For unauthorized absence to constitute misconduct warranting dismissal, the disciplinary authority must affirmatively prove that the absence was 'wilful'. In the absence of such a finding, the court may exercise its discretionary powers under Section 11-A of the Industrial Disputes Act to modify a disproportionate punishment.

THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO ALLOWING THIS WRIT APPEAL AND TO SET ASIDE THE ORDER DATED:08.11.2024 IN WP No.14318/2024(L-KSRTC) OF THE SINGLE BENCH AND ETC.

THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE D K SINGH

and

HON'BLE MR. JUSTICE T.M.NADAF

ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE T.M.NADAF)

1. The respondent - employee in W.P.No.14318/2024 is before us in this appeal filed under Section 4 of the Karnataka High Court Act, 1961, challenging the order dated 08.11.2024 passed by the writ Court.

2. The Writ Court under the impugned order allowed the Writ Petition filed by the employer-Corporation, quashing the award dated 29.11.2023 passed by the II Additional Labour Court, Bangalore¹the LC, for short, in ID.No.29/2021 (Annexure-A) and confirmed the order of dismissal dated 31.08.2020.

3. The parties are referred to as per their ranking before the writ Court.

4. The brief facts leading to filing of the present appeal are as under:

The respondent claims that, he has joined the services under the petitioner as a Driver cum Conductor in the year 2006 and maintained blemishless service records and during the last week of November, 2017, because of illness, he could not report to duty. He claims to have sent a leave letter to the depot and informed about his indisposed state and requested to treat the absence period as leave upto the date of report for duty and under the impression that his request was acceded, he had not joined the duty. After recovering from illness, he had submitted a duty report along with medical records and fitness certificate, but the case worker of the Corporation informed him that, an inquiry is proposed against him and after completion of inquiry, he would be permitted to report to duty.

5. He further claims that on the false report of the Corporation, articles of charges have been issued against him, to which he has submitted his reply explaining circumstances under which he was forced to remain absent to duty. A domestic enquiry was held and ended as the charges were proved against the employee. Relying on the domestic enquiry, the disciplinary authority of the Corporation dismissed him from service on 31.08.2020. It is the further case of the respondent that the dismissal order is disproportionate to the alleged misconduct and also discriminate.

6. Aggrieved by the order, he approached the Appellate Authority. As there was no order was passed by the Appellate Authority, he had raised a dispute under the provisions of Industrial Dispute Act, before the Labour and Conciliation Officer.

7. Since the petitioner did not appear before the Appellate Authority, the Appellate Authority issued an endorsement to the respondent to approach the LC, as such the reference raised is in time. Before the LC, he has prayed for setting aside the impugned order of dismissal and for a direction to reinstate him with continuity of service along with back wages and other benefits to which he is entitled.

8. After notice, the Corporation appeared and filed its counter statement contending that, the respondent remained unauthorizedly absent from duties without obtaining any permission from 24.11.2017 to 17.04.2018 i.e., for a period of 145 days continuously without the leave sanctioned by the appropriate authority. In the interregnum, a report was submitted by the Depot Manager on 04.12.2017 in that regard. The disciplinary authority on the said report, issued a call notice on 09.12.2017 to the respondent with a clear instruction to report to duty else disciplinary action will be probed against him. However, the respond