IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2017 BEFORE:
THE HON’BLE MR.JUSTICE G.NARENDAR WRIT PETITION No.55401/2013 [L-KSRTC] BETWEEN SHYAMARAO, S/O. LATE NARASINGAPPA, AGED 49 YEARS, R/AT NO.285-B, MAHADESHWARA NAGARA, AEROHALLI CROSS, VISHWANEEDAM POST, BANGALORE-560 091. … PETITIONER (BY SRI. V.S. NAIK, ADV.) AND THE DIVISIONAL CONTROLLER, BMTC., WEST DIVISION, KENGERI, BANGALORE-560 060. ... RESPONDENT (BY SMT. H.R. RENUKA, ADV.) * * * THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 11.07.2013 AND THE AWARD DATED 09.10.2013 PASSED BY THE I ADDL. LABOUR COURT, BANGALORE, IN I.D. NO.10/2012 VIDE ANNEXURES-“D & E” RESPECTIVELY AND TO DIRECT THE RESPONDENT TO REINSTATE THE PETITIONER INTO HIS ORIGINAL POST WITH ALL CONSEQUENTIAL BENEFITS.
THIS WRIT PETITION IS COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned counsel for the petitioner and learned counsel for the respondent.
2. The petitioner/workman is before this Court, calling in question the order dated 11.07.2013, whereby the domestic enquiry conducted against him is held as fair and proper and to quash the Award dated 09.10.2013 rendered in I.D. No.10/2012, wherein the order of dismissal came to be upheld by the Labour Court, Bengaluru.
3. The undisputed facts of the case are that;
The petitioner was on duty on 09.10.2010 and he was conducting the bus belonging to the Corporation bearing No.F-2353 on the route from Depot No.31 to Kempe Gowda Bus Station. That at about 13.25 hours, the said bus came to be intercepted at stage No.4 and after checking the bus it was found that there were two passengers from whom the petitioner had collected the fare amount of Rs.4-00 each, but has not issued the tickets to them. It is further alleged that in respect of eight other passengers, the petitioner has neither collected the fare nor had issued the tickets and that one of the group of 8 passengers was apprehended and the fine amount at 10 times of the ticket value was levied and collected. Thereafter, offence memo came to be issued alleging that the First Party had failed to issue two tickets of Rs.4-00 denomination to two passengers traveling from stage 3 to stage 4 despite the fact that he had collected the requisite fare from the said passengers and also having failed to collect the fare and issue tickets to the group of 8 passengers who were traveling from stage 3 to stage 4.
The workman on receipt of the offence memo and the show-cause notice, submitted his reply. Thereafter articles of charge came to be issued and the workman submitted his reply to the said articles of charge vide Annexure-“A” to the writ petition. In the said reply, it is contended that he has indeed issued tickets to the two ladies but, the said passengers had handed it over to the children and that the tickets had been lost by the said passengers. It was further contended by him that the group of 8 passengers had got into the bus at previous signal and hence, he could not complete his job of issuance of the tickets as the bus reached 4th stage and the tickets were taken over by the checking inspectors from him.
The petitioner/workman got himself examined as W.W.1 and got marked Exs.W1 to 9. The respondent/Corporation got examined the Enquiry officer as M.W.1 and got marked Exs.M1 to 15.
The Labour Court after consideration of the material on record has been pleased to hold that the enquiry has been held in a fair and proper manner and that the non-issuance of the tickets to two passengers after collection of the fare amount stands proved and further the fact of the petitioner having not issued tickets to the group of 8 passengers has also held to be proved. The Tribunal has concluded that the said act of collection of the fare amount and non-issuance of tickets amounts to pilferage and that the act has been committed with the intention of misappropriating the same.
Hence, it was pleased to hold that the punishment imposed by the second party does not call for interference and was pleased to confirm the punishment order terminating the services of the petitioner.
4. Learned counsel for the petitioner would contend that the Enquiry Officer has relied upon the material, which were not furnished to the petitioner under the show-cause notice. He would further contend that the Labour Court got carried away by the said past history, which is recorded in the Enquiry Report and taking into account the current misdemeanor, was pleased to pass the impugned order upholding the termination. He would contend that the Labour Court failed to appreciate the fact that the said material was never put to the petitioner during the course of the enquiry. He would further contend that it was specifically contended in the claim statement regarding the said past history at paragraph 8, which reads as follows:
“It is submitted that looking into the past misconduct of the first party it has been alleged in the order of dismissal that the first party has involved in 53 similar default cases and was punished by imposing minor punishments on different occasion on the first party, these 53 default cases are concerned, the first party has disputed the same, however the said punishments were imposed summarily without holding any enquiry and also without there being any opportunity what so ever to the first party, that apart there are conductors and drivers who were working in the second party corporation, though they have involved in more than 200 serious default cases, but there is no yardstick as such, even the past misconduct has been taken into consideration by the second party corporation. Hence, the punishment imposed by the second party is discriminatory in nature, consequently the order of dismissal passed by the second party is illegal, arbitrary and unsustainable on the eye of law and liable to set aside.”
