SUPREME COURT OF INDIA
North Eastern Karnataka R.T. Corporation
Vs
Ashappa
Appeal (Civil) 2637 of 2006 (Arising Out of S.L.P. (Civil) No.9644 of 2005)
(S. B. Sinha and P. K. Balasubramanyan, JJ)
12.05.2006
S. B. SINHA, J.
Leave granted.
This 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.
The 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:
"23. 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 unreasonable one. I am 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:
"The 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.
It is 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:
"When 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.
Taking 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.
The 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.
The 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 minor
offence.
Remaining 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.
In Delhi Transport Corporation v. Sardar Singh, this Court opined:
"11. Conclusions regarding 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 Respondent stating:
"It 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. Doctrine 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 stating:
"Contention 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."
In Hombe Gowda Educational Trust and Another v. State of Karnataka and Others,
this Bench opined:
"The 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. The jurisdiction to interfere with the quantum of punishment could be
exercised only when, inter alia, it is found to be grossly disproportionate.
This 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
punishment.
Assaulting 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 a chappal. Punishment of dismissal from services, therefore, cannot be
said to be wholly disproportionate so as shock one's conscience.
A 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. Maintenance 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 , this Court held:
"For 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.