Karnataka High Court
Sri A Krishnappa vs The Divisional Controller Ksrtc on 7 October, 2013
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
W.P.29300/13
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 7TH DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT PETITION NO. 29300 OF 2013 (S-KSRTC)
BETWEEN:
A KRISHNAPPA
S/O. LATE DODDA ANJANAPPA
AGED ABOUT 44 YEARS
WORKING AS CONDUCTOR
CHIKKABALLAPURA DEPOT
KSRTC AND RESIDING AT No. 274/1
DESI PROVISION STORES, M G ROAD
CHIKKABALLAPURA,
KOLAR DIVISION. ... PETITIONER
(BY SRI.V.S.NAIK, ADVOCATE)
AND :
THE DIVISIONAL CONTROLLER
KSRTC, CHIKKABALLAPURA DIVISION
C S I HOSPITAL ROAD
CHIKKABALLAPURA - 562101. ... RESPONDENT
(BY SMT. H R RENUKA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
ENTIRE RECORDS FROM THE RESPONDENT CORPORATION
PERTAINING TO ANN-D AND QUASH THE ENDORSEMENT
DATED 5.6.2013 THE ORIGINAL VIDE ANN-D ISSUED BY THE
RESPONDENT SINCE THE SAME IS ARBITRARY AND ILLEGAL;
ETC.
THIS WRIT PETITION COMING ON FOR PRL.HEARING 'B'
GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
2
W.P.29300/13
ORDER
Petitioner when engaged as a conductor on Badli basis in the respondent - Public Road Transport Corporation was brought on probation and absorbed against a vacant post on 28.10.1995. The allegation of misappropriation of revenue of the respondent - Corporation, when proved in a domestic enquiry, the disciplinary authority, by order dated 22.11.2000 imposed the punishment of dismissal from service. That order when called in question in a proceeding invoking Section 10(4-A) of the Industrial Disputes Act, 1947 (for short "the Act") registered as No.4/2001 on the file of Additional Labour Court, Bangalore, was rejected by award dated 4.1.2005. In other words, the order of termination of service of the workman was confirmed. That award when called in question in W.P.No.22948/2005, this Court by order dated 25.2.2009 observing that "charge alleged appears to have been proved", opined that the punishment of dismissal was disproportionate to the charge proved and accordingly modified the order of punishment thus: 3 W.P.29300/13
"Accordingly, the Writ Petition is partly allowed. The order of dismissal is set aside, however, the petitioner is entitled for reinstatement but will not be entitled for five increments with cumulative effect and no back wages for the said period."
2. The respondent - Road Transport Corporation complied with the order dated 25.2.2009 Annexure-A directing reinstatement and withholding 5 increments, by order dated 20.10.2009 Annexure-B. It appears that the petitioner made a representation on 4.4.2013- Annexure-C seeking proper pay fixation by extending him the benefit of continuity of service which when considered by the respondent, was rejected by endorsement dated 5.6.2013 Annexure-D, hence this petition.
3. Sri.V.S.Naik, learned Counsel for the petitioner submits on instructions that petitioner restricts his claim to one of continuity of service only for the purpose of terminal benefits. Learned Counsel points to the observation of the learned Single Judge in the order 4 W.P.29300/13 dated 25.2.2009 Annexure-A to submit that interference with the award of the Labour Court was on the premise that the charges even though appears proved, the punishment of dismissal being shockingly disproportionate is modified to one of reinstatement by denying five increments with cumulative effect. According to the learned Counsel, the word 'reinstatement' takes into fold not only continuity of service but also consequential benefits as held by the Three Judges Bench of the Apex Court in Gurpreet Singh Vs. State of Punjab and others1 and another opinion of the Apex Court in Sanat Kumar Dwivedi vs Dhar Jila Sahakari Bhoomi Vikas Bank2 and Sain Steel Products Vs. Naipal Singh and others3. It is lastly submitted that in J.K.Synthetics Ltd. Vs K.P.Agrawal & Anr4 at paragraph 19, though the Apex Court observed that where reinstatement is a consequence of imposition of a lesser punishment, 1 2002 (92) FLR 838 2 2000 (87) FLR 349, 3 2001 LAB.I.C. 2373.
42007 II SCC 433 5 W.P.29300/13 neither back-wages nor continuity of service or consequential benefits follow as a natural or necessary consequence of such reinstatement, nevertheless in the facts of this case, learned Single Judge having observed that the charge appears to have been proved and not that the charge is proved, the reinstatement directed by the learned Single Judge must be read to include consequential benefits and continuity of service.
