IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 27TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL NO.3408 OF 2016 (L-KSRTC) C/W WRIT APPEAL NO.1333 OF 2015 (L-KSRTC) WRIT APPEAL NO.3408 OF 2016 BETWEEN:
SRI V MUNIYAPPA SON OF SRI.B.VENKATASHAMY AGED ABOUT 44 YEARS CONDUCTOR, KSRTC RESIDING AT CHIRUVANAHALLI NAMBIHALLI POST SRINIVASAPURA TALUK KOLAR-563101.
(BY SRI.V S NAIK, ADVOCATE) AND:
THE DIVISIONAL CONTROLLER KSRTC, BANGALORE CENTRAL DIVISION ... APPELLANT K.H.ROAD, SHANTINAGAR BENGALURU-560027.
(BY SMT.H R RENUKA, ADVOCATE) ... RESPONDENT THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE REVIEW PETITION No.75/2014 DATED 20/03/2015.
WRIT APPEAL NO.1333 OF 2015 BETWEEN:
SRI V MUNIYAPPA SON OF SRI.B.VENKATASHAMY AGED ABOUT 44 YEARS CONDUCTOR, KSRTC RESIDING AT CHIRUVANAHALLI NAMBIHALLI POST SRINIVASAPURA TALUK KOLAR-563101.
(BY SRI.V S NAIK, ADVOCATE) AND:
THE DIVISIONAL CONTROLLER KSRTC, BANGALORE CENTRAL DIVISION K.H.ROAD, SHANTINAGAR BENGALURU-560027.
(BY SMT.H R RENUKA, ADVOCATE) ... APPELLANT ... RESPONDENT THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No.13596/2010 DATED 05/01/2011.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 20.03.2015 in Review Petition No.75 of 2014 passed by the learned Single Judge by which the review petition was dismissed, the petitioner has preferred W.A.No.3408 of 2016. Aggrieved by the order dated 05.01.2011 passed in W.P.No.13596 of 2010 by the learned Single Judge dismissing the writ petition the petitioner has preferred W.A.No.1333 of 2015.
2. There is delay of 1543 days in filing W.A.No.1333 of 2015 and 492 days delay in filing W.A.No.3408 of 2016.
3. We have heard the learned counsel for the appellant both on delay as well as on merit.
4. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India, seeking to set aside the judgment and award dated 23.02.2010 passed in I.D.No.66 of 2005 by the III Additional Labour Court, Bengaluru and to quash the order of dismissal dated 18.05.2005 Annexure-C passed by the Disciplinary Authority. The petitioner asserts that, he joined respondent-KSRTC as Conductor in the year 1992. It is stated that the memo dated 29.06.2004 containing as many as five charges was served on the petitioner and he was placed under suspension contemplating domestic enquiry. Subsequently it is stated that Articles of charge dated 08.07.2004 was served alleging irregularities and misconduct while he was conducting the bus bearing registration No.KA-01/F-6871. The petitioner submitted his reply dated 20.07.2004. Thereafter Enquiry Officer was appointed to enquire into the allegations. The Enquiry Officer conducted a detailed enquiry and submitted his enquiry report dated 23.03.2005. The petitioner was issued with second show cause notice along with the enquiry report, to which, the petitioner replied on 18.04.2005. On consideration of the enquiry report as well as the reply of the petitioner, the respondent passed an order of dismissal dated 18.05.2005. Aggrieved by the order of dismissal, the petitioner raised a dispute under Section 10(4-A) of the Industrial Disputes Act, before the III Additional Labour Court, Bengaluru seeking to set aside the order of dismissal.
5. The Labour Court framed three issues, among them the first issue was as to whether second party proves that the domestic enquiry held against the first party is fair and proper, which was treated as preliminary issue. The Labour Court by award dated 12.05.2008 dismissed the claim of the petitioner against which, the petitioner filed W.P.No.13936 of 2008. The said writ petition was dismissed and against which, the petitioner filed W.A.No.1372 of 2009, which came to be allowed by order dated 06.11.2009 remanding the matter to the Labour Court for re-examination. After remand, the petitioner lead further evidence. The Labour Court after hearing the parties and on appreciation of material on record passed judgment and award dated 23.02.2010 which is impugned in the writ petition. The learned Single Judge on hearing the parties to the writ petition, by detailed order dismissed the writ petition. While dismissing the writ petition, the learned Single Judge has noted that the petitioner was involved in 66 cases on earlier occasions.
