Karnataka High Court
S Nagaraju vs Karnataka State Road Transport ... on 23 January, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
[O
This Writ Petition by , the .di1'ected"uagainst
the award passed by the II': Labour CDuI'l;~..B3,i1gal0.VC on
22.5.2010 in ID No.2l2/199§"\vhereun'derithefidispute raised
by the workman by clairn.1s'tateif11.ent u/s.2--A read with
Section lO(4«A)_ of Act (hereinafter
referred to as for sl£1o'r;t).Ca rejected and order of
dismissal the 2m' respondent came
to be :affirnieti.._V
2. joiiiiefd the services of Karnataka State
Ropagd Transportvl Corporation (hereinafter referred to as
for the sake of brevity) as a Conductor in BTS
.D«ivis1ofr1f'~«.VVp2on:'-_'l9.3.1976. A notification dated 10.5.1994
(Annexiireifiln was issued by the Chairman and Managing
Director: of the Corporation whereunder petitioner was
ndeputed as an Employees' representative (along with four
others) to the Governing Council of Karnataka State Road
mHTransport Corporation Employees' Death cum Retirement
Benefit Fund (hereinafter referred to as "DRBF' for the sake of
brevity). In View of the representation made by the Principal
'~29
3
Secretary of KSRTC Staff and Workers Federation by letter
dated 16.4.1994 requesting to nominate thevypcetitioner as
Secretary of DRBF, the said proposal
Governing Council meeting held "
accordingly, the petitioner was'.__ nomi-hated-. as°S:ecr«;:t_a1y or *
DRBF w.e.f. 29.7.1994. "'l_'he_.servicesoiiyithglpgtitioneriwas
treated as OOD in Hview granted by the
Chairman and Managing the Corporation. On
16.8.1997, order passed keeping the
on the ground
Corpovrat.iVofiuh'ad~1:rece»iye.d a report from Deputy Commissioner
of Police 'statingiljtliat.jpetitioner was in custody for more than
48 hoursg, Sub's.equ_entliy, the said order of suspension was
pp reydked' on 17'.4«..l._9_98. In the mean while, Articles of charge
' yrfas. issueldpito-._the petitioner by the Disciplinary Authority in
exercise power conferred under Regulation 19(2) read
with ~~l§egulation 23 of KSRTC Services (C & R) Regulations
charging the petitioner for the act of misconduct
alleging that while petitioner was under suspension pending
enquiry he illegally and un--authorisedly had drawn
Rs.35,983/-- from the DRBF which fund was solely ear
(V
4
marked for retired employees and dependants of the deceased
employees. And on account of the said he had
conducted in a manner highly unbecominglmof
servant while subvertinglthe object' of
violated Regulatione3 of KSRTC 4*:
1971. Show cause notice came tofbel to
the show cause notice authority
after considering the bnrgecord by order dated
5.6.1999 petitioner from the
services of hnmediate effect.
same, petitioner raised a dispute by
filing l.jfstate:nie'nt u/s.2A r/w. Section 10(4-
A)(KarnatalV{a.vAmendment) of Industrial Disputes Act, 1947.
On' registering the said claim petition notice was ordered on
Corporation and a detailed statement of
objiectionslwas filed controverting the averments made in the
cl,a_im"petition. An issue as to whether disciplinary enquiry
"'..co'I1'ducted against first party (workman) was fair and legal
1 it "came to be framed and Labour Court by order dated 5.9.2008
held the said issue in the negative and listed the matter for
evidence of the second party namely the Corporation on
q(/
6. An application IA No.1/2011 and}?/2QVi"i l'hé§'§1i5e_¢n
filed by the learned counsel for.the"pet_it.ionerS"for 'production:
of additional documents. Learned A.COu.I'1S€1». for
Corporation though has 11lt3--t.:,.:lg:'I"i~l_egd ariy.obj¢?ctioVn's"'to thelsaid
applications, opposed that it is
irrelevant. Taking _.L'the grounds urged in
the Writ Petiti._oi1.__ consideration that no
prejudice. to the respondent-
Corpopratioridf are produced, since the
existence are not disputed said
applications are "hVereb$fV4'a1lowed and documents produced
along" with these' applications are ordered to be brought on
re.fc_4o:rd and they 'a-re«also perused.
__ senior counsel appearing for the petitioner
has contended as under:
(1).. There is no question of Corporation suspending
the petitioner and same does not arise since as on
the date of suspension i.e. 16.8.1997 petitioner
was already working in DRBF Trust and he was
not an employee of Corporation.
c5./
(vi) Suspension cannot go beyond,._sviXV..mo:nths il'2._VlEW
of settlement arrived atb::betvveein~ Corporationk':
and the Employees . «. '
(vii) Suspension orde'r.:i"tself as toivhat
miscondu eta the has oornniitted.
(viii) Even could not have
suspended"'the:1petiti.oner petitioner was not
H. in Corporation and
""" H of the petitioner was
_A it
4' col~p¢£ati§n:iirts'e1r has violated the conditions of
"order namely it has not obtained any
zundertaking from petitioner as stated in the
.4"siu'spension order and hence, it cannot be held
petitioner has violated the conditions imposed
in the suspension order.