4. Per contra, Smt.H.R.Renuka, learned Counsel for the respondent - Corporation submits that regard being had to the fact that the charge against the petitioner was misappropriation of the Corporation's revenue to the extent of `9,349.50 paise, by not accounting for the sale of tickets to passengers who travelled in the bus conducted by the petitioner, which when proved, though did not deserve any lesser punishment than one of dismissal from service, nevertheless, learned Single Judge having modified the order of punishment to one of reinstatement withholding five increments with cumulative effect, 6 W.P.29300/13 when not questioned is final. The term 'reinstatement', in the circumstances cannot be interpreted to mean and include continuity of service and consequential benefits. Learned Counsel hastens to add that had it been a case where misconduct was not proved, in other words, the workman was found not guilty of the charge of misappropriation, perhaps law would come to the rescue of the workman so as to interpret the word 'reinstatement' to include continuity of service and consequential benefits. Learned Counsel relies upon the observation of the Apex Court at paragraph 19 in J.K.Synthetics Ltd. case supra to submit that when this Court exercised jurisdiction under Articles 226 of the Constitution of India to interfere with the quantum of punishment so as to reduce the punishment from dismissal of service to one of reinstatement by withholding five increments, it is needless to state that on reinstatement is in itself a consequential benefit and does not automatically entitle the workman to continuity of service and consequential benefits. 7 W.P.29300/13
5. Having heard the learned Counsel for the parties, perused the pleadings and examined the endorsement impugned, there can be no dispute that the charge against the workman was one of pilferage of Corporation's revenue to the extent of Rs.9.349.50 paise which the Labour Court, the fact finding court had recorded a finding that the misconduct was established/proved. Learned Single Judge having re- appreciated the evidence held that "charge allegedly appears to be proved" while at the same time noticed that dismissal of the workman from service was a punishment which was shockingly disproportionate to the misconduct proved. Hence the learned Single Judge modified the order of punishment to one of reinstatement by withholding 5 increments with cumulative effect and denying back wages.
6. In J.K.Synthetics Ltd.'s4 case, the Apex Court having reviewed all its earlier decisions with specific reference to interference with the orders of punishment, more appropriately one of dismissal, either by exercise 8 W.P.29300/13 of jurisdiction under Section 11-A of the Act by the Labour Court or under Article 226 of the Constitution of India by the High Court, observed that there was misconception that whenever reinstatement is directed "continuity of service" and "consequential benefits"
should follow as a matter of course.
7. At paragraph 19, the Apex Court observed thus, " x x x x Where the power under Article 226 or section 11A of the Industrial Disputes Act (or any other similar provision) is exercised by any Court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of 9 W.P.29300/13 punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back-wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement 10 W.P.29300/13 benefits, and not for other benefits like increments, promotions etc. At paragraph 20 Their Lordships observed thus:
"20. But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimize him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back-wages etc. will be the same as those applied in the cases of an illegal termination."
8. In Gurpreet Singh's1 case supra, the facts were the plaintiff's suit for declaration that the termination of service was null and void was dismissed whereafterwards the Lower Appellate Court on re- appreciation of material on record came to a different conclusion that the order of termination is illegal and consequently directed the plaintiff to be reinstated into 11 W.P.29300/13 service and decreed the suit. The Appellate Court had disentitled the plaintiff to arrears of salary for the period when he had not served the organization. That judgment and decree when carried in appeal to the Apex Court, it was observed that in the facts and circumstances of that case since it was not a fresh appointment by way of reinstatement, plaintiff was entitled to arrears of salary while noticing that continuity of service could not be denied to the plaintiff.
9. This judgment, in my considered opinion, is inapplicable. The factual matrix, in this case being the petitioner when charged with misappropriation of public revenues, this Court found that the charge appears to have been proved, hence not a case where the petitioner was exonerated honorably of the charge of misappropriation. In other words, the order of termination from service for proved misconduct was interfered with by exercise of extraordinary writ jurisdiction under Article 226 of the Constitution of India insofar as it relates to quantum of punishment, on 12 W.P.29300/13 finding that the punishment of dismissal was found shockingly disproportionate to the gravity of misconduct proved. Therefore, the decision of Gurpreet Singh case would not aid the case of the petitioner.
10. The decision in J.K.Synthetics Ltd.'s4 case applies on all its fours while paragraph 20, provides for two exceptions that is where the court set aside the termination as a consequence of employee being exonerated or being not found guilty of misappropriation and where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimize him and the disproportionately excessive punishment is a result of such scheme or intention, whence, the workman would be entitled to continuity of service, consequential benefits and backwages. This observation of the Apex Court applies on all its force to the facts of the present case disentitling the petitioner to either consequential benefits or continuity of service since on reinstatement 13 W.P.29300/13 it is not axiomatic that continuity of service and consequential benefits must follow.
11. In Sanat Kumar Dwivedi's2 case supra, the question as to whether continuity of service and consequential benefits should follow as a matter of course whenever reinstatement is directed, did not directly or indirectly fall for consideration as in J.K.Synthetics Ltd.'s case supra and therefore that judgment too has no application.
12. If regard is had to the consideration of the Apex Court over the questions relating to the reliefs to be extended to the workman in an industrial adjudication more appropriately over reinstatement, continuity of service and consequential benefits, the learned Single Judge, in the present case having directed reinstatement of the petitioner by withholding five increments with cumulative effect, is a consequence of imposition of a lesser punishment, it cannot but be said that the term 'reinstatement' did not take into its 14 W.P.29300/13 fold either consequential benefits or continuity of service.
13. In the result, this petition, devoid of merit, is rejected.
Sd/-
JUDGE RS/*