6. The petitioner thereafter filed Review Petition No.75 of 2014 praying for review of the order dated 05.01.2011 passed in W.P.No.13596 of 2010 which was dismissed by order dated 20.03.2015. The petitioner aggrieved by both the orders passed in writ petition as well as review petition is before this court in these two appeals.
7. Learned counsel for the appellant submits that the order of the learned Single Judge is the result of non- appreciation of the grounds urged by the petitioner.
Further he submits that the order of dismissal was non-est for non-compliance of provisions of Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act for short).
8. Per contra, learned counsel for the respondent- Corporation submits that for the proved charge of pilferage, the appellant is rightly dismissed from service. Further it is stated that the appellant’s past history shows that he was involved in more than 37 cases of pilferage. Hence, prays for dismissal of the appeals.
9. The petitioner was conductor with the respondent- Corporation. While the petitioner was conducting the bus bearing registration No.KA-01/F-6871 on 29.06.2004, the Checking Squad of the respondent intercepted and checked the bus. It was found that there were in all 51 + 0 + 12 passengers in the bus and the petitioner had not issued tickets to certain of the passengers. Based on the said incident, the petitioner was issued with charge memo alleging the following misconducts:
(i) The first party had kept Rs.6/- denomination on the way bill upto stage No.8 and 2nd and 3rd number upto stage No.7.
(ii) Re-issued 8 tickets of Rs.6/- denomination to the passengers traveling from Vijayapura to Devenahalli.
(iii) 17 tickets of Rs.6/- denomination in an unpunch condition to 17 passengers traveling from Vijayapura to Devanahalli.
(iv) 7 tickets of Rs.6/- denomination to 7 passengers traveling from Vijayapura to Devanahalli by punching the said tickets one side.
(v) Issued 5 tickets of Rs.6/- denomination to 5 passengers with irregular punches to the passengers traveling from Vijayapura to Devanahalli.
(vi) Did not account the tickets bearing No.574973 to 574999, 585400 and 505401.
(vii) 5 tickets of Rs.15/- bearing No.999695 to 999699 neither found with the conductor nor with the passengers; and (viii) tickets of Rs.15/- denomination in between the ticket books and the said tickets were in unpunch condition and endorsement about the changes due to the passengers on the back side of the tickets.
10. Regular enquiry was conducted and the respondent- Disciplinary Authority by order dated 18.05.2005 imposed the punishment of dismissal from service for the proved misconduct of pilferage. The petitioner raised a dispute before the Labour Court. The Labour Court, on examination of the material on record passed the award dismissing the claim of the petitioner by award dated 12.05.2008. The said award was challenged in W.P.No.13936 of 2008 which came to be dismissed by order dated 30.01.2009. Against the said order, the petitioner filed W.A.No.1372 of 2009 which came to be allowed by order dated 06.11.2009, remanding the matter to the Labour Court for fresh consideration. While remanding, this Court had not disturbed the finding in respect of preliminary issue regarding fairness of the enquiry. Hence, the Labour Court on re-examination of the material on record by award dated 23.02.2010 dismissed the claim petition, against which, the instant writ petition is filed.
11. The learned Single Judge by his well reasoned order rejected the writ petition confirming the award passed by the Labour Court. The learned Single Judge by looking into the evidence on record including the statements of the passengers marked as Ex.M4 and Ex.M5, way bill Ex.M6 and seized tickets as per Ex.M7 was of the opinion that the charge leveled against the petitioner is proved. It is not in dispute that on 29.06.2004, when the petitioner was conducting the bus on the route Shidlaghatta to Bengaluru, the vehicle was intercepted by the Checking Squad and found that the petitioner had not issued tickets to certain passengers. The respondent-Corporation has examined MW1 and MW2 and marked as many as 16 documents as Ex.M1 to Ex.M16 to prove the charge against the petitioner. The respondent-Management has examined one of the members of Checking Squad Sri.B.S.Mruthyunjaya, who in his evidence has narrated the interception and checking of the bus on 29.06.2004. Through the witness, the relevant documents such as seized tickets, way bill and statements of ticket less passengers are marked, which would clearly indicate the non-issuance of proper tickets to the passengers by the petitioner. The way bill, seized tickets and statements of the passengers are all signed by the petitioner and there is no dispute with regard to those documents. It is found that the petitioner had issued tickets without punching and had not entered those ticket numbers in the way bill so as to take back those tickets from the passengers. The defense of the petitioner that pin of Rs.15 denomination bundle had come out, therefore he had kept ten tickets separately is not believed by the Labour Court on examination of material on record.
