THE MANAGEMENT OF M/S. BALLAL RESIDENCY v. MR. V. KUMAR

7. Heard Sri C.K. Subrahmanya, learned counsel appearing on behalf of Sri B.C. Prabhakar, learned counsel for the petitioner and Sri Raghupathi M.J., learned counsel appearing on behalf of Sri T. Narayana Swamy, learned counsel for the respondent and perused the material on record.

8. Learned counsel for the petitioner would urge the following grounds: i. That the Labour Court, having held that the quantum of unauthorized absence as indicated in the charge sheet is proved and established, however, condones the misconduct, holding that the charges framed are belated. ii. That the Labour Court lost sight of the fact that even after initiating the disciplinary action, the respondent has remained absent unauthorizedly, - 6 - consistently and a separate charge is also issued in that regard. iii. The act of misconduct on the part of the workman is willfully causing loss and inconvenience to the establishment, disregarding the instructions of the superiors and remaining unauthorizedly willingly absent from 13.11.2005 in spite of directing the workman to report to duty. iv. The unauthorized absence on the part of the workman is a serious misconduct, as respondent was working as a North-Indian Assistant in the petitioner-management which is running a hotel and which has to maintain the standards prescribed so as to maintain the fair image of the hotel and if the respondent-workman is resorting to such types of unauthorized absence, the running of the petitioner hotel would be difficult. - 7 - v. That the Labour Court has lost sight of the fact that sufficient opportunity was accorded respondent to participate in the enquiry and after completion of the enquiry, the respondent was held to be guilty of the charges leveled against him and thus, the reasoning of the Labour Court that the domestic enquiry conducted is not fair and proper is not justified.

9. Per contra, learned counsel for the respondent would justify the order passed by the Labour Court and would contend that the Enquiry Officer without following the principles of natural justice has concluded the enquiry and would contend that the order of dismissal has been rightly set aside by the Labour Court looking into the misconduct and holding that the imposition of punishment by way of dismissal is disproportionate to the misconduct.

10. Having heard the learned counsel for the parties, the point that arises for consideration is: - 8 - “Whether the Labour Court was justified in setting aside the order of dismissal and exercising the discretion under Section 11A of the ID Act in the present facts and circumstances of this case?”

11. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.

12. The charges leveled against the workman was: i. That the workman is in the habit of habitually remaining absent without leave and no amount of counseling has had any effect on him with regard to improving his attitude and is continuously absent without leave for more than ten days consecutively; ii. His absenteeism record from 2002 to 2005 is nearly 137 ½ days; iii. Additional charge is that he has remained absent from work since 27.08.2005 without leave or - 9 - permission, causing dislocation to the normal work;

13. In 2004, he was served with two warning memos to improve his attendance and punctuality and memorandum of charges were issued stating the following misconduct: a. Willfully causing loss and inconvenience to the establishment; b. Willfully disregarding the instructions of the superiors; c. Remaining absent unauthorizedly

13.11.2005 when he was required to report for duty; d. Committing acts of subversive of discipline;

14. The petitioner is in the business of hotel, wherein the management has to ensure quality service, timely response, meticulous housekeeping and a well managed catering system and the respondent-workman holding such a post is unauthorizedly absent from duty without leave or - 10 - notification, which would cause dislocation of work to the employer. The absenteeism on the part of the workman though was apologized on the earlier occasion, that he would not repeat the misconduct in the future, the respondent- workman continued his habit of absence unauthorizedly, causing inconvenience to the petitioner-management. The establishment of such a kind, more particularly when a hotel business is run and there being lots of competition and the customers have a wide choice, the management on alone cannot work to run the establishment and there has to be the assistance and cooperation of all the employees who are employed in various designations and the employee, as in the present case, who is in the habit of remaining absent from work unauthorizedly without submitting any leave, would definitely hinder the business of the petitioner establishment.

15. Respondent-workman though contended there is victimization and unfair labour practice, there is no evidence on the part of the workman to prove victimization - 11 - and unfair labour practice on the part of the management, whereas, on the other hand, the management let-in the evidence to prove that there is no victimization on the part of the management and the order of dismissal of the workman was in light of the continuous misconduct of unauthorized absence, leaving no option to the management to dismiss the workman from service. The Labour Court, though, holds that there is misconduct on the part of the respondent- workman but arrives at a conclusion, that it resulted in negligible loss to the management and the misconduct of the workman for unauthorized absence on several occasions has been taken as trivial acts by the Labour Court, which this Court is of the opinion is unsustainable.

16. In the normal circumstances, in the event, the workman would have mend his ways and would have reported to duty, this Court could have held that the order of dismissal against the workman for some period of unauthorized absence would be condoned, however, in the instant case, looking into the absence on part of the - 12 - workman from 2002 to 2005 and also before the Disciplinary Authority, this Court is of the considered opinion that the discretion exercised by the Labour Court under Section 11A of the ID Act is unwarranted, having held that the charges are proved.

17. It is brought to the notice of this Court by way of a memo by the petitioner that, pursuant to the interim order dated 18.02.2013 passed by this Court, the respondent had reported for work on 28.11.2012, however, he remained continuously absent from 28.02.2015 till date and the show- cause notice issued to the respondent-workman has been returned unserved.

18. The said memo is taken on record.

19. The material on record would indicate that the petitioner has remained willfully absent from work unauthorizedly without any leave or intimation for 137 ½ days during the period from 2002 to August, 2005 and the absence on part of the workman would amount to - 13 - misconduct the Disciplinary Authority impose punishment of dismissal, the imposition of punishment of dismissal is not shockingly disproportionate to the proved misconduct and the Labour Court was not justified in setting aside the order of dismissal warranting interference by this Court and the point framed for consideration is answered accordingly.

20. For the foregoing reasons, this Court pass the following: ORDER i. Writ petition is hereby allowed. ii. The impugned order of the Labour Court is hereby set aside. MBM SD/- JUDGE