IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY, 2019 BEFORE THE HON' BLE MR.JUSTICE R DEVDAS WRIT PETITION NO.12118/2015 (L-KSRTC) BETWEEN BOMMEGOWDA S/O NINGEGOWDA AGED ABOUT 54 YEARS DRIVER, TOKEN NO.8031 K.S.R.T.C HASSAN DEPOT HASSAN (BY SRI SHEKAR L, ADVOCATE) AND THE DIVISIONAL CONTROLLER KSRTC HASSAN DIVISION HASSAN-577501 (BY SRI B L SANJEEV, ADVOCATE) ... PETITIONER ... RESPONDENT THIS WRIT PETITION IS FILED PRAYING UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED AWARD DT.28.11.2013 PASSED BY THE LEARNED PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, MYSORE IN REF. NO.133/2007, VIDE ANNX-A AND CONSEQUENTLY ALLOW THE REFERENCE AS PRAYED FOR BY ALLOWING THIS WRIT PETITION.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R.DEVDAS J., (ORAL):
Though the matter is coming up for preliminary hearing in ‘B’ Group, with the consent of the learned counsels, the matter is heard and disposed of finally.
2. The petitioner is working as a Driver in the establishment of the respondent-Corporation. It is an admitted fact that on 31.12.2003 when the petitioner was driving a bus belonging to the Corporation, the same met with an accident which caused damage to the vehicle belonging to the respondent-Corporation. On an allegation of causing the accident, the respondent issued articles of charge dated 28.01.2004. The petitioner denied the allegation of misconduct. The respondent after conducting an enquiry imposed a punishment of reduction of three incremental stages of the petitioner from the basic pay with cumulative effect and ordered for recovery of one month’s salary by way of ten monthly instalments towards damages and costs.
3. The petitioner raised an industrial dispute before the Industrial Tribunal at Mysore. The same was registered as reference No.133/2007. On 23.09.2010 the Presiding Officer of the Tribunal framed a preliminary issue as to whether the second party (the respondent herein) proves that the domestic enquiry held against the first party is just, fair and proper? Thereafter, by order dated 06.11.2012, the Presiding Officer of the Tribunal held that the domestic enquiry conducted against the first party is not fair, proper and valid and thus answered the preliminary issue in the negative.
4. Thereafter, the Management was called upon to produce its evidence on merits. The Management has led evidence and got marked 13 documents as Exs.M1 to M13 on its behalf. While the petitioner herein got himself examined as W.W.1, but he did not choose to produce any documentary evidence on his behalf. The respondent herein examined the Traffic Inspector as M.W.1.
5. The Tribunal seems to have relied heavily on a judgment of this Court in the case of the Management of North-West Karnataka Road Transport Corporation Vs. B.R.Guduganatti reported in ILR 2005 KAR 4984, wherein it was held that in a domestic enquiry, where Charge of misconduct alleged against a driver is rash and negligent driving, resulting in an accident, what the employer/management has to establish is the accident. Once the accident is established, then the burden of proving that the said accident is not on account of rash and negligent driving on the part of the delinquent workman/driver is on him. If he sets up a defence and explains under what circumstances, the accident happened, it is for him to establish the said circumstances. Only on establishing the said circumstances, it can be said that the misconduct alleged against him is not proved.
6. The Tribunal has also relied upon a statement in the examination-in-chief by way of an affidavit filed by the petitioner herein. The said sentence is extracted hereunder:
“I do swear that, on 31-12-2003, at about 12.30 Noon, manning vehicle No.KA 13 F 1171 on route No. Hassan to Bangalore, while plying the vehicle near Gowdagare Village dashed to Tractor and caused damage to the Tractor and caused to in convince to the public.”
7. On the basis of the said statement and on the strength of the documents produced by the respondent- Corporation, the Tribunal arrived at a conclusion that since the first party-petitioner herein has not disputed the factum of accident and has not led any evidence in support of his contention that the accident occurred not because of his fault, the Tribunal proceeded to conclude that no fault could be found in the enquiry conducted by the respondent- Corporation and in imposing punishment on the first party.
8. The learned Counsel for the petitioner placed reliance on a judgment of the Hon’ble Supreme Court in the case of Neeta Kaplish Vs. Presiding Officer, Labour Court and Anr. reported in 1999 I.L.L.J 275. It was a case where the domestic enquiry conducted by the Management was found to be not fair and proper and thereafter the Labour Court having given an opportunity to the Management to adduce evidence on merits to justify the dismissal, the Management refused to avail opportunity to lead evidence. The workman also did not lead evidence since the Management did not lead evidence to justify the dismissal of the workman.
9. In the case on hand, that is not the position. In this case, the Management has led evidence while the first party i.e, the petitioner herein only examined himself but did not produce any documentary evidence on his behalf.
10. Nevertheless, what is seen from the records is that the Tribunal has failed to consider the evidence on record including the rough sketch of the accident spot, which when corroborated with the report given by the Depot Manager would endorse the view of the Depot Manager, who had opined in his report dated 31.12.2003 that was prepared immediately after the accident, stating that the accident occurred due to the fault of the driver of the Tractor, who suddenly took a turn to the right without giving any signal. Moreover, the learned Counsel for the petitioner submits that the criminal proceedings initiated against the petitioner herein ended in acquittal.
11. In the light of the above, this Court is of the opinion that the matter requires reconsideration at the hands of the Tribunal while affording opportunity to both the sides to lead fresh evidence and permitting both the sides to cross-examine the witnesses on the other side. Therefore, the impugned order dated 28.11.2013 passed by the Presiding Officer, Industrial Tribunal, Mysore in Reference No.133/2007 is set aside and the matter is remanded back to the Industrial Tribunal at Mysuru for fresh consideration, in the light of the observations made above.
12. The parties herein are directed to appear before the Industrial Tribunal, Mysuru on 29th January 2019 at 11.00 a.m. Since the matter is of the year 2007, the Tribunal is requested to conclude the proceedings as expeditiously as possible and at any rate within a period of six months from 29.01.2019.
The petition is disposed of. No order as to costs.
SD/- JUDGE JT/-