AYUB DESHNUR

D SAig Mit Ral Ely

E s Nig An Ye Ud Bby

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND DESHNUR L Oo Fc a Kt Aio Rn N: AH TIG AKH A COURT 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS.

THIS WRIT PETITION IS LISTED FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, AN ORDER IS MADE AS UNDER:

ORAL ORDER

Sri.Chandrashekhar S.Nagashetti, counsel for the petitioner and Counsel Smt.H.R.Renuka, on behalf of Sri. Prakash N.Hosamani, for the respondent have appeared in person.

2. The brief facts are these:

The petitioner was an employee in the establishment of the Corporation. He came under disciplinary inquiry proceedings for an act of misconduct and unauthorized absence. The Disciplinary Authority imposed an order of punishment on 14.09.2005. The workman raised a dispute before the Labor Court, Hubli, in REF.No.10/2011. The Labor Court, vide the award dated 03.04.2012, rejected the Reference. This award is called into question in this Writ Petition on several grounds as set out in the Memorandum of Writ Petition.

3. Counsel for the respective parties urged several contentions.

Counsel for the petitioner submits that the question of delay does not arise in industrial disputes. He contends that the Labor Court erred in rejecting the reference and that the award requires interference. Conversely, learned counsel for the respondent submits that there was an inordinate delay in raising the dispute. She argues that the Labor Court, upon an extensive consideration of the material on record, rightly rejected the reference, and therefore, the order does not warrant interference.

4. I have heard the arguments advanced by both sides and carefully perused the writ papers.

5. The short point that arises for consideration is whether the award of the Labor Court requires interference.

6. The petitioner was subjected to disciplinary inquiry proceedings for an act of misconduct, namely unauthorized absence, and was visited with the punishment of dismissal from service on 14.09.2005. The charge against the petitioner was that he remained absent from duty without authorization from 22.12.2003 to 24.06.2004. The Corporation specifically contended that no leave application was submitted, and even if one had been submitted, it ought to have been accompanied by a medical certificate if the leave was sought on health grounds.

The workman attempted to contend before the Labor Court that he was suffering from enteric fever, amebic fever, and hepatitis, and therefore could not attend duty. He furnished medical certificates dated 22.05.2003 to 27.10.2003, marked as Ex.W.3 to W.5. The Labor Court rightly disbelieved this contention, as the certificates pertained to a period prior to the absence in question.

It is well settled that an employee is under an obligation not to absent himself from work without good cause during the time he is required to be at work. Absence without leave constitutes misconduct in industrial employment, warranting disciplinary punishment. No employee can claim leave of absence as a matter of right, and remaining absent without leave amounts to a violation of discipline. The quantum of punishment in cases of unauthorized absence depends upon the facts of each case. In the present case, the delinquent remained absent without submitting a leave application or obtaining prior permission from the competent authority.

7. Moreover, there was an inordinate delay of almost six years in raising the dispute. The Hon’ble Apex Court in Prabhakar v. Joint Director, Sericulture Department and Another, (2015) 15 SCC 1, has held that when there is no agitation by the workman against the order of punishment and the dispute is raised belatedly, with the delay and laches remaining unexplained, it should be presumed that the workman has waived his right. It was further observed that at the time when the dispute was raised, it had become stale and was not an existing dispute. Even in the present