A 8. He would elaborate his submissions by drawing the
= ..«attention of the court to the admission of the Management
witnesses to buttress his contention that these witnesses
have themselves admitted that as on 19.9.1994, petitioner
was not discharging his duties as a Conductor, but was
period of time. If such a princi_piev~vvere'v.not to '*
be recognised, it woutld'wi_mply _'tha_t"~7the:.
Executive is being vests-ed.. w'ith~. totally
arbitrary and unfettered power of; placin'gi"~its~,
officers under disability and Vdistre.ss..__fo:--'
indefinite duration.
(2) 1960(1) SCR4 vi"/E».[The,'Manage1r1ent of Hotel Imperial,
New Delhi &:.Othe:'rsVVs},_lio'tel"'W'orkers' Union
(3) (1933) .[:"fhe'--liW-orkmen of M/s.Firestone
Tyrej.-i"an"dll"-Rubber' lndia (Pvt.) Ltd., Vs. The
____ _pManage_;rne11t"an'd Others.
"Per"iSlri B.L. Sanjeev, learned counsel
appp.§ea1"ing fo'r._l_Vthe Corporation would support the award
"the Labour Court and prays for dismissal of the
He would contend that petitioner/workman
nominated to DBRF, since he was an employee of the
Corpo,ra;~tion and salary was paid by the Corporation,
petitioner was governed by the service conditions of the
Corporation. He would draw the attention of the court to the
'Trust deed executed for establishing Karnataka State Road
Transport Employees' Death cum Retirement Benefit Fund
namely para 21 which provides for passing of the resolutio;1/
by majority of trustees, present atxxthe
resolution dated 6.5.1998 relied "
contend that he has been paidadyance is
not a decision by majoritygsince-.Vout.'ot: persons four
persons were not and the extract of
the resolution__produced_ would show that
except the Rangareddy were
present at and none else. As such, it is
contevndled' would not come to the rescue
of also draw the attention of the
court to extract of history sheet which goes
tog' thatte"ar1.iH€r.vto the incident in question on 86 (eighty
' ..Vocca,si'ons petitioner was imposed with minor
as such, he submits that there is no good
groundflmade out by the petitioner for interference with the
"o*rd4_erlof the Labour Court. He would draw the attention of
it '-_the='lcourt to the order passed in Writ Petition No.l2277 of
.. _.;'l2008 dated 7.7.2010 whereunder identical contentions raised
in the present Writ Petition was also raised in the said Writ
Petition and same came to be negatived by this Court and
said order has become final in WA No.8ll5/2010 by or(%('3r/
13
dated 3.6.2011. He would alsowdraw_-tl"ie'.j':attent,i.or;of».th--e
court that order passed by the l:_3:'lVlS.i:(')_'r1:. Bench-.:of--
WA No.665-70/Ol and other:'«V_cc}--nnectedy. '~mat't.e1*sVf:V"dVated
16.4.2004 whereunder havepV'oee'nT'ii1ade against
the present petitioner. and this court to
the corporation to record to the post
of the Secretary__ in namely the
present he seeks for dismissal
of the
the learned counsel appearing for
pa.r:t5iesi'~andufonuyperusal of the records the following facts
9' would."e1n_e1rge:
joined the services of 15' Respondent
Cf)o«rpo_ratic'nf as a Conductor. Articles of Charge was issued by
the "Disciplinary Authority on 7.8.1998 in exercise of its
9' -..V'po\i.}5ers conferred under Regulation 19(2) r/W. Regulation 28
.. KSRTC Servants (C & D) Regulations 1971, and same reads
as under:
"That you while under suspension pending
enquiry, illegally, and unauthorisedly, have drawn
Rs.35,983-O0 from the Death--curn--Retirernent
'V2
14
Benefit Fund, which fund is solely for retired
employees and dependents of deceased em'p1oye'es.
Thereby, you have conducted yourself _
highly unbecoming of a Corporation" 9\:>_Vhfil'ef _
subverting the objective ofMth'e' Trust; "l'iav'e
thus committed an act "\ofa_ grave'- _vi11iscon'duict.
violating Regulation-8"~--.of isI{Sl\'51lC{yvSer\z3ants--.i*
(C&D) Regulations 19741-._'pl'eadintg'~to'severe moral
turpitude. . Vs
The statement relation to the
above charge is
You: 'Nag:araj.u;~-Conductor, T.No.4359 was
placed :5} under. suspension vide order
'Nof131Vi"fC';'S»;..@S:13-:2':"Qen:772: 5958 dated
168.1997' 8 the terms and conditions
_..fl;entioned'therein. (Copy of the SPE Order
.....
