Karnataka High Court
The Divnl Controller, Nekrtc, Raichur vs Maheboobsab S/O Rasheedsab on 7 September, 2012
Author: D V Shylendra Kumar
Bench: D V Shylendra Kumar
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
Dated this the 7th day of September, 2012
PRESENT:
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR JUSTICE A S PACHHAPURE
Writ Appeal No.10276 of 2011[L-KSRTC]
BETWEEN:
THE DIVISIONAL CONTROLLER,
NEKRTC, RAICHUR
DIVISION: RAICHUR
REP. BY ITS CHIEF LAW OFFICER
NEKRTC CENTRAL
OFFICE, SARIGE SADANA
GULBARGA ... APPELLANT
[By Sri. Shivashankar H Manur, Adv.,]
AND:
MEHBOOBSAB
S/O RASHEEDSAB
AGE 23 YEARS
OCC:NIL (EX-CONDUCTOR
RC NO.1604-NEKRTC, RAICHUR)
R/O H.NO.2-1-91 ANDRUN KHILLA
DIST.RAICHUR ... RESPONDENT
[By Sri. K Ravindra, Adv.,]
THIS WRIT APPEAL FILED U/S. 4 OF THE KARNATAKA HIGH
COURT ACT, PRAYING TO ALLOW THE ORDER 26.07.2011 PASSED
BY THE SINGLE JUDGE IN THE WRIT PETITION NO. 82295/2011[L-
KSRTC] AND ETC.,
2
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
D V SHYLENDRA KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the North East Karnataka Road Transport Corporation aggrieved by the Order dated 26.07.2011 passed by the learned single Judge of this court in WP No.82295/2011, dismissing the writ petition of the Corporation which in turn was directed against an Award of the Labour Court, Gulbarga dated 8.4.2010 passed in KID No.107/2007.
2. Under the impugned order, the Labour Court had on an application filed by the workman under section 10[4-A] of the Industrial Disputes Act, 1947, had opined that proceedings of the Disciplinary Authority in the Management - Corporation resulting in an order of dismissal of workman on two charges, namely, non issue of tickets to fifteen passengers after collection of fare and 3 that the workman was already involved in about 63 past cases of non issue of tickets or pilferage and in 59 of such cases had suffered minor punishments etc., was not sustainable as it was found that the domestic enquiry was not fair and proper and therefore set aside the order of dismissal and had allowed the Management to lead evidence to make good the charges independently before the Labour Court.
3. The Management led evidence and Labour Court on appreciating such evidence, while found the first charge proved on the admission of the workman himself, about non issue of tickets, second charge was held not proved for not placing commensurate material and therefore found that the punishment of dismissal of service on the proving of the first charge alone is a harsh punishment and proceeded to modify the punishment of dismissal from service into one of stoppage of four increments with 4 cumulative effect and directed reinstatement of the workman into service, but without back wages.
4. Aggrieved by this order, the Management filed the writ petition.
5. The learned single Judge on looking into the matter opined that the Award of the Labour Court does not warrant interference and dismissed the petition and therefore the appeal.
6. We have heard Sri. Shivashankar H Manur, learned counsel for the appellant and Sri. K Ravindra, learned counsel for the respondent - workman.
7. Submission of Sri. Shivashankar H Manur, learned counsel for the appellant is limited and to point out that when the Labour Court had found the workman guilty of the charge of non issue of tickets to fifteen passengers, that charge alone was serious enough to warrant an order 5 of dismissal; that it is a situation of either dishonesty or gross negligence on the part of the workman - Conductor; that whether or not the past involvement of the workman in 59-63 such cases is proved or not, the workman, nevertheless, deserved punishment of dismissal, having regard to the nature of misconduct; that the learned single Judge is in error in overlooking the nature of misconduct and in not applying the ratio of the Judgment of the division Bench of this court rendered in almost identical circumstances, in the case of 'NORTH WEST KARNATAKA ROAD TRANSPORT CORPORATION, HUBLI, v. K S RAGHUNATHAPPA' reported in 2003 LLR
830.
8. The division Bench of this court, in similar circumstances, had an occasion to examine the case and observed as under:
"18. In fact, in the case of Janatha Bazar [South Kanara Central Co-operative Wholesale Stores Limited] and others v. Secretary, 6 Sahakari Noukarara Sangha and Others, the Supreme Court has held that 'once an act of misappropriation is proved, may be for a small or large amount, there is no question of showing uncalled for sympathy and reinstating the employee in service'.
