@JUDGMENTTAG-ORDER
D.V. Shylendra Kumar, J.@mdashWrit petition by an employee who was working as passenger tyre operator in the respondent-management and whose services had come to be terminated as per order dated 16-11-1989 [copy at Annexure-G to the writ petition] by the management for the reason that he had remained unauthorizedly absent for a period of 30 days prior to that. In this regard, the petitioner-workman sought to raise a dispute and it appears ultimately the government had referred the matter in Reference No. 160 of 1999 to labour court, Mysore. The petitioner-workman had placed certain materials before the labour court, particularly to claim that during the relevant period when he was absent from work, he was suffering from ailment and in support of the same, produced two medical certificates issued by medical officer at Mysore and another medical certificate issued by a doctor working in ESI hospital at Mandya.
2. The management resisted the reference and also led evidence. The labour court initially found the domestic enquiry as fair and proper and having framed the following issues:
1. Whether the first party is a workman within the meaning of I.D. Act, 1947?
2. Whether the undertaking wherein the first party was working is an industry?
3. Whether the first party is entitled to any relief U/sec. 19 of Central Administrative Tribunal Act (or) Under Article 226 of Constitution of India?
4. Whether the 2nd party is justified in removing the First Party from service w.e.f. September, 1989?
5. If not, to what relief the First Party is entitled?
in the reference and answered the issues against the petitioner-workman, holding that the petitioner-workman had not produced any material before the labour court even for interference in the exercise of Section 11A of the Industrial Disputes Act, 1947 [for short, the Act]; that no mitigating circumstance had been pointed by the petitioner-workman and ultimately the reference was rejected as per the impugned award dated 20-9-2011 [copy at Annexure-J to the writ petition].
3. Appearing on behalf of the petitioner-workman, Sri S.B. Mukkannappa, learned counsel, has, apart from pointing out the demerits of the award, in particular, points out that the discretion vested in the labour court for exercising power u/s 11A of the Act has not been properly exercised nor has it been exercised in a sound manner and even without appreciating the material on record, the labour court has declined to exercise the power u/s 11A of the Act. Submission is that this court can also exercise the very power and can interfere with the award of the labour court in so far as it relates to the quantum of punishment is concerned.
4. On the other hand, Sri S.N. Murthy, learned senior counsel appearing for the respondent-management points out that the reference itself was made to the labour court 10 years after the dismissal; that the so-called material to support the version of the petitioner-workman that he was suffering from certain illness or disease which had prevented him to attend the work during the relevant period was placed before the court more than 18 years after the event; that at such point of time evidence was adduced for the first time and there is no question of labour court acting on such material; that what is important is that such materials had not been placed before the management or claimed before the management.
5. While it is true that in a petition under Article 227 of the Constitution of India, this court even while exercising supervisory jurisdiction, can correct a patent error of law and where jurisdiction was warranted to be exercised has not been exercised, the very enabling provision can be invoked by this court to pass appropriate order. It is also submitted by the learned counsel for respondent-management that even if the petitioner-workman is reinstated at this point of time, no purpose would be served as he has only two years of service left at this stage and therefore there is no need for this court to exercise such discretion for the first time more than 23 years after the dismissal.
6. Delay definitely stares at the face of the petitioner and the fact that the petitioner-workman had past history of unauthorized absence earlier also, it has come to the notice of the management and as pointed out by Sri Murthy, learned senior counsel for respondent, the workman had remained absent on earlier occasions also, which makes this court reluctant to exercise power u/s 11A of the Act in favour of the workman at this stage on the premise that punishment is disproportionate to the gravity of the misconduct. A habitual absentee definitely causes disruption of work and no premium can be placed.
7. Be that as it may, I do not find any need or necessity to interfere with the award of the labour court, including declining to exercise the power u/s 11A of the Act in favour of the petitioner-workman, only as a measure of compensation for the costs incurred by the workman before the labour court and this court, a sum of Rs. 25,000/- [Rupees twenty-five thousand only] is awarded by way of cost in favour of the petitioner-workman, to be paid by the respondent-management within four weeks from today.
8. Sri S.N. Murthy, learned senior counsel appearing for respondent-management has very gracefully submitted that the management would abide by the award of the cost in favour of the petitioner-workman. Except for award of above costs, no relief can be granted. Writ petition dismissed.