' Hovvever, in violation of the terms and conditions rnentioned in the suspension order, you have 'drawn the amount as under during the period froml 3.8.1997 to 17.4.1998 from Death cum Retirement Benefit Fund:
1. Cheque No.314096 dt.12.5. 1998 for Rs.24,397/- V 15
2. Salary for May 1998 vide cheque cit. 1.6.1998 for Rs.5,598--OO. _ _
3. salary for June 1998 vide che.qu§{ 9.90.9991 445:1' 9.
dt.1.7.1998 for Rs.5,988--0a5.77
12. Same came to andfithe Disciplinary Authority the reply ordered for conduct,in.g'--a'9'-- Accordingly. domestic enqu_i:iy_. wa;3~~~r1eld¥ t0 be submitted on l7. l0. holding charges are cause notice came to be issueidgandd the reply, Disciplinary Authority imposed'a:_the of dismissal from service. Corgtentions ia_i_yse'd the petitioner are analysed as under:
« (l):l'_"'v..aC)IV..1_.'€"V..0f the contentions raised by the petitioner is:
suspeiidsicri of petitioner by the Corporation does not arise, since has on the date of suspension petitioner was working in and even otherwise only on the complaint if any given V. DRBF suspension order could have been passed by the Corporation. By a notification dated 10.5.1994, the Governing Council of KSRT C DRBF was reconstituted by the 4?
l8 while under suspension pending inquiry he and unauthorisedly drawn Rs.35,983/~ from fund is solely earmarked for" "retirfed_:.l dependents of deceased emplolyeelsgff 9 Regulation 3 leading to seve'r-elinoral amount of Rs.35,983/- is said~..to have by petitioner under three cheques on vvhich is as follows: (1) Cheque=No.3 1:4vo96ydt;--12,,5. l'99'8.7for Rs.24,397/-- (2) Salairy 1998 lvidefcheque No.3l4238 dt. i.6.1993"'f'cs:~ R$.;:'Efi'£.$9"§%T'0©.? A (3)'saigr_y x~June--.ll99'8~~vide cheque No.3l445l dtgl.7[ll998lforw.Rs;=5,988--OO."
Am-punts un'de_r"cher1ues at Sl. Nos.2 & 3 above referred to after the order of suspension was after 17.4.98. Thus, the only amount which beveiiivvvitlhdrawn by petitioner relates to salary pertaining to the.v__fperiod of suspension withdrawn on 12.5.1998 at Sl. above referred to. In the order of suspension dated V !}l6.8.l997 (Annexure-Pl) it has been clearly mentioned that petitioner cannot engage himself in any other avocation, job etc., so as to deprive him of subsistence allowance. Petitioner 4'//v 20 Court and the petitioner himself who being and a person interested in the outc_ome;'of'the»rdesolutiori,' could not have participated in the also 'i to be noticed that four persvonsldare have been absent at the meeting held resolution has been passed sanction_irig to petitioner. The signaturesgof thesej at the meeting are not forthcomindgpehxcept to above. Hence, for these relied upon by the petitionefu_"to'VVhis rescue in either of the situations //13. has been contended that DRBF is a legalmentity, it is to be noticed that petitioner is of DRBF Trust nor he is governed by the se:rvice.~~cor1d.itions of DRBF. On the other hand, he is governed by the service conditions of the Corporation, admittedly when he is drawing salary from the Corporation 'including all other benefits. Since petitioner was paid salary C from the Corporation he was not entitled to any remuneration from DRBF and to stave off the charge levelled against him he has deviced the theory of resolution having been passed by 'V I\) I\) on deputation to the DRBF Trust, petitioner be an employee of the Corporation.
15. Though it is contended ordAer.v0f has no nexus to the ArticlesVg:'"of_pCharg_es .ari.d "such enquiry proceedings is bad inlaw, 'c'annot«"be.. accepted for the reasons assigned hereéiilafterzv f Theiorder dated 16.8.1997 (Annexure--Pl) came _.to- i:Ss:ued.j'.' it has been stated that mana'gement'iih.a«s_» 3 report from the office of Deputy Comrnissioner (North Division), Bangalore that petitioner was _V_undel1' custody for more than 48 hours and Regulation 21 is attracted and as such under suspension. The Articles of Charges iss'ued,__'to-petitioner relates to withdrawal of the amount from illegally and unauthorisedly, which fund is solely " ,,,gfor.'.z~*'retired employees and dependents of the deceased ___ernployees, thereby attracting Regulation 3 of KSRTC (C & D) Regulations which reads as under:
V 23 "3. General -- (1) Every Corporation servant shall at all times:-- C V (1) maintain absolute integrity;_....__s"
(ii) maintain devotion to duty _' _ (111) do nothing which is "oft Corporation servant , I '
16. It has been contended that' order being based on a report g3':f...r;he petitioner was under detention for__ and thereby Regulation order of suspension itself having-:j_b'e:en:""'setFas'i.de.:"i'inV":§Crl.P.No.238/1997, the very founciflatiloni gets extinguished and as such of Charges issued also has to be as 'extinguished. Even if such A contention is itkvvouldwnot erase the charge levelled against the pct_itior1é*:V,iV_ the withdrawal of the amount unauthorisedly and illegally from DRBF Fund during the period of suspension remains as such attracting Regulation No.3.
all acts of misconduct by an employee during the "period of suspension would not become legitimate merely because suspension order is bad in law. At the most, the suspension order may go but not the illegal act done during 4/