Karnataka High Court
The Divisional Controller vs T M Gurumurthy on 9 February, 2017
Author: G.Narendar
Bench: G.Narendar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE G.NARENDAR
W. P.No.493/2013 (L-KSRTC)
BETWEEN
THE DIVISIONAL CONTROLLER
KSRTC DAVANAGERE DIVISION
DAVANGERE.
REP. BY CHIEF LAW OFFICER
K.S.R.T.C. BANGALORE. ... PETITIONER
(BY SRI. HAREESH BHANDARY T-ADV)
AND
T.M. GURUMURTHY
OCCUPATION:CONDUCTOR NO.941
DAVANAGERE DEPOT, H.NO.3680/15
NEAR MEDICAL BOYS HOSTEL
HOUSING BOARD COLONY
M.C.C. "B" BLOCK
DAVANAGERE. ... RESPONDENT
(BY SRI. S.P. RAMESH-ADV)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER AT ANNEXURE-E MADE IN I.D. NO.192/2009 DATED
5.7.2011 PASSED BY THE INDUSTRIAL TRIBUNAL AT HUBLI.
THIS WP COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
2
ORDER
Matter was listed on 8.2.2017. On that day, the learned counsel for the petitioner and the respondent were heard and the petition was directed to be listed today for clarification and dictating of orders.
2. The undisputed facts in brief are that the petitioner is the employer and the respondent is an employee, who is employed as a conductor. That on 18.3.1990 while the respondent was performing his duties in the bus bearing Registration No.3544 plying on Hubli- Nippani Route, the bus was checked by the traveling checking officials of the petitioner-establishment.
3. At the time of checking by the officials, the respondent was found to be in possession of excess cash of Rs.20-20p. Based on the report of the checking officials, the disciplinary authority issued Articles of Charge and the respondent omitted to furnish any reply to the Articles of charge dated 3.4.1990. In view of the said omission the disciplinary authority proceeded to pass an order on 26.7.1990 and thereby imposed the punishment of 3 reduction of pay-scale of one incremental stage for a period of one year and that the punishment shall have the effect of postponing the future increments of the respondent. The respondent was served with a copy of the order imposing punishment.
4. The respondent sought for reference of the dispute under the provisions of Section 10(1)(d) of the Industrial Disputes Act, 1947 (for short hereinafter referred to as 'the Act') and accordingly filed the claim statement. The Corporation also submitted its objections and the Industrial Tribunal after affording opportunity to both the parties, was pleased to pass the order dated 5.7.2011 whereby it modified the punishment to one of withholding of one increment for the year 1990 for a period of one year with cumulative effect. The Tribunal intervened with the punishment imposed on the premise that the same is disproportionate to the offence alleged. Aggrieved by the same, the petitioner is before this Court.
5. It is contended on behalf of the petitioner that the Tribunal committed a serious error by entertaining the 4 dispute. The learned counsel for the petitioner would vehemently contend that the Tribunal has lost sight of the fact of the enormous and unexplained delay and that the reference is vitiated by extraordinary delay and laches and would submit that the same constitute a threshold bar and the Tribunal ought not to have been interfered with the order passed by the Disciplinary Authority.
6. Learned counsel for the petitioner would further contend that the Tribunal having found that the enquiry was conducted in fair and proper manner, it ought not to have exercised the jurisdiction with the punishment imposed. In this regard the learned counsel would rely on a ruling of the Apex Court in the case of South Indian Cashew Factories Workers' Union - vs - Kerala State Cashew Development Corpn. Ltd. And Others reported in (2006) 5 Supreme Court Cases 201. Petitioner's counsel would also rely upon another judgment of this Court rendered in W.P.No.61067/2014 disposed off on 20.1.2016 whereby this Court has reiterated the law laid by the Apex Court holding that the Tribunal has no jurisdiction to 5 exercise power under the provisions of Section 11A of the Act to substitute the punishment after it had found that the misconduct alleged against the workman was found established during the course of enquiry by the disciplinary authority.
7. Per contra, the learned counsel for the respondent would contend that imposition of a major punishment without holding enquiry is not sustainable and in this regard he would place reliance on a ruling of this Court reported in 1997(4) Kar.L.J. 524 (Hubert Lobo - vs - The Presiding Officer, Labour Court, Mangalore and Others). He would submit that the onus of conducting the enquiry prior to imposing punishment was on the petitioner and the petitioner having failed to conduct an enquiry, it was not open to the petitioner to impose the major punishment.
8. In the above factual matrix the points for consideration by this Court are, whether the Industrial Tribunal has committed an error on re-appreciation of evidence and whether the Tribunal was right in 6 entertaining the reference and granting relief in the light of the extraordinary and unexplained delay and laches?
9. As both the points could be answered jointly, both are taken up for consideration together.
10. As regards the contention of the petitioner that the Tribunal was in error in modifying the punishment after having found the enquiry to be just and proper, requires to be rejected for the following reasons.
11. In the instant case it is an admitted case of the petitioner that no enquiry was conducted and that Articles of Charges were issued and as no reply was received by the delinquent workman, the disciplinary authority proposed and imposed the punishment.