12. We have perused the award passed by the Labour Court. The Labour court has dealt with each and every contention of the petitioner and has rightly rejected the claim petition. The charge against the petitioner is pilferage of revenue. The Conductors who deal with the revenue of the Corporation are expected to maintain high degree of integrity. It is expected of a Conductor and the Corporation reposes the confidence in Conductors so as to issue tickets to the passengers and to deposit the revenue with the Corporation. But in the case on hand, the allegation of pilferage of revenue is proved by the respondent-Management. For the proved misconduct of pilferage, the Corporation has rightly imposed the punishment of dismissal. More over it has come on record that past history of the petitioner would show 37 cases of pilferage against him. In that view of the matter, the learned Single Judge has rightly dismissed the writ petition which needs no interference. The above view of ours is supported by the decision of the Hon'ble Supreme Court in (2001)2 SCC 574 in the case of KARNATAKA STATE ROAD TRANSPORT CORPORATION v/s B.S.HULLIKATTI.
Paragraphs 5 and 6 of the above decision read as follows:
“5. On the facts as found by the Labour Court and the High Court, it is evident that there was short –changing of the fare by the respondent from as many as 35 passengers. We are informed that the respondent had been in service as a Conduct for nearly 22 years. It is difficult to believe that he did not know what was the correct fare which was to be charged. Furthermore, the appellant had during the disciplinary proceedings taken into account the fact that the respondent had been found guilty on as many as 36 times on different dates. Be that as it may, the principle of res ipsa loquitur, namely the facts speak for themselves, is clearly applicable in the instant case. Charging 50 paise per ticket more from as many as 35 passengers could only be to get financial benefit, by the Conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a Conductor because such action or inaction of his is bound to result in financial loss to the appellant Corporation.
6. It is misplaced sympathy by the Labour Courts in such cases when on checking it is found that the Bus Conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower denomination knowing fully well the correct fare to be charged. It is the responsibility of the Bus Conductors to collect the correct fare from the passengers and deposit the same with the company. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare.”
13. The Hon'ble Supreme Court by following the above HULLIKATTI’s case in 2006 (5) Kar.L.J. 513 (SC) in the case of DIVISIONAL CONTROLLER, NORTH-EAST KARNATAKA ROAD TRANSPORT CORPORATION v/s H.AMARESH at paragraphs 12, 13 and 15 has held as follows:
“12. This Court in the judgment in Regional Manager, Rajasthan State Road Transport Corporation V Ghanshyam Sharma, held that the proved acts of misconduct either to a case of dishonesty or of gross negligence and bus conductors who by their actions and inactions cause financial loss to the Corporation ought not to be retained in service.
13. The judgment in Karnataka State Road Transport Corporation V. B.S.Hullikatti was also referred to and relied on by the 3-Judges Bench in the above judgment.
This Court in B.S.Hullikatti’s case, has held in para 6 as follows:
“6. It is misplaced sympathy by the Labour Courts in such cases when on checking it is found that the Bus Conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower denomination knowing fully well the correct fare to be charged. It is the responsibility of the Bus Conductors to collect the correct fare from the passengers and deposit the same with the company. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare.”
15. The order of reinstatement passed by the Labour Court and its affirmation by the High Court is contrary to the law declared by this Court in B.S.Hullikatti, wherein it was held that it is misplaced sympathy by Courts in awarding lesser punishments where on checking it is found that the bus conductors have either not issued tickets to a large number of passengers and deposit the same with the Corporation. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare. It was finally held that the order of dismissal should not have been set aside. As already noticed, this view was reiterated by a 3-Judges Bench of this Court in the Regional Manager, Rajasthan State Road Transport Corporation’s case.”
14. Insofar as the contention that the order of dismissal is opposed to the provisions of Section 33(2)(b) of the I.D. Act, 1947 the same is liable to be rejected. The order of dismissal from service is on account of proved misconduct. The dismissal is not during pendency of any dispute nor as victimization. The petitioner is imposed with punishment of dismissal from service for the proved misconduct and there was no pending Industrial Dispute to seek protection under the provisions of Section 33(2)(b) of the Act. The order of the learned Single Judge is neither erroneous nor perverse so as to interfere with the same. The petitioner has not made out any ground to interfere with the well reasoned order passed by the learned Single Judge. Accordingly, the writ appeals are dismissed.
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JUDGE JUDGE mpk/-*CT:bms