NORTH EASTERN KARNATAKA R.T. CORPORATIONversusASHAPPA AND ANR.

A          NORTH EASTERN KARNATAKA R.T. CORPORATION
                              v.
                       ASHAPPA AND ANR.

                                  MAY 12, 2006

B            [S.B. SINHA AND P.K. BALASUBRAMANYAN, JJ.]

         Labour Laws :

         Industrial Disputes Act, 1947:
c                                                                                  '
           Employee-Unauthorised absence ji-om duty-Misconduct-Dismissal
    ji-om service-Industrial dispute-Labour Court directing the employer to
    reinstate him to original post and also for payment of back wages-
     Challenge to-Dismissed by High Court-On appeal, Held: Errant employee
D    was asked to resume his duties but he did not report for duties-He was also
    found unauthorisedly absent from duty on several occasions earlier-
     Absence ofan employee from duty for a long time cannot be treated as minor
     misconsduct-The misconduct committed by the employee could not be
     treated lightly-Hence, the impugned order cannot be sustained, and set
     aside.
E
          The respondent was a conductor. He remained unauthorisedly
    absent from duty for a certain p~riod; and when he was asked to resume
    his duties he did not report for duties. A departmental proceeding was
    initiated against him. He was found guilty of committing misconduct,
    hence dismissed from service. He raised an industrial dispute. The
F
    Government of Karnataka made a reference of the dispute to Labour
    Court. Though the Labour Court found him guilty of committing
    misconduct but observed that the disciplinary proceedings conducted
    against him was not fair and legal. Hence, the Court directed the
    appellant-employer to reinstate him to his original post and also directed
G   for payment of back wages. A writ petition was filed thereagainst by
    the appellant which was dismissed by a Single Judge of the High Court.
    The writ appeal filed by the appellant was also dismissed by the Division
    Bench of the High Court. Hence the present appeal.


H        The appellant-employer contended that the Labour Court as also
                                        708
      NORTH EASTERN KARNATAKA R.T. CORPN. v. ASHAPPA [SINHA, J.]    709

the High Court committed a serious error in arriving at a finding that     A
absenting oneself from duty for a period of 129 days can be treated
to be a minor misconduct, and remaining absent for such a long period
should not have been treated leniently.

     Allowing the appeal, the Court
                                                                           B
     HELD : Remaining absent for a long time cannot be said to be a
minor misconduct. The appellant-State Road Transport Corporation
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-
                                                                           c
employee had been given opportunities to resume his duties by issuing
notices. 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,    D
it cannot be said that the misconduct committed by the respondent has
to be treated lightly. (712-B-C]

     Delhi Transport Corporation v. Sardar Singh, (2004) 7 SCC 574;
Hombe Gowda Educational Trust and Anr. v. State of Karnataka & Ors.,
[2006] 1 SCC 430 and State of Rajasthan & Anr. v. Mohd Ayub Naz,           E
(2006] I SCC 589, relied on.

     State of U.P. v. Shea Shankar Lal Srivastava & Ors., [2006) 3 SCC
276 and A. Sudharkar v. Post M.aster General, Hyderabad & Anr., (2006)
2 SCALE 524, referred to.
                                                                           F
     CIVIL APPELLATE JURISDICTION            Civil Appeal No. 2637 of
2006.

    From the Judgment and Order dated 2.3.2005 of High Court of
Kamataka at Bangalore in Writ Appeal No. 3976/2002 [LK]                    G
     Ms. Anitha Shenoy for the Appellant.

     The Judgment of the Court was delivered by

     S.B. SINHA, J. : Leave granted.                                       H
    710                 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A        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 I 1.06.2002 passed by a learned Single Judge
    of the said High Court in W.P. No. 25259 of 1999 was dismissed.

B          The Respondent was working as a conductor.              He remained
    unauthorisedly absent from 27. I 1.1990 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
c   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
D
    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. I 996,
    it was held that the Respondent remained absent from 27 .11.1990 to
    02. I 2.1993 and, thus, committed a misconduct. It was, however, opined:
E
             "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.
F            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. l.95 as a lesser punishment."
G
          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
H            the rate of 75% of the wages what he was getting at the time of
      NORTH EASTERN KARNATAKA R.T. CORPN. v. ASHAPPA [SINHA, J.]             711

        dismissal or 75% of the wages in the current rate whichever is               A
        more from the date of granting the interim relief 30.1.95. The
        claimant is deemed to have been continued in service 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
                                                                                     B
         i.e., 6.8.94 to till the date of granting the interim reliefi.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               C
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        D
         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         E
         denied the payment of backwages from the date of dismissal till the
         date of reinstatement."

     As noticed herein before, the writ appeal filed by the Appellant has been
dismissed.                                                                           F
      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            G
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                 H
    712                  SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A   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
    natun: of a minor offence.

          Remaining absent for a long time, in our opinion, cannot be said to be
B   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
c   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.
D         In Delhi Transport Corporation v. Sardar Singh, (2004] 7 SCC 574,
    this Court opined:

                   "I I. Conclusions regarding negligence and lack of interest can
             be arrived at by looking into the period of absence, more particularly,
E            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
F            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 UP. v. Shea Shanker Lal Srivastava and
    Others, (2006] 3 SCC 276, it was opined that the Industrial Courts or the
G High Courts would not nonnally 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
H            would not normally interfere with the quantum of punishment.
      NORTH EASTERN KARNATAKA R.T. CORPN. v. ASHAPPA [SINHA, J.]          713

        Doctrine of proportionality can be invoked only under certain             A
        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:
                                                                                  B

             "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          c
        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, [2006] I SCC 430, this Bench opined:
                                                                                  D
              "The Tribunal's jurisdiction is akin to one under Section l lA
             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    E
             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        F
             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.                                   G

                    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    H
    714                  SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A                 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
                  gr~at hardship but that would not mean that a grave misconduct
B                 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
c                 in view, we may hereinafter notice a few recent decisions of
                  this Court."

         In State of Rajasthan and Another v. Mohd. Ayub Naz, [2006] I SCC
    589, this Court held:
D
             "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
E            benefits which shall mean that a lump sum money oflakhs 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
F            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.

    S.K.S.                                                       Appeal allowed.