion cannot be the basis for modifying penalties in labor disputes involving misconduct.
The court clarified that judicial review in disciplinary matters is limited, focusing on procedural fairness and legality, thereby confirming the legality of dismissal for unauthorized absenteeism.
The court upheld the termination of a workman for unauthorized absence, ruling that the enquiry was fair and the management adequately proved the misconduct despite the workman's claims of unfair tre....
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