Karnataka High Court
The Divisional Controller vs Sri Mohamemd Ibrahim on 11 August, 2014
Author: S.Abdul Nazeer
Bench: S.Abdul Nazeer
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11th DAY OF AUGUST, 2014
BEFORE
THE HON'BLE MR.JUSTICE S.ABDUL NAZEER
WRIT PETITION No.16966 OF 2012 (L-KSRTC)
BETWEEN:
THE DIVISIONAL CONTROLLER,
KSRTC, DAVANAGERE DIVISION,
DAVANAGERE,
REP. BY CHIEF LAW OFFICER,
K.S.R.T.C., BANGALORE. ... PETITIONER
(BY SRI K.S.BHARATH KUMAR, ADV.)
AND
SRI MOHAMMED IBRAHIM,MAJOR,
DRIVER BADGE NO.2795,
R.M.L. NAGAR, FIRST PHASE,
18TH CROSS, SHIMOGA. .... RESPONDENT
(BY SRI S.P.RAMESHA, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER AT ANN-H, MADE IN ID NO.112/09, DT.22.8.11 PASSED
BY THE INDUSTRIAL TRIBUNAL, AT HUBLI WITH RESPECT TO
ISSUE NO.1, REGARDING FAIRNESS OF DOMESTIC ENQUIRY
AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT PASSED THE
FOLLOWING:
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ORDER
This writ petition is directed against the award in I.D.No.112/2009 dated 22.08.2011 on the file of the Industrial Tribunal, Hubli.
2. The respondent was working in the establishment of the petitioner Corporation as a driver. Disciplinary proceedings was initiated against him and it was alleged that while he was performing the duty in the bus bearing No.KA-01/F-6551 plying from Bangalore to Karwar when the bus reached Kavalakki Huliyappana Katte, the bus dashed the stationed lorry and caused damage to an extent of Rs.22,762/-. After holding an enquiry, the Disciplinary Authority passed an order of punishment dated 30.09.2004 withholding one increment with cumulative effect and recovery of Rs.6,892/- in ten equal installments.
3. In the year 2009, the petitioner made an application for conciliation of the matter. Since the 3 conciliation failed, the matter was referred to the Industrial Tribunal at Hubli for adjudication, wherein it was numbered as ID No.112/2009. The respondent workman filed the claim statement. The Corporation filed its statement of objections. The parties have lead their evidence in support of their respective contentions. On appreciation of the materials on record, the Tribunal has modified the order of punishment by reducing one increment for the year 2000 without cumulative effect. The other order of the disciplinary authority directing to recovery of Rs.6,892/- in ten equal installments was confirmed.
4. The contention of the petitioner is that the Labour Court having held that the misconduct alleged stands established, question of reduction of the punishment does not arise. In this connection, he has relied on the decision of the Apex Court in the case of South Indian Cashew Factories Workers' Union Vs. 4 Kerala State Cashew Development Corpn. Ltd., and Others [(2006) 5 SCC 201.
5. On the other hand, learned advocate appearing for the respondent has sought to justify the impugned award.
6. The tribunal has held that the misconduct alleged stands established. However, in exercise of the power under Section 11(A), it has modified the order of punishment.
7. Section 11 (A) of the Industrial Dispute Act, 1947 states that where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labor Court, Tribunal or National Tribunal for adjudication and in the course of the adjudication proceedings, the Labor Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its 5 award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require.
8. The Hon'ble Supreme Court in South Indian Cashew Factories Workers' Union Vs. Kerala State Cashew Development Corpn. Ltd., and Others [(2006) 5 SCC 201] held that Section 11- A of the I.D. Act is applicable only in case of dismissal or discharge of the workman or not otherwise, which is as under:
16. The Labour Court had earlier held that the enquiry was properly held and there was no violation of the principles of natural justice and that the findings were not perverse.
The vitiating facts found by the Labour Court against the enquiry are erroneous and are liable to be set aside. If the enquiry is fair and proper, in the absence of any allegations of 6 victimization or unfair labour practice, the Labour Courthas no power to interfere with the punishment imposed. Section 11-A of the Act gives ample power to the Labour Court to reappraise the evidence adduced in the enquiry and also sit in appeal over the decision of the employer in imposing punishment. Section 11-A of the Industrial Disputes Act is only applicable in the case of dismissal or discharge of a workman as clearly mentioned in the section itself. Before the introduction of Section 11-A of the Industrial Disputes Act in Indian Iron and Steel Co. Ltd., V. Workmen, this Court held that the Tribunal does not act as a court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice etc., on the part of the management. There is no allegation of unfair labour practice, victimization et., in this case. The powers of the Labour Court in the absence of Section 11- A are illustrated by this Court in Workmen v. Firestone Tyre and Rubber Co. of India (P) Ltd. When enquiry was conducted fairly and properly, in the absence of any of the 7 allegations or victimization or mala fides or unfair labour practice, the Labour Court has no power to interfere with the punishment imposed by the management. Since Section 11- A is not applicable , the Labour Court has no power to reappraise the evidence to find out whether the findings of the enquiry officer are correct or not or whether the punishment imposed is adequate or not. Of course, the Labour Court can interfere with the findings if the findings are perverse. But, here there is a clear finding that the findings are not perverse and principles of natural justice were complied with while conducting enquiry."
(underlining is mine)
9. In the instant case, the workman was not dismissed or discharged by the Management. Therefore, the question of interfering with the punishment awarded by the Management is not permissible. I am of the view that the Tribunal is not justified in reducing the punishment awarded by the petitioner/ Corporation.
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10. In the result, writ petition succeeds and it is accordingly allowed. The award and order of the Tribunal at Annexure - H dated 22.8.2011 in I.D.No.112/2009 insofar as reduction of punishment is hereby quashed. No costs.
Sd/-
JUDGE KLY/