Yallappa vs The Divisional Controller, NWKRTC

The appellant herein was working as a conductor during the relevant period; he absented himself from duties without taking permission from the department; Therefore, charge is framed against him with regard to unauthorised absence for a period of 158 days; Departmental enquiry was conducted and ultimately Disciplinary Authority dismissed the workman from service, on the basis of the proved charges; The workman/appellant herein approached the Labour Court in Reference No. 3/2010; The Labour Court having found that the dismissal of the workman is disproportionate to the proved charges, modified the punishment by imposing stoppage of four increments with cumulative effect, denying continuity of service and backwages; The award of the Labour Court is questioned by the workman/appellant herein before this court in Writ Petition No. 79199/2013.

During the pendency of the said writ petition, a memo came to be filed by the workman conceding that he will not claim backwages, despite the order of the Disciplinary Authority is non-est in the eye of law. The said memo is taken on record by the learned Single Judge while hearing the writ petition. Recording the said memo, the learned Single Judge held that the order of dismissal passed by the Disciplinary Authority is bad in the eye of law and consequently directed the management to reinstate the workman without backwages. However, the punishment of stoppage of four increments with cumulative effect, as ordered by the Labour Court was confirmed by the learned Single Judge. It is also made clear in the impugned order that the continuity of service will be extended to the workman, which was denied by the Labour Court.

Sri. Hatti, learned Advocate for the appellant drawing the attention of the court to the leave application submitted by the appellant with a medical certificate, contends that the workman was suffering from Hepatitis-B disease and consequently he could not attend the duty during the relevant period for about 158 days. It is further contended by him that, it is only because of health problem, the workman could not attend the duties.

On facts, the Labour Court has concluded that the workman was not sanctioned leave on medical grounds; The copy of the leave application was also not placed before the Labour Court. Be that as it may, the workman has no antecedents of his bad conduct in his service career and having regard to the fact that the workman was suffering from Hepatitis -B, we prefer to take lenient view in this matter by altering the punishment to ''stoppage of four increments without cumulative effect''.

As aforementioned, when the workman himself has come forward by filing a memo for forgoing of the entire backwages, despite the order of dismissal passed against him is non-est in the eye of law, in view of the judgment of the Division Bench of this Court in Writ Petition Nos. 24118-24120/2009 and Writ Appeal No. 5738/2012. It is necessary to note that, in the said judgments, this court has ruled that the order of dismissal is non-est on account of there being noncompliance of Section 33(2)(b) of the Industrial Disputes Act, 1947, in as much as the order of dismissal is passed without the approval of the Industrial Tribunal while adjudicating I.D. No. 148/2005. Therefore, the order of dismissal was non-est. Despite the same, the workman has fairly come forward to concede that his entire backwages may be withheld, since he had not worked during relevant period.

Keeping the entire facts and circumstances of the case in mind, we conclude that it would be sufficient if the order of the learned Single Judge is retained with a modification that the workman should be imposed with punishment of stoppage of four increments "without cumulative effect". The workman is not entitled for the backwages. However, he is entitled to continuity of service, as extended to him by the learned Single Judge.

With the above observations, the appeal stands disposed of.