Kar HC | Unauthorized absence from service for a long period of time not a minor misconduct and is a ground for dismissal

Karnataka High Court: The Division Bench of L. Narayana Swamy, ACJ and P.S. Dinesh Kumar, J., allowed a writ appeal filed against order directing reinstatement of a driver in service, who had been not reported to duty for almost two years.

Respondent herein, who was working as a driver with Bengaluru Metropolitan Transport Corporation (BMTC), was suspended from service but suspension was revoked after sometime. Despite revocation of suspension, respondent did not report to duty and was issued a call notice. However, he still remained absent. Disciplinary authority framed and sent imputation of charges but the same was not reverted to by the respondent. A domestic enquiry was conducted after serving notice to respondent. Since he did not appear even in these proceedings, he was proceeded against ex-parte and dismissed from service. Respondent raised a dispute before the conciliation officer but upon failure of conciliation proceedings, he approached the Labour Court which dismissed the reference. In a writ petition filed before the learned Single Judge, the order of respondent’s dismissal was set aside. Aggrieved thereby, the instant petition was filed.

The Court observed that a High Court while exercising power under Article 227 of the Constitution of India, shall not ordinarily correct mere error of facts or law unless the error is shown to be apparent on the face of the record or is based on clear ignorance or utter disregard to the provisions of law. Further, a High Court shall not convert itself into a Court of appeal and indulge in re-appreciation of evidence unless great injustice is demonstrated.

It was noted that the petitioner chose not to report to duty even after two years of revocation of suspension. Relying on the judgment in North-Eastern Karnataka Road Transport Corporation v. Ashappa, (2006) 5 SCC 137 where it was held that remaining absent for a long time cannot be considered minor misconduct; it was held that the impugned order was not sustainable in law.[BMTC v. S. Ganesh, 2019 SCC OnLine Kar 243, Order dated 01-02-2019]

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