#disciplinaryauthority

[seemabhatnagar]

Industrial Tribunal can't interfere with the Order of the Disciplinary Authority when it finds Order Justified

In the matter in question Industrial Tribunal affirmed in the award passed by it that the order passed by the Disciplinary Authority (minor punishment) is justified, however, it modified the minor punishment.

The managerial decision imposing a minor penalty is unalterable and the same cannot be modified while exercising power under Section 11A of the Industrial Disputes Act.

Bengaluru Metropolitan Transport Corporation v. H B Siddarajiah

WP 58780/2014 allowed on 05.10.2023 & Writ of Certiorari was issued by Hon'ble Madam Justice Jyoti MuliMani J.

Before High Court of Karnataka at Bengaluru

Background

Passengers of the bus No.305 N/1 on 11.06.06 informed the Depot Manager that the respondent/conductor had consumed alcohol and was misbehaving with the passengers in the bus.

Respondent/conductor was subjected to a medical examination, and it was found that he had consumed alcohol.

The Depot Manager submitted a report in this regard.

Based on the report, Respondent was issued memo of charge.

Respondent did not reply to the Charge.

The disciplinary authority, however, appointed an inquiry officer to conduct an inquiry in respect of the charges leveled against the workman.

The inquiry officer after conducting a detailed inquiry, submitted his findings holding that the charges are proved.

The disciplinary authority accepted the findings of the inquiry officer and imposed an order of punishment on 30.02/04.2008, thereby reducing his basic pay to the minimum.

The order was challenged before the Industrial Tribunal Bengaluru, the Industrial Tribunal held that the domestic enquiry conducted by the Corporation was fair and proper. The Tribunal vide Award dated 03.01.2014 modified the order of punishment.

Petitioner Bengaluru Metropolitan Transport Corporation aggrieved by the modification challenged the same before the High Court by means of Writ of Certiorari.

Issue before the Court

Whether the Award of the Tribunal requires interference?

Observation of the High Court

Bus Conductor is a public transport employee who is responsible for ensuring the safe and efficient operation of a bus service. He is responsible for collecting fares and issuing tickets, ensuring all passengers have valid tickets, dealing with customer queries, and helping passengers on and off the bus.

This is an interesting case of Tipsy Man who made travel a nightmarish experience for passengers. The charge was serious; while on duty, he was drunk and misbehaved with the passengers.

A disciplinary enquiry for misconduct was conducted, and misconduct was established in the enquiry.

He Disciplinary Authority imposed minor penalty of reduction of pay to the minimum.

The Tribunal affirmed the misconduct. However, in an exercise under Section 11A of the I.D Act, it chose to modify the penalty.

The Tribunal erred in modifying the imposition of a minor penalty. This modification is without jurisdiction in as much as the Tribunal has no power to modify the minor penalty. Under Section 11A* of the Industrial Dispute Act.

Section 11A* of the I D Act provides “Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.”

Order

Order passed by the Industrial Tribunal Bangalore was set aside and the order of the Disciplinary Authority was confirmed.

Seema Bhatnagar

[seemabhatnagar]

Punishment must be proportionate to the misconduct proved

Union of India & Others v. Yashpal

WP 15295/2023 before Hon'ble Allahabad High Court

Gravity of misconduct, past conduct, nature of duties, position in organization, previous penalty, if any and requirement of discipline to be enforced are relevant to be considered by the disciplinary authority before awarding the punishment to the employee.

 Case of the Petitioner-Union of India

1.     This is a case where a khalasi of the Railway was dismissed from service on the ground of being habitual absentee.

2.     He was dismissed by the Disciplinary Authority on 29.05.2023 as he was absent without any intimation for about 10 months.

3.     He was asked by the Department to Report to the Railway Hospital but he failed to comply with the Directions and continued to remain on unexplained leave.

4.     Hence, it was necessary to award major punishment of dismissal from service for continued and repeated acts of remaining absent without leave.

 Case of the Respondent-Employee

1.     He joined service on 22.10.1999.

2.     He was absent from work for nine months from 09.05.2005 to 18.2.2006.

3.     He joined on 29.06.2006 and he remained on duty without any further complaint of absenteeism. He was not unwell which had prevented him from performing his duties. Respondent had produced medical certificate in support of his claim of illness, there was prima facie evidence in support of the explanation furnished by the Employee-Respondent.

 Central Administrative Tribunal

1.     Looking into the facts and evidence in support of the submission of the Employee-Respondent, the Central Administrative Tribunal had set aside the punishment ordered and remitted the matter back to the disciplinary authority to pass a fresh order which is proportionate to the misconduct found proven.

 Argument of the Counsel of the Petitioner-Union of India

1.     The Tribunal has completely erred in setting aside the punishment, and in remitting the matter back to the Disciplinary authority.

 Argument on behalf of the Petitioner

1.     No accentuating fact or circumstances was found proven in the enquiry report which may have warranted the wholly disproportionate punishment of dismissal from service. The fact of the respondent that he remained ill was not found to be false.

2.     These mitigating circumstances haven’t been considered by the disciplinary authority. Thus, wholly excessive punishment of dismissal from service was awarded to the respondent after he had joined back in service and had continued to work without break.

Observation of the Hon’ble Court

 1.     Tribunal has not committed any error in setting aside the orders of punishment, appeal and revision and remitting the matter to the disciplinary authority to consider the matter afresh.

 2.     Gravity of misconduct, past conduct, nature of duties, position in organisation, previous penalty, if any and requirement of discipline to be enforced are relevant to be considered by the disciplinary authority before the punishment was awarded to the respondent-employee.

 3.     It is undisputed that the respondent was appointed as a Khalsi on 22.10.1999. In the context of the present proceedings, he was found absent from work for nine months from 9.5.2005 to 18.2.2006. Thereafter, there was a brief break up to 28.06.2006 but there is no dispute to the fact that the respondent had worked continuously from 29.06.2006 onwards.

 4.     In the context of absence from duty without leave, all factors should have been examined by the disciplinary authority before award of major punishment of dismissal.

 5.     The Tribunal has protected the interest of the present petitioner by taking note of all the relevant factor and by observing that the disciplinary authority may observe the past record of the respondent.

 Order of the court

The writ petition was dismissed by Division Bench of the Allahabad High Court comprising Hon’ble Mr. Justice Saumitra Dayal Singh J & on’ble Mr. Justice Arun Kumar Singh Deshwal J on 20.09.2023.

 Seema Bhatnagar