IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE P.B.BAJANTHRI WRIT PETITION No.18303/2015 (L-KSRTC) BETWEEN:
H.N. RAJU S/O NARAHARIYA ACHARYA AGED ABOUT 60 YEARS R/AT. SRIRAM NAGARA NEAR R.T.O. OFFICE HASSAN (BY SRI L. SHEKAR, ADVOCATE) AND:
THE DIVISIONAL CONTROLLER K.S.R.T.C.
HASSAN DIVISION HASSAN - 575 201 ... PETITIONER ... RESPONDENT (BY SRI H.R. RENUKA, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED AWARD DTD. 27.07.2011 PASSED BY THE LEARNED PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, MYSORE IN REF.No.53/2004 VIDE ANNEXURE-A AND CONSEQUENTLY ALL THE REFERENCE AS PRAYED FOR, BY ALLOWING THIS WRIT PETITION.
WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING :
O R D E R In the instant petition, petitioner has assailed the award passed by the Industrial Tribunal in Reference No. 53/2004 dated 27.07.2011.
2. Petitioner was a driver with the respondent – management. When he was driving vehicle bearing registration No. KA-13-F-507 on 23.10.1999 between Mysore and Hassan, near Ilaval, the vehicle dashed against a tree. Consequently, vehicle moved towards a ditch and stopped and the front portion of the vehicle got damaged. Four to five passengers and driver of the vehicle got injured. Arising of this accident, management proceeded to initiate disciplinary proceedings against the petitioner – driver by framing Article of Charge on 21.01.2000 (Annexure `B’). Petitioner had submitted his reply on 24.01.2000 denying the alleged charge to the extent that accident has not taken place due to negligence, but it is due to technical defect in the steering of the bus. Dissatisfied with the petitioner’s reply, management proceeded to hold an inquiry by appointing Enquiry Officer. Enquiry Officer held inquiry and submitted his report holding that the charge levelled against the petitioner was proved. Such a report was submitted to the Disciplinary Authority on 05.12.2001. After receipt of the Enquiry Officer’s report, Disciplinary Authority completed the formalities of issuance of show cause notice and proceeded to impose the penalty of reducing two increments from the basic pay of the petitioner permanently and recovered one month salary on ten instalments vide order dated 02.01.2002 and further ordered for recovery of cost to the respondent – management due to accident. Feeling aggrieved by the order of penalty, petitioner raised an Industrial Dispute. The Tribunal has come to the conclusion that the domestic inquiry held against the petitioner was not in order. Consequently, respondent – management should have permitted to lead evidence. The management had led evidence. The Tribunal after considering the records proceeded to reject the Reference on 27.07.2011. Thus, the present petition.
3. Learned counsel for the petitioner submitted that accident took place due to mechanical defect in the steering, whereby the nuts and bolts of the connected rod to the steering was dismantled and not due to the negligence of the petitioner. Inspection Officer, one Sri. Swamy Gowda has come to the conclusion that damage of the steering and its rod and dropping of nuts and bolts is due to the accident. The petitioner has driven in a rash and negligent manner on an unconditioned road. Therefore, there is negligence on the part of the petitioner. In this regard there is no evidence adduced by the management. The management is required to adduce evidence with reference to the author of the Inspection Report of Swamy Gowda. Before the Tribunal, incumbent Sri. Ramabhadraiah was examined with reference to the available records. Further, the non-examination of Sri. Swamy Gowda before the Tribunal has a serious consequence. It was further contended that respondent – Management was required to lead fresh evidence in terms of para 12 of the petition, wherein the petitioner has cited a decision of the Supreme Court. Further, it was contended that Ex. M-3 is not an authenticated document. Therefore, Tribunal has erred in rejecting the Reference on the aforesaid lacunae.
