Karnataka High Court
Basappa Ningappa Ittagi vs The Management Of Nwkrtc on 10 July, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC-D:9555
WP No. 107668 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO.107668 OF 2015(L-KSRTC)
BETWEEN:
BASAPPA NINGAPPA ITTAGI,
AGE:42 YEARS, OCC: NIL,
R/O: SHELGI,
POST: VEERAPUR MUDDEBIHAL,
TQ: BIJAPUR.
...PETITIONER
(BY SRI RAVI HEGDE, ADVOCATE)
AND:
THE MANAGEMENT OF NWKRTC,
HUBBALLI DIVISION,
REP. BY DIVISIONAL CONTROLLER,
HUBBALLI DIVISION,
HUBBALLI.
...RESPONDENT
(BY SRI PRAKASH HOSAMANI, ADVOCATE)
Digitally
signed by V
N BADIGER
Location:
High Court of
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
Karnataka
CONSTITUTION OF INDIA, PRAYING TO ISSUE AN ORDER OR
DIRECTION OR WRIT IN THE NATURE OF CERTIORARI
QUASHING/SET ASIDE THE ORDER PASSED BY THE TRAIL COURT
I.E., PRESIDING OFFICER, LABOUR COURT, HUBLI IN KID NO.
26/2013 DATED 3/1/2014(ANNEXURE-J) AND ETC.,'
THIS PETITION, COMING ON FOR PRELIMINARY HEARING - B
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:9555
WP No. 107668 of 2015
ORDER
1. In this petition, the petitioner is challenging the award dated 03.01.2014 passed in KID No.26/2013 on the filed of Presiding Officer, Labour Court, Hubballi, by which the claim petition filed by the petitioner-workman against the respondent-Management under Section 10(4A) of the Industrial Disputes Act, 1947 (for short, 'the Act') Karnataka Amendment Act, 1987, seeking to set aside the order of dismissal passed by the respondent-Management on 06/11.12.2012, directing the Management to reinstate the petitioner into service with full backwages and continuity of service and all other consequential benefits, has been rejected.
2. Brief facts of the case are that; the petitioner was appointed on 25.01.2005 by the respondent - Management as a trainee driver cum conductor. After the probationary period, he was confirmed to his post and became permanent employee. He was working to the satisfaction of the Management. That on 03.12.2011, a -3- NC: 2024:KHC-D:9555 WP No. 107668 of 2015 charge memo was issued alleging that on 17.12.2011 when the petitioner was on his duty, en-route Dharwad to Kavalgeri, the bus was intercepted at Haranibhor. Whereupon it was found that the bus was carrying 31+00+14 passengers, out of which, the petitioner had not issued tickets to eight passengers who were travelling from Murugamath to Harnibhor and had not collected fair amount of Rs.7/- each from them till the spot of interception. The inspector had issued office memo dated 17.12.2011 and reported the same to the higher authority. On receipt of the charge sheet, the petitioner submitted his reply denying the charges alleged against him and participated in the enquiry.
3. The case of the petitioner is that, he was working as conductor on the said date the bus was intercepted at Stage No.4, after Murugamath- Stage No.2, the next Stage is 03M/S before the Stage No.4. At this point, a group of eight passengers stopped the bus and boarded at Stage No.4, which was very near to Stage -4- NC: 2024:KHC-D:9555 WP No. 107668 of 2015 No.3. That the checking inspector was watching the incident and suddenly came running and snatched the ETM machine and did not allow the petitioner to issue the tickets to the said passengers who had boarded the bus just then. The petitioner was to close the sale of tickets at Stage No.4. Since the checking inspector had snatched the ETM machine, the petitioner was helpless even to close the entry at Stage No.4. That the group of said eight passengers had told the checking inspector that they had boarded the bus at Stage No.03M/S. However the checking inspector did not consider the same and he collected penalty from the eight passengers forcefully for no fault of them, only for the purpose of earning the incentives and to fill up his quota as per the circular issued by the Management by booking a false case of 'NINC'. That the claimant has not committed any act of misconduct as alleged. Hence, sought for dropping of the proceedings.
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NC: 2024:KHC-D:9555 WP No. 107668 of 2015
4. Not being satisfied with the reply given by the petitioner, an enquiry officer was appointed who conducted the enquiry as per the C & E Regulations and submitted the report. The disciplinary authority accepting the same imposed punishment of dismissal of service on the petitioner. Aggrieved by the same, the petitioner preferred the claim petition as above.
5. Respondent appeared, filed statement of objection. Reiterating the contents of the allegations made in the charge sheet, it is contended that after enquiry, a memo with show cause notice was issued to the petitioner along with findings and past history, the petitioner submitted his representation and only after considering upon the material on record and the past history of the claim, the order of dismissal was passed which is just and proper.
6. Based on the pleading, the Labour Court framed the points for its consideration:
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NC: 2024:KHC-D:9555 WP No. 107668 of 2015 "1. Whether the inquiry held against the claimant is fair and proper?
2. Whether the respondent is justified in dismissing the claimant from service with effect from 6/11.12.2012?
3. If not, to what relief the claimant is entitled?"
7. Issue No.1 was answered in the affirmative holding that disciplinary enquiry held against the petitioner was fair and proper and thereafter permitted the petitioner to examine himself as WW1. 18 documents were marked on behalf of the respondent-Management.
8. On appreciation of evidence, the Labour Court dismissed the claim petition by the impugned order. Aggrieved by the same, the petitioner is before this Court.
