L4IA_l1»Al--l
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED TI-{ES THE 16'?" DAY OF DECEMBER, 2009
PRESENT
THE HONBLE MRJUSTICE VGOPALA GOWDATH.
AND
THE HONBLE MRSJUSTICE B.v_NAGA1§ATHNga. A A A
BETWEEN:
Mohammed Nizamuddin
S/0 Mohammed Ghouse
Aged about 52 years,
E:-«conductor, KSRTC,
Tumkiair Divisioh _ 2 ' u E'
Shirani'M0ha1ia * " ~
A': 8: Postasira ' .
Tumkur District. V
1 Sri.K Ravindranath, Adv.)
......_.._..
$1 The Managing Director
KSRTC, Central Offices,
K.H.Road, Shanthinagar,
Banga}0re--560 027.
fly.
w.A.No.3293/209:9 (i§_%'1'e;)'--«._ .;< . «
... APPELLANT
2. The Divisional Controller
KSRTC. Tumkur Division
- Tumkur. . __
...
{By Sri: Ajay G for Sri L Govindraj, Adv.)
THIS WRIT APPEAL FILED U /s 7′
KARNATAKA HIGH COURT ACT P1=zAYiNc3~~*ro1″sE;-‘1: ASIDE’
THE ORDER PASSED IN THE Wl?.iT’FE’.TEON _N¢;894iA/2005
DATED O3/1:2/2008.
This WA having been arid.__rcserved~.;forijrders” D
on this day, NAGARATHNA J. dlellvered the.foll’owing:-
g; D ci*iv’iE’N
This writ.’ appea.1..,:._is. ‘lllbilzdistvlze workman by
challengingAAthie.V«0r’der”«;jassed f by the learned single Judge
made mi w4.’Pi.N¢;’89’4{1’/,éo–oe dated 3.12.2008.
2. The relevant’ fa’ctsTof the case are that the appellant
‘ ‘ . was Vwoi”kir’igA as conductor at the relevant point of time when
h.e_ with a chargefiinemo on the ground that while
he__4wasVc.on’e1d:cting the bus on Benakanakere to Dabbegatta
route’; he had not collected fare of Rs. 3/ — each from five
I 13§1lss_engers travelling in the bus. The Article of charge was
served on 4.6.2003. Subsequently, Enquiry Officer was
appointed to conduct the enquiry and he gave a report to the
Disciplinary Authority, which on the basis of the said report
which had to be continued and hence the said order of the
Labour Court did not call for any interference in theagwrit
petition.
4. As far as the merits of th.e””case is
learned single Judge held thati
employee himself had admittedijto thehvguilt i
Court had taken into consideration’–the..gexplanavtion’Ethat was
given by the appeliantuhelre-in ‘Ex.W.15 and the
fact that there_”‘were;”V8l3 * ::)reViovtis vinstances when the
appellant –..”sirnilarWoffences, but had
sufferetilonly order of dismissal Was
just andproper-.and’:_e«the«_leari:1ed single Judge concluded that
there was no p”er1grersAity or error in the order of the Labour
._aceoArding–ly’ dismissed the writ petition_ Being
‘a.gg”i*ieVed”~by. :the said order the petitioner has filed this
apnea}. V’ ” ‘
have heard the learned counsel for the appellant
— learned counsel for the respondents.
6. It is contended on behalf of the appellant that in the
instant case both the Labour Court as well as the learned
$4
_ 5 _
8. Per contra, counsel for the KSRTC supporting the
Judgment of the learned single Judge as well as the award
made by the Labour Court has submitted that in the face of
a clear admission of the charges made by the Corporation
against the appellant there was nothing furtheifillwhicli M
Enquiry Officer had to do except submitting.
the basis of the said report and taking
past history, the Corporation was jus”tified in the
appellant since earlier onlylll’*:r:ii11.eor were
imposed. He therefore,i_4_s’ubmjitsZthattheprder lnade by the
learned single Judge doeslnot for interference and
hence :thella’ppieal to ‘ disrnissed.
9. Having. he-«i1′.d”li;h’e.__”counsel on both sides and on
perusal of’ rnatelrialr’ori;record, the only point that arises
for’, consideration is Whether the award of the Labour
l.ACouri; order of the learned single Judge calls for any
i.nte_r’fer’eri’ee infthis appeal.
10,” Whileganswering the said question the matter has to
be looked at from the point of View as to whether there was
fairand proper enquiry conducted as well as on the merits of
5%
/4.
the case. Regulation 23 of the KSRTC Service (Contmct &
Discipline) Regulations, 1971 speaks of proceciii1ie:”p:’–tor’
imposing major punishment. Clauses 9 & 10 V’
23 read as follows: . M
“3” the Corporation serg2ant_ who nq:,_
admitted any of the articles. (:f_”cl’i,arge in [A
written statement of defence or’..not submitted ”
any written statement of defence,’ ~ appears before
the inquiring authority sach”i.authori!y”shVaIl
him whether he is guilty___or’ any defence to
make and if he pleads guilty’ of the articles
of charge, the inquiring autftior-itypjshalel record the
plea, sign the record ¥.and’*obtai’n._ tl1e.si’g,-nature of
the Corporation serva.n.t’vthereon. V ”
= ‘TheiriiaqairingA_:VV”aathonty shall return a
jinduing of ,g’uilt. in..y__respect of those articles of
charge to which Corporation servant pleads
. ~9ui1ty- =
}.’ll_._e. vbe:”i:noted that in the instant casethe Article of
Charlge :’.issued on 4.6.2003 and thereafter the Enquiry
W,Officef ,_nl’as appointed and the enquiry commenced on
‘t1g.e;7.fi’003. About nine sittings were held till 21.10.2003. On
all these days the “delinquent employee namely the appellant
herein was present. On 21.10.2003 the preliminary hearing
was conducted and during the course of recording of the
i»
plea, the ernpioyee was asked as to whether he had
committed the mistake levied against him in the Article of
Charge. It is stated at Annexure~C that the delinquent
employee agreed to have committed the mistake levied:
Article of Charge and on that basis the ~
that the enquiry is completed at __that_ stagellariti.
delinquent employee is provided a.117-.chancee¥ to»de’fendlhi1z1se1If
in the case. The relevant ‘joortion ‘of xthe o[:re1erv…she.et
extracted:
V’t””‘Deiin;}ueni,f and” Apresitiing Qjfficer are
present –for’–“.enquriry.-._ “‘~–.Preiirnina1y hearing is
conducted.’ . During. course of enquiry
delinquent has k1gr’eed to have committed the
mistakeiievied in the Articles of Charges. Hence
e:;iq’uirfy is completed at this stage. Delinquent is
._pi**«9igi¢ie’ci_ with”‘a££…ehances to defence himself in
. _ the Case,
‘ ‘By; -2’i’;1ge,2o.o3 Sd/– sd/-
. V l V Mohd.N&amuddin
12″,; * ..Annexure–D is the recording of the piea and question
isloffil and the answer to the same are also extracted from
§’XnnexurewD as follows:
.. 19 1
13. On a consideration of the same it is apparent that on
the said date namely on 21.10.2003 the representative of the
Corporation was not present. As it is evident froin the
recording of the proceedings on 27.9.2003 and 1s4.v1,0′;-2003
wherein it is stated that reporter was not prese_ntmas” .
on leave for a period of fifteen daysmwhereas”on.:’_the”~.ear1ie_r
occasions when the reporter was z_1’0t–5 present on
10.9.2003 the enquiry was ‘«.postp’0r_1ed.V gHew.eyer,.’2 en
21.10.2003 taking advantage’ the l lreefeeneera of the
representative of the Corp:c=rationi–the’ officer was able
to extract the adrnissi0n..o_ftg-ui1t._lfroiit”thle’:.appellant. It is in
the nature ‘of.:iprelinifina1*yjV”p1eapf”admission of charge. We
find that the plea in the absence of the
representative ofptlie Corporation is not just and proper and
is in vio1’ati.on«’of principles of natural justice and
‘tlie’1’eforel;’Vvefjh0_1d that the enquiry was abruptly concluded
on there was no fair enquiry in the eye of
lawazjzd hence the order of the Labour Court as well as the
order of the learned single Judge on the question of there
a just and fair enquiry is not correct and hence the
“same has to be reversed.
9;:
Wide
14. We shall now deal with the merits of the Case. At this
stage it is necessary to note that the Labour Court has taken
into consideration the background of the appellant Varidrthe
explanation offered at Ex.W.1.5 and particularly _
in earlier 83 instances where the appellant
similar offences, he had suffered only nainoir p.uniAshr’r1et1t’_ and
therefore punishment imposed in the”instanttpcasevvwasijust
and proper according to the Courtg. finding
of the Labour Court the learned Single
Judge. At the first instance it in respect
of 83 prior instanees only r;:1ir1or”pu1iishI;1ents gvere imposed.
Those instantces attire “sirn-ilarf”to””the charge in respect of
which the present’ ‘was held. When the minor
punishmernawere imposed «in all those occasions, there is no
Speci§io:__reason ‘assigned as to why the major penalty of
‘dismiss.a;r.pasf”been imposed in theinstant case. What is of
‘re1;’ava’n{§e Regulation 25 of the Regulations deals with
circurnstances to be taken into consideration for imposition
if V’ of The same reads as follows:
“Circumstances to be taken into consideration
for imposition of penalttesa Without prejudice to
the provisions of any law for the time being in
force any Corporation servant who is found guilty
of any act of misconduct or misbehavior shall be
liable to one or more of the penalties specified in
Regulation 18 according to the gravity of the
./’-
_ ‘V’V’V
16. Reference has also been made to the case of Manche
Gowda reported as the State of Mysore Vs. K.Manchegowda,
reported in AIR 1964 SC 506, wherein it is held in the
context of imposition of punishment, reasonable oppoi’t,unity
has to be given with regard to the delinque_n”t”’emp_lo§:se’~.A
having a say on the material that is the
following passage can be squarely j1,sd;:_ti:¢
the present case:
“We Acannof'”‘t1::¢epi._T_the’. ., doctrine of
presurrzptiuepknowledge or ‘th’at,__of purposeless
enquiry;-..as1’l;jtheirv cicceptaneejiviil be subversive of
the principle of refdsonq£9le’–.,Aopportunity. We.
therefore,” hold tho,t*it incunibent upon the
authority} to ‘the’ Govefiiment servant at the
second ‘s–‘tqg¢’i,rea,sonobie opportunity to show
cause cigcLins’i=.pthe_. proposed punishment and if
the ‘proposed ”’punishment is also based on his
previo:is’puni_shmerv:s or his previous bad record,
j ‘ this shouldlbe included in the second notice so
that he may’be..able to give an explanation.”
“i_’l’he1’efo1:’e;..in the instant case also it is noted that
nowhere irfthe charge sheetwhich is produced at Annexure-
A dated 50.6.2003 or at any time subsequently, has it been
A stated about the previous misconduct and it is only at the
of imposing the penalty of dismissal that the same has
wlheen taken into consideration While dismissing the appellant
from service, which is not legal and valid in the eye of law.
é:
_ 15 _
17. As far as the imposition of penalty of dismissal is
concerned, we find that in the previous instances where
simiiar misconduct had been proved against the appeiiant,
minor punishment had been imposed. But there
no specific reasons assigned as to why the _
dismissal has been imposed in the instant ca;se»e:i§e.ep*tV:ta.i{ing
into consideration the past conduct whiichu’co:’t1Id«.
been done so in the instant,ca_se foijthe reasons: we have
assigned above. ._ _ g_ 1
18. The Labour Court.,Iher€fore,i_:’0ught to hvaveiexercised
its jurisdictionif,under’ of the Industrial Disputes
Act, keeping thedeeision of the Apex Court in the
case of “ii/d’oi’Ecrr1:-;_nAof:1\/£,r’is Firestone Tyre and Rubber Co. of
= Ltd. Managerrient & Others reported in AIR
‘ 19T3 and answered the question on the merits of
ti1e”case of the workmen, keeping in mind the fact
that there Vxhas been disproportionaiity in the order of
punishment imposed by the disciplinary authority.
Therefore. the Labour Court in our View had to exercise its
“power under Section ii%A of the ID. Act and set aside the
order of dismissal and ordered re–instate1nent of the
delinquent workmen. In the decision of K.Giridhar Gowda,
2;.
./’
__i5_
referred to supra, the Division Bench of this court upheld
the exercise of discretion by the Labour Court under Section
11–A of the Act even in the context of the
misconduct and held that the Labour Court V’
setting aside the order of disrnissalp and
reinstatement with 35% backwages yr-*as–..a
order. Applying the same to thedfacts of ease we ” V
find that since we have corr1.e..lto._ a–._.conc1″usion_dthat the
enquiry held was not just on the merits
of the case the imposition oftiie order of disrnissal as penalty
Was alsoVldvispreoportionateyllto th_el”charges which were levied
against”-.thg._appellantfbyi’—eigercise of our discretion under
Section l;i–“A of V we set aside the order of the
autho1*it?v«imposing penalty of dismissal of as
‘W.el’1 of the Labour Court and the learned single
it the appellant is directed to be
reinstated in service with 35% backwages and continuity in
A , V.sAeI’v”;_ce. /A;
2
M13…
19. For the aforesaid reasons the appeal is allowed.
Parties to bear their own costs.
KVN*