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Judgment
B.S. Patil, J.—These two writ petitions arise out of the award dated 25.07.2005 passed by the Additional Labour Court, Hubballi, in Reference No. 81/1999.
By the impugned award, the Labour Court has set aside the order of dismissal dated 03.12.1994 passed by the Management directing reinstatement of the workman into service without back wages.
W.P. No. 7355/2006 is filed by the workman being aggrieved by the denial of back wages. Whereas, W.P. No. 10830/2006 is filed by the Management being aggrieved by the direction to reinstate the workmen.
Facts, as emerge from the pleadings and the award passed by the Labour Court are, that petitioner-workman was employed as Assistant Lineman in Ramadurg Sub-Division under Hubballi Electricity Supply Company (erstwhile Karnataka Electricity Board) with effect from 01.04.1984. There was a criminal case instituted against the workman in C.C. No. 1025/1983 on the file of the Principal Chief Judicial Magistrate, Belgaum. The workman was found guilty of the offences under Sections 323, 326, 342 read with 34 IPC. He was sentenced to undergo rigorous imprisonment for a period of six months. This was challenged by filing a revision petition before the High Court. The revision petition came to be dismissed.
It is relevant to notice that the workman did not attend to his duties after the order of conviction. He applied for leave contending that his wife was sick. He did not intimate about the order of conviction suffered by him and of his arrest in the criminal case. Indeed, he has undergone imprisonment for six months during the period from 16.06.1988 to 29.12.1988.
A show cause notice dated 18.01.1991 was issued to the workman calling upon him to explain why appropriate action should not be taken against him for his misconduct and misrepresentation while securing leave. The workman did not choose to reply. One more show cause notice was issued on 27.08.1991, this time based on the order of conviction. The show cause notice stated that in view of conviction and the resultant misconduct committed, the Disciplinary Authority had provisionally come to the conclusion to dismiss the workman from the services of the Company. This show cause notice is produced at Annexure-C. No reply was submitted to this show cause notice also. Therefore, the Disciplinary Authority passed an order dated 03.12.1994 dismissing the workman from his service.
Being aggrieved by the said order of dismissal, the workman raised a dispute and the same was referred to the Labour Court. The Labour Court has set aside the order of dismissal and has ordered reinstatement on the ground that the employer ought to have held enquiry by affording opportunity of hearing to the workman and in the absence any enquiry the order of dismissal was erroneous. The Labour Court, has however, declined to award any back wages keeping in mind the facts and circumstances of the case. It is in this background, the aforementioned two writ petitions have been filed by the workman and the management.
Learned Counsel appearing for the workman placing reliance on the judgment in the case of State of M.P. and Others Vs. Hazarilal, contends that in case where the conduct of Government servant has led to his conviction on a criminal charge, the disciplinary authority has been empowered to consider the circumstances of the case and the nature of conduct that has led to his conviction before imposing any penalty and that mere conviction irrespective of the nature of the case in which he was involved and punished cannot entail an order of dismissal. He has invited the attention of the Court to paragraphs 7 and 8 of the aforementioned judgment.
In paragraph 8 of the said judgment, the Apex Court has further observed that an authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment and while exercising such power, the disciplinary authority must act reasonably and fairly.
Learned Counsel appearing for the Management submits that in terms of Regulation 14 of the Karnataka Electricity Board Employees'' (Classification, Disciplinary, Control and Appeal) Regulations, 1987 (for short, ''Regulations''), where a penalty is imposed on the ground of conduct which has led to conviction on a criminal charge, the disciplinary authority may pass order of penalty without conducting any enquiry, but by giving the employee an opportunity to make a representation on the proposed penalty. He points out that in the instant case, as per Annexure-C, a show cause notice was issued on 27.08.1991 proposing penalty of dismissal having due regard to the conviction undergone by the workman for the offence/misconduct committed by him, but the show cause notice was not replied. Therefore, the order of dismissal was rightly passed on 03.12.1994. He further points out that after the order of dismissal, there was considerable delay in seeking reference and the reference itself was made in the year 1999, award came to be passed on 25.07.2005, therefore, the Labour Court was not justified in recording a finding that enquiry should have been held before imposing punishment.
Having heard the learned Counsel for both parties, I find that in the light of Regulation 14 of the Regulations, where a penalty is proposed to be imposed on a Board employee on the ground of misconduct that has led to his conviction on a criminal charge, the disciplinary authority may pass such orders without holding enquiry, but by providing an opportunity to make a representation regarding the proposed penalty. In the instant case, penalty of dismissal was proposed. The workman did not reply to the same. He was sentenced to undergo rigorous imprisonment for more than six months for the offences punishable under Sections 323, 326, 342 read with 34 IPC. He did not raise the dispute for nearly five years, and secured reference only in the year 1999. Without appreciating all this, the Labour Court has jumped to the conclusion that enquiry ought to have been held and therefore, the order of dismissal was illegal. The award of the Labour Court cannot, therefore, be sustained.
If there were any redeeming factors, it was open for the workman to bring it to the notice of the Management by giving a reply that the proposed penalty of dismissal could not be imposed. The workman did not avail such an opportunity. The Management, perhaps, did not want to keep in its establishment a person who has been convicted for the offences under the Penal Code and who had undergone imprisonment for about six months. It may be possible to say in a given case that mere imprisonment for six months shall not entail automatic dismissal of the workman and that discretion has to be exercised by the employer fairly and reasonably. But, for that purpose, the workman must place before the employer, materials that will enable the employer to exercise its discretion in a fair and reasonable manner.
This is a case where the employee has not chosen to place any material nor submit any reply. Therefore, the judgment on which the learned Counsel for the workman has placed reliance does not come to his aid. It is also necessary to notice that in the facts of the said case, a peon appointed in a middle school was said to have assaulted another person and on prosecution he was convicted by the magistrate under Section 323 IPC and sentenced to undergo simple imprisonment for one month. On appeal, the sentence was reduced to a fine of Rs. 500/-. In the instant case, the workman has been prosecuted and punished for causing grievous hurt. He has been convicted for rigorous imprisonment for a period of six months. Revision filed before the High Court has been dismissed. In such circumstances, I do not find any ground to interfere with the order of dismissal passed by the Management. The Labour Court has committed a serious error in interfering with the order of dismissal.
In the result, W.P. No. 7355/2006 filed by the workman is dismissed. W.P. No. 10830/2006 filed by the Management is allowed. The impugned award passed by the Labour Court is set aside.