9. Learned counsel for the petitioner taking this Court through the documents produced along with the petition more particularly, the reply issued by the petitioner to the charge memo at Annexure-B and the finding recorded by the enquiry officer in his report dated 16.08.2022 and the reasoning assigned by the Labour -7- NC: 2024:KHC-D:9555 WP No. 107668 of 2015 Court more particularly at paragraph 12 submitted that the respondent-Management and its enquiry officer had failed to establish and prove the allegation made against the workman. It is his submission that admittedly, the respondent-Management had recorded the statement of the passengers who were found to be travelling without ticket and the said statement was produced in the enquiry. However, the said statement did not contain either the name or the address or other details of passenger. He submits that, had such details were made available, the petitioner would have had opportunity of examining such witnesses to establish the veracity of the said statement.
10. Pointing out the finding given by the enquiry officer, at paragraph 19 of its report at page 18, he submits that even the enquiry officer has taken note of this lacuna in his report and has recommended for consideration of the case of the petitioner on compassion at the time of imposing punishment. Thus, referring to the above, counsel for the petitioner submits that the -8- NC: 2024:KHC-D:9555 WP No. 107668 of 2015 reasoning assigned by the Labour Court at paragraph 12 casting burden on the petitioner to examine the witness is perverse and unjustified. He relies upon the order of the Division Bench in the case of Divisional Controller North West Karnataka Raod Transport Corporation Vs. Iragonda passed on 05.08.2008 in W.A.No.1803/2007 wherein the Division Bench of this Court has held that the statement of the passengers which were purportedly recorded, without their address, was a fatal lapse on the part of the Management. He submits that despite producing said order of the Division Bench of this Court, the Labour Court has declined to consider the same. Hence, seeks for allowing of the petition.
11. On the other hand, learned counsel appearing for the respondent-Management submits that mere non- mentioning the address and other details of the passengers would not be a ground for reversing the entire finding in the enquiry report. He submits that the previous records of the petitioner/employee indicate that he was -9- NC: 2024:KHC-D:9555 WP No. 107668 of 2015 involved in as many as 5 cases in which he was let off by imposing minor fine. He further submits that the very fact that eight passengers were imposed with penalty would indicate that they were travelling without ticket and that was due to the misconduct and dereliction of duty on the part of the petitioner. He refers to the judgment of the Apex Court in the case of Uttar Pradesh State Road Transport Corporation Vs.Gajadhar Nath dated 08.12.2021 passed in Civil Appeal No.7536/2021. Referring to paragraph 11 of the said judgment, he submits that in the said case, the Apex Court has held that non recording of the address of the passengers cannot be said to be the criteria for not relying upon the evidence recorded before the enquiry officer. He submits that no interference is warranted in the matter.
12. Heard. Perused the records.
13. It is not in dispute that the petitioner was a permanent employee and as on the given date, the officials of the respondent-Management had intercepted
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NC: 2024:KHC-D:9555 WP No. 107668 of 2015 the bus and had found eight passengers travelling without ticket. The only reliance placed on by the respondent- Management to justify charge made by them against the petitioner is the statement of the passengers purportedly recorded by them. It is also not in dispute that such a statement did not contain any particulars of the name and the address of said passengers. This requirement was highlighted by the petitioner-workman in his reply notice dated 10.08.2012 in response to the charge memo at paragraph 2 of page 3, in which he has categorically stated that in the statement of the passengers purportedly recorded by the Management there was no address or names of the persons, if it was, he would have examined them. The said lacuna is also taken note of by the enquiry officer at paragraph 19 of his report. The enquiry officer has also stated that there is no explanation provided by the Management for they not recording the details of the passengers in the said statement. The Division Bench of this Court in its order passed in Iragonda (supra), in an identical case has held that "non-mentioning of the
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NC: 2024:KHC-D:9555 WP No. 107668 of 2015 address of the passengers in the statement, is a fatal lapse on the part of the management. The object of disclosing the address of the passenger is to see that in the enquiry the delinquent should have an opportunity to summon the passenger for the purpose of examining or cross-examination. If the address is not disclosed, the entire statement recorded gets vitiated and will be of no consequences in law".
14. Though the aforesaid position of law was brought to the notice of the Labour Court as seen at paragraph 14 of the judgment, the same has been ignored. On the other hand, the Labour Court has casted the burden on the petitioner-employee to examine the witness, which in the considered view of this Court is perverse and unjustified.
15. Reliance placed on the judgment of the Apex Court in the case of Gajadhar Nath (supra), by the respondent counsel is of no avail to the facts and
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NC: 2024:KHC-D:9555 WP No. 107668 of 2015 circumstances of the present case. In the said case, the officers could not record the statement of the passengers, as the conductor misbehaved with him and used abusive words obstructing him from recording the statement, which is not the case at hand. As such, the said judgment is distinguishable on the facts of the case.
16. Counsel for the respondent-Management fairly submits that but for the statement of the witness, there could not have been a case against the petitioner.
17. Thus, in the considered view of this Court, the order passed by the Labour Court without appreciating this aspect of the matter and confirming the order of dismissal from service, suffers from perversity and requires to be set aside.
18. As a consequence, the order of dismissal is modified. Petitioner is directed to be reinstated without backwages. The continuity of service be taken into consideration, without any increment for the period
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NC: 2024:KHC-D:9555 WP No. 107668 of 2015 between the date of dismissal till this order, only for the purpose of providing terminal benefits. That apart, the petitioner shall pay fine equivalent to one month salary, which shall be recovered and adjusted against the salary to be paid.
19. Writ petition is accordingly allowed.
SD/-
JUDGE KGK/CT-ASC List No.: 1 Sl No.: 16