4. Per contra, learned counsel for the respondent submitted that, in the present petition, petitioner has questioned the award dated 27.07.2011, whereas in the Reference there are two penalty orders dated 02.01.2002 and 08.02.1996. Para 17 of the award in respect of penalty order dated 08.02.1996 has been turned down by assigning reasons. The reasons are sufficient not to interfere with the final order dated 08.02.1996. In so far as penalty order dated 02.01.2002 is concerned, learned counsel for the petitioner submitted that there were two reports one given by the Inspecting officer – Swamy Gowda and another mechanical report dated 23.10.1999 of the Divisional Controller, having regard to the evidence led before the Tribunal to the extent that there is negligence on the part of the petitioner. Hence, no interference is called for.
5. Heard the learned counsel for the parties.
6. The Tribunal framed the following issues :
1. “PÉÊUÁjPÁ «ªÁzÀUÀ¼À C¢ü¤AiÀĪÀÄ 1947 gÀ°è ªÁåSÁ夹zÀAvÉ CfðzÁgÀgÀÄ PÁ«ÄðPÀgÉÃ?
2. CfðzÁgÀ£ÀÄ PÉ®¸À ªÀiÁqÀÄwÛzÀÝ/PÉ®¸À ªÀiÁqÀÄwÛgÀĪÀ£ÉAzÀÄ C¥Á¢¸À¯ÁVgÀĪÀ ªÀUÀð PÉÊUÁjPÁ ¸ÁÜ¥À£É CxÀªÁ ªÀÄAqÀ½ CxÀªÁ GzÀåªÀĪÀÅ PÉÊUÁjPÉAiÉÄÃ?
3. DqÀ½vÀ £ÁåAiÀÄ ªÀÄAqÀ½ C¢ü¤AiÀĪÀÄzÀ ¥ÀæPÀgÀt 19 gÀAvÉ CxÀªÁ ¸ÀA«zsÁ£ÀzÀ 226£Éà C£ÀÄZÉÒÃzÀzÀ CrAiÀÄ°è CfðzÁgÀ£ÀÄ ¸ÀA«zsÁ£ÁvÀäPÀ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀð£É CxÀªÁ E®èªÉÃ?
4. DqÀ½vÀ £ÁåAiÀÄ ªÀÄAqÀ½ C¢ü¤AiÀĪÀÄzÀ ¥ÀæPÀgÀt 19 gÀAvÉ CxÀªÁ ¸ÀA«zsÁ£ÀzÀ 226£Éà C£ÀÄZÉÒÃzÀzÀ CrAiÀÄ°è CfðzÁgÀ£ÀÄ ¸ÀA«zsÁ£ÁvÀäPÀ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀð£É CxÀªÁ E®èªÉÃ? «¨sÁVÃAiÀÄ ¤AiÀÄAvÀæuÁ¢üPÁjUÀ¼ÀÄ, PÉJ¸ïDgïn¹, ºÁ¸À£À, EªÀgÀÄ vÀªÀÄä PÁ«ÄðPÀgÁzÀ ²æà ºÉZï. J£ï. gÁdÄ ¤ªÁðºÀPÀ ¨ÁåqïÓ ¸ÀA:1235 ºÁ¸À£À WÀlPÀ EªÀgÀ ªÉÃvÀ£ÀzÀ°è 1. DzÉñÀ ¸ÀA:PÉJ¸ïn:ºÉZïJ¸ïJ£ï:rM:nDgï:J¹rn:3050:01:
¢:02.01.2002 gÀ°è 2 ªÉÃvÀ£À §rÛUÀ¼À£ÀÄß ±Á±ÀévÀªÁV PÀrvÀUÉƽ¹gÀĪÀÅzÀÄ ºÁUÀÆ MAzÀÄ wAUÀ¼À ªÉÃvÀ£ÀªÀ£ÀÄß PÀrvÀUÉƽ¹gÀĪÀÅzÀÄ.
2. DzÉñÀ ¸ÀA:PÉJ¸ïn:ºÉZïJ¸ïJ£ï:rJA:ºÉZïJ¸ïJ£ï:rJ¥sïJ ¯ï:1031:96 ¢:08.02.1996 gÀ°è 1 ªÉÃvÀ£À §rÛAiÀÄ£ÀÄß MAzÀÄ ªÀµÀðzÀ CªÀ¢üUÉ vÀqÉ»r¢gÀĪÀÅzÀÄ.