He would further contend that the impugned order of the Labour Court suffers from non-application of mind. He would contend that the Labour Court has failed to appreciate the contention of the petitioner that the order of termination is disproportionate to the gravity of misconduct and he had specifically appealed to the Labour Court to exercise the extraordinary jurisdiction vested in it under the provisions of Section 11-A of the Industrial Disputes Act and to grant an appropriate relief. He would further contend that there are 8 punishments, which are prescribed under the regulation and the Labour Court has not assigned any reason for upholding the present punishment.
5. Per contra, learned counsel for the Corporation would submit that the Labour Court has rightly rejected the reference and would draw the attention of this Court to the impugned Award and submit that the reasons assigned in para 13 refers to the reasons for disallowing issue No.3. She would also rely on the ruling of the Hon’ble Apex Court rendered in the case of U.P. State Road Transport Corporation and Another Vs. Gopal Shukla and another, rendered in Civil appeal No.2038/2012 disposed of on 01.09.2015. She would draw the attention of this Court to the principle enunciated by the Hon’ble Apex Court in paragraph No.14. She would further draw the attention of this Court to paragraph 7 and submit that the facts and circumstances of the case on hand are in pari materia and hence, the observation of the Hon’ble Apex Court is binding.
She would also rely on another ruling of the Hon’ble Apex Court rendered by a Larger Bench, reported in 2002-I- LLJ-234 in the case of Regional Manager, R.S.R.T.C. Vs. Ghanshyam Sharma; wherein at paragraph 5 the Hon’ble Apex Court has held that though under Section 11-A of the Act, the Labour Court has jurisdiction and power to interfere with the quantum of punishment, however, the discretion has to be exercised judiciously. Hence, she would contend that the refusal of the Labour Court to exercise the jurisdiction vested in it, is proper, and does not call for any interference at the hands of this Court.
6. Learned counsel for the petitioner placed reliance on the ruling rendered by the Division Bench of this Court in W.A. No.301/2009; wherein this Court relying on a ruling of the Hon’ble Apex Court reported in AIR 1973 SC 1227 in the case of The Workmen of M/s. Firestone Tyre & Rubber Co. of India P.Ltd., V. The Management & others; was pleased to hold that non-exercise of jurisdiction under the provisions of Section 11-A of the Act by the Labour Court vitiates the findings and hence, it was pleased to direct remission of the case to the Labour Court for consideration. In the case on hand, it is not in dispute that the Enquiry Officer has relied upon the past history to arrive at the conclusion that the workman does not deserve to be continued in the employment and has consequently imposed the punishment of termination. It is not in dispute that it is the very Enquiry Officer, who has also been examined as M.W.1. It is the specific contention that the past history was never put to the workman during the course of the enquiry. It has also been specifically contended before the Labour Court that no enquiry was conducted in any of the cases and though the allegations were disputed, no opportunity was given to the workman and that the said allegations were closed by imposing minor punishment and warnings and hence, reliance on the same is contrary to the settled principles of law. It is not known as to whether the said past history was part of the allegation and the petitioner was put on notice by way of show-cause notice. The said show-cause notice is also not a part of the records. It is also seen that in the enquiry, no officer has been examined with regard to the correctness or otherwise of the past history upon which the Enquiry Officer has relied upon. Hence, the contention on behalf of the petitioner that the Award of the Labour Court upholding the punishment is influenced by the allegations pertaining to the past history cannot be brushed aside lightly. In fact, it has been specifically contended by the petitioner before the Labour Court that in over 200 instances, involving offences of similar nature, the Corporation has imposed lesser punishment. It is also contended that the plea to be treated in parity has also not been examined and considered by the Labour Court.
Nextly, it is contended that the Labour Court has failed to answer issue No.3 and has failed to ascribe any reasoning for holding issue No.3 against the petitioner is also not without any substance. It is seen that the petitioner had specifically by way of para No.11 of the claim petition, prayed to the Labour Court to exercise the powers vested in it under the provisions of Section 11-A of the Act. Pursuant to the said plea, the Labour Court has also framed issue No.3, which reads as follows:
Whether the first party is entitled to the relief, which he has claimed?
While answering issue No.3, the Labour Court has answered in a cryptic manner as follows:
“In view of my findings on the above issue No.1, I proceed to pass the following:”
It is seen that issue No.1 was framed to enquire into the aspect of the fairness of the enquiry conducted and it reads as follows:
Whether the domestic enquiry conducted by the second party against the first party is fair and proper?
7. By no stretch of imagination can the reasoning in respect of issue No.1 can be held to be an answer to issue No.3 framed by the Labour Court. Hence, in view of the above, this Court is of the considered opinion that in view of non-furnishing of reasoning for refusing to exercise the powers vested with the Labour Court under the provisions of Section 11-A of the Act, vitiates the impugned Award by the Labour Court. That apart, the reliance on the past history without putting the workman on notice with regard to the same also vitiates the finding by the Enquiry Officer.
In view of the above, this Court is of the considered opinion that the impugned Award by the Labour Court requires to be set aside and the matter be remitted back to the Labour Court for disposal afresh. Accordingly, the impugned Award of the Labour Court, rendered in I.D. No.10/2012 dated 09.10.2013 is set aside. The case is remitted back to the Labour Court, Bengaluru, for re- adjudication after affording an opportunity to the parties.
The writ petition stands disposed of.
Keeping in view the long pendency of the case, the Labour Court is directed to endeavour to hear and dispose of the reference within a period of six months from today.
Sd/- JUDGE Ksm*