19. Not only that, there is a catena of decisions of the Supreme Court that when serious charge of misconduct is held proved, the only appropriate punishment is dismissal of workman from service and nothing less than that. If need be, reference can be had to the decisions in Apparel Corporation v. Subhash Chandra Sharma and Others, Uttar Pradesh State Road Transport Corporation v. Mohanlal Gupta, B.S. hullikatti's case, supra, Union of India and Others v Narain Singh, Devendra Swamy v. Karnataka State Road Transport Corporation and latest one in Regional Manager, Uttar Pradesh State Road Transport Corporation, Etawah v. Hotilal and Another. So also, this court in the case of North-West Karnataka Road Transport Corporation, A. Ramanna and E. Gurumurthy, supra, has held that in such cases, punishment of dismissal of workman from service is the appropriate punishment. Thus, it is well settled that in such a case of serious misconduct, the only appropriate punishment is dismissal of workman from service.
20. In the above view of the matter, the award passed by the Tribunal in directing the Corporation to reinstate the respondent into service cannot be maintained and as such, we 7 are even unable to agree with the order passed by the learned Single Judge and as such, both the award and order require to be interfered with. In the result, the appeal is allowed. The impugned award passed by the Labour Court and the order of the learned Single Judge are set aside and restored the order passed by the Disciplinary Authority in dismissing the respondent from service. However, parties are directed to bear their respective costs."
9. The past conduct though not proved, it had been made part of the record and submission of Mr. Shivashankar H Manur is that all the minor punishments imposed on the workman are privy to the workman and within his knowledge etc.,; that even during the pendency of the enquiry, the workman was found involved in more number of such cases and the figure crossed '100' and had reached the total number of 104 cases of past history which becomes relevant under Regulation 23 of the Regulations etc.
10. Though we cannot take notice of these subsequent developments as it is not part of the record, what we find 8 is that the Labour Court records a finding that the workman is found guilty of non issue of tickets and on the ratio laid down by the Supreme Court and this court that in cases of misconduct involving dishonesty or integrity, no sympathy is called for and the quantum is not the criteria etc. We find that the punishment of dismissal from service could not have been interfered by the Labour Court nor the learned Single Judge could have overlooked this important aspect of the matter.
11. However, Sri. Ravindra, learned counsel for the respondent - workman has vehemently urged that if the Management had not made good both charges, then even as per Regulation 23[25], punishment cannot be awarded; that if charge is not proved, punishment could not have been awarded and if at all the Management should have strived to prove the charge etc. 9
12. Sri. Ravindra also submits that based on the Judgment of the Supreme Court in the case of 'STATE BANK OF INDIA AND OTHERS v. K P NARAYANAN KUTTY, reported in 2003 Lab. I.C. 778, if the enquiring authority has found that any of the charges are not proved, the disciplinary authority should disagree with the finding, then based on the material, record its own finding, that having not been done, the charge is not proved etc.
13. We find the submission of this nature is wholly irrelevant for the present case as Labour Court has already set aside the domestic enquiry proceedings and the order of dismissal and had allowed the Management to lead evidence. It is thereafter the Labour Court recorded a finding that charge No.1 and non issue of tickets is also proved.
10
14. We find that even if charge No.2 of past history is held not to be proved, as submitted by Sri. Shivashankar H Manu, learned counsel for the appellant, even a single instance is good enough and that is the trend of judicial opinion insofar as involving dishonesty is concerned.
15. Position of a Conductor is that of a Trustee for the funds of the Corporation and a pilfering Conductor is a menace not only to the Corporation but also to the larger public interest. We are in respectful agreement with the view that dishonest person does not deserve reinstatement, that too in respect of the post of a Conductor who is serving in a fiduciary capacity vis-à-vis the funds of the Corporation being involved in misconduct of dishonesty.
16. It is therefore we are of the opinion that the order of the Labour Court directing reinstatement and order of the learned Single Judge to decline to interfere are not 11 sustainable, both of which are hereby set aside by issue of a writ of certiorari.
17. The order of dismissal as had been inflicted by the Management earlier is sustained. Writ appeal is allowed.
18. However, we taking cue from the order of the Supreme Court in this regard, we direct the workman to be compensated by a sum of Rs.50,000/- by the Corporation to the Employee-workman.
Sd/-
JUDGE Sd/-
JUDGE AN/-