- £ÁåAiÀĸÀªÀÄävÀªÉÃ?
5. E®èªÁzÀ°è PÁ«ÄðPÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀPÉÌ CºÀðgÀÄ?”
7. Undisputed facts are that, petitioner while he was on duty on 23.10.1999, driving vehicle bearing No. KA-13- F-507 between Mysore and Hassan, near Ilaval, on the left side of the road, vehicle met with an accident i.e., dashed against a tree and thereafter, it was halted in a ditch, whereby damage has been caused to the vehicle, so also petitioner and four to five passengers were injured. In this regard, two reports have been prepared, one by Sri. Swamy Gowda and another by the Divisional Controller (Mechanical). The Enquiring Authority as well as Disciplinary Authority have come to the conclusion that there is negligence on the part of the petitioner in respect of the accident occurred on 23.10.1999. Crucial documents in order to establish whether there is negligence on the part of the petitioner are reports of Swamy Gowda and Divisional Controller (Mechanical). Divisional Controller was not examined in the domestic enquiry or before the Tribunal, whereas, Swamy Gowda was examined in the domestic enquiry and he has not been examined before the Tribunal. In the absence of examination and marking documents of mechanical report of the Divisional Controller, there is a lacuna of legal issue so as to vitiate the enquiry proceedings. The Supreme Court in the case of S.C. Girotra vs. UCO Bank and others reported in 1995 Supp(3) SCC 212 held that if a document is required to be examined in a domestic enquiry, author of the document has to be examined and it is mandatory. Extract of the judgment reads as under :
“I3. Admittedly, the disciplinary authority while making the order of dismissal stated as under :
“The presenting officer has submitted 28 exhibits, most of which are in the form of certificates of Shri Rajinder Paul and B.B.Bhatia, Officer and the then Assistant Manager of the branch, while one document (PEX-26) is in the form of inspection/investigation report of Shri V.P.Jindal and Shri J.R. Sharma. The certificates and inspection-cum-investigation report are most comprehensive documents.
Inspection-cum-Investigation report has been prepared by two senior officers of the then Division Office, Punjab Division, Chandigarh, after their painstaking efforts of about two months. This has been substantiated by various certificates of the two officers of the branch.
All the four officers appeared before the Enquiry Officer and testified to their authorship of the documents. Their certificates/Inspection- cum-Investigation Report comprehensively cover all the allegations/charges made/leveled in the charge-sheet. They have also been supported by other documents.”
From the above extract it is clear that the report on which reliance was placed by the disciplinary authority was a comprehensive document in which conclusions were reached against the appellant on the basis of materials including the books and records of the bank as well as some certificates issued by officers of the bank which constituted evidence in support of the charges leveled against the appellant. It is also clear that no opportunity was given to the appellant to cross-examine either the makers of that report, Mr. V.P. Jindal and Mr.
J.R. Sharma or the officers who had granted such certificates which formed evidence to prove the charges which led to the order of dismissal passed by the disciplinary authority, even though those persons were examined for the purpose of proving the documents relating to them. In our opinion, the grievance made by the appellant that refusal of permission to cross-examine these witnesses was denial of reasonable opportunity of defence to the appellant, is justified.”
8. The respondent has not addressed in the domestic enquiry as well as before the Tribunal to the extent that dismantling of nuts and bolts cutting the steering of the bus is before the accident or after the accident. In the report it is only stated that it is after accident, while assigning the reasons that road condition was not good and petitioner has driven in a rash and negligent manner. On this issue, no evidence has been adduced by the respondent – management.
9. In view of these facts and circumstances, writ petition is allowed in part only to the extent of quashing of penalty order dated 02.01.2002. Award dated 27.07.2011 is set aside.
Respondent is hereby directed to settle the monetary benefits of the petitioner within a period of three months from the date of receipt of this order.
Sd/- JUDGE Mgn/-