IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR W.P.NO.43329/2015 (L-KSRTC) BETWEEN V.VENKATAKRISHNA S/O VENKATAPPA, AGED 49 YEARS CONDUCTOR TOKEN NO.2405, KSRTC, KGF DEPOT, KGF, KOLAR DISTRICT.
(BY SRI L SHEKAR, ADV.) AND THE DIVISIONAL CONTROLLER KSRTC., KOLAR DIVISION, KOLAR-578201.
(BY SRI HAREESH BHANDARY T, ADV.) ... PETITIONER ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED AWARD DT.17.9.2011 PASSED BY THE LEARNED PRESIDING OFFICER, INDUSTRIAL TRIBUNAL, BENGALURU IN I.D.NO.276/2009 VIDE ANNX-A AND CONSEQUENTLY ALLOW THE REFERENCE AS PRAYED FOR BY ALLOWING THIS WRIT PETITION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Heard the learned Counsel for the petitioner and the learned Counsel for the respondent-Corporation.
2. The case of the petitioner is, that he is employed as a Conductor in the respondent-Corporation. That on 16.04.2005, when the petitioner was on duty on the Malur- Bangarapet Road, two officials of the respondent- Corporation, one Establishment Supervisor and one Junior Assistant boarded the bus before it reached Nidaramangala stage point, for the purpose of checking the bus and that the petitioner was in the process of completing issuance of tickets to the passengers who had just boarded. That the two officials are not checking officials and are not authorized to carry out the work of checking inspectors and it was also made known that the bus had not reached the stage point i.e., Nidaramangala. It is the further case of the petitioner that on being pointed out about the bus having not reached the stage point, the officials de-boarded the bus and left without issuing any offence memo.
3. That on 09.05.2005, the petitioner was visited with an order of suspension. That on perusal of the suspension memo, the petitioner came to understand that he has been suspended for having misbehaved with the checking staff. It is submitted that after the lapse of five months, the respondent-Corporation issued the articles of charges alleging that on 16.04.2005 while the checking staff intended to check the bus and asked the petitioner to hand over the EBTM machine, the petitioner refused to hand over the EBTM machine and the waybill and also prevented the checking staff from checking the passengers and he also instigated the driver not to hand over the log sheet to the checking staff.
4. Petitioner submitted his reply to the articles of charges denying the allegations. The respondent not being satisfied with the explanation offered, appointed an enquiry officer. The enquiry officer conducted the enquiry and submitted the report holding that the charges are proved. The respondent was served with the show cause notice calling upon the petitioner to submit his say to the findings and the report submitted by the enquiry officer. The petitioner submitted his statement and the respondent- Corporation after looking into the same, being dissatisfied with the cause shown by the workman, was pleased to impose the punishment of withholding of five annual increments with cumulative effect and further, the period during which the petitioner was kept under suspension was treated as not on duty.
5. Aggrieved by the same, the petitioner raised Industrial Dispute as the conciliation ended in failure. The dispute came to be registered as I.D.No.276/2009. Both the parties filed their evidence. The Industrial Tribunal rendered a finding that the enquiry was fair and proper and hence validly conducted and thereafter parties were permitted to lead their evidence and the matter was heard on merits and disposed off.
6. The case of the petitioner is one of denial. It is contended by the learned Counsel for the petitioner that the staff were not the checking staff and they were not authorized to perform the same. That the staff ought not to have been admitted to check the bus in between the stages and that the Tribunal has failed to appreciate any of the material on record and that the appreciation is not only perverse, but contrary to the established rules of evidence. It is further contended that there is absolutely no material to demonstrate the allegations or the charge of misbehaviour.
7. Per contra, learned Counsel for the respondent- Corporation would submit that the findings by the Tribunal do not warrant any interference as the charges have been proved and that rules of evidence are inapplicable to the domestic enquiries and that the authorities are required to render finding on the preponderance of probabilities. He would submit that the material on record probablizes the charge leveled against the petitioner. He would further contend that the checking staff are entitled to check the bus even midway in between the stages and that the rule is that the bus has to leave the last bus stand only after the tickets are issued to all the passengers.
8. Though the rule appeals to one’s prudence, but the fact in reality is otherwise. Assuming that the bus can leave the bus stand only after issuing tickets, it can be safely presumed that the travel time would not only double but would become quadruple, more over during festival seasons and marriage seasons, admittedly the passenger count swells dramatically and the number of people traveling and utilizing the services also increases dramatically and in such situation, if the bus is to leave the bus stand only after issuance of tickets, then in such instances it could lead to enormous delays as it is a known fact that the crowd in the bus would be atleast 50% more than the permitted capacity. It would take several minutes for the conductor to even traverse the bus from one end to the other and if he has to ensure the issuances of tickets to all the passengers who could in all be 70 to 80, the said task would take anywhere between 20 to 30 minutes and if this is to be repeated at every stage, the bus as stated earlier would take quadruple amount of time to complete its journey.
9. Learned Counsel for the respondent would submit that the Tribunal has independently appreciated the material on record and hence, would pray for dismissal of the writ petition. He would further contend that the issue of checking staff not being authorized to carry out the checking is raised only at this stage and it was never raised either during enquiry or before the Tribunal and hence, he would pray that the same may be rejected.
10. In the light of the above facts and circumstances, this Court is of the opinion that the short point that requires to be addressed by this Court to disposed off this writ petition is, “whether the order of the Tribunal is sustainable and as to whether the respondent-Corporation has probablized and proved the charge leveled against the petitioner?”
11. After having adverted to the facts narrated above, this Court is of the considered opinion that the employer has failed to establish the charge leveled against the workman. It is the stated case of the employer that the petitioner blocked the entry of the checking staff into the bus and refused to hand over the EBTM machine and the waybill. The said allegation requires to be taken with a pinch of salt as the checking staff have not only gone past the conductor, but have also reached the driver and have taken the log sheet and made an entry “misbehaviour”. No details of alleged misbehaviour is noted therein. It was however open to the checking officials to detail the alleged act of misbehaviour and they could have also got issued the charge memo which they have failed to issue. The admitted case is that they have reached the driver and have made entries in the log sheet, then necessarily the door to the bus would have to be opened by the conductor only and it is well known that the buses of the respondent- Corporation have been provided with a common or single entry and exit point and if the charge is taken as correct, then the said common point was manned by the conductor and he has denied the ingress into the vehicle. The said charge cannot be countenanced in the light of the fact that they have not only gone past the conductor but having reached the driver, they made entries in the log sheet. There is no denial with regard to the officials having made the entry in the log sheet. It is also admitted that no charge memo was issued immediately thereafter. It is also not the case of the said officers that they even attempted to check the passengers and that there were passengers traveling without tickets. The fact remains that the checking staff have entered into the bus and then having failed to discharge their duties, they cannot turn around and blame the petitioner that they were prevented entry into the vehicle. The very fact that they have reached the driver and took the log sheet and made entries in it, does not inspire confidence that they were indeed denied access into the bus.
12. It is also not the case of the officials that the petitioner had tried to assault or in any other manner tried to prevent them from entering the bus. The only allegation is that he has passed certain comments in a loud voice. Assuming that the statement is correct, it was always open to the officials to command the driver to proceed with the bus to the nearest police station or to the nearest depot and they could have continued with the checking. Not having even been attempted any of these, the allegations do not inspire confidence in the court. Further more, the other factor in favour of the petitioner is the statement of the witness produced on behalf of the Corporation i.e., the driver who has categorically falsified the statement that the bus was checked at Nidaramangala stage point. He has stated that the bus was checked about two kilometres prior to Nidaramangala stage point and he would state that he does not know what was the discussion that was going on between the petitioner and the officials. Further, on perusal of the cross-examination, it is seen that there is not even a suggestion that the petitioner was speaking in a loud voice. If that be the evidence, in the opinion of this Court, the Tribunal has miserably failed to appreciate any of these. On the other hand, the Tribunal has proceeded to hold that the enquiry lacks discussion and strong reasons and that there is no detailed appreciation of evidence, however, it has proceeded to uphold the same. Having concluded that the findings of the enquiry officer lacks detailed appreciation of evidence, discussion and strong reasons, the option before the Tribunal was to re- appreciate the same. In the opinion of this Court, the presumption that the Tribunal has drawn from the statement of the witness, to say the least is contrary to the established principles. The statement of the driver nowhere enables the drawing up of a presumption much less any presumption in favour of the Corporation. On examination of the material, it is seen that it is one’s word against the other. Apparently, the officials who did the checking are the witnesses and it is their version against the version of the conductor who is the delinquent. The only independent witness is the driver and hence, the Tribunal ought to have scrutinized the evidence of the driver with a little more care. The manner in which the evidence of the driver has been appreciated leaves much to desire. The Tribunal has not given any reasons for discarding the evidence of the driver who admittedly is the only eye-witness in the enquiry. It is not the case of the officials that they have recorded the statement of any of the passengers. The Tribunal further erred in holding that the checking officials are the higher ups of the petitioner. It is seen that the only report that is marked during the disciplinary enquiry is the report dated 26.05.2005 submitted by the officials with regard to the alleged act of misbehaviour. By no stretch of imagination, can the Tribunal presume that the report is submitted immediately. Admittedly, the alleged incident took place on 16.04.2005, whereas the report is said to have been submitted in 26.05.2005. Accordingly, the point for consideration is answered against the respondent.
13. In view of the above discussion, this Court is of the considered opinion that the employer has failed to demonstrate the misconduct as alleged and thereby failed to prove the charge leveled against the petitioner. In that view of the matter, this writ petition is allowed. The judgment and award dated 17.09.2011 passed in I.D.No.276/2009 by the Industrial Tribunal, Bengaluru, is set aside. Consequently, the punishment imposed withholding five annual increments with cumulative effect against the petitioner by order dated 27.01.2007 is also set aside.
There shall be no order as to costs.
Sd/- JUDGE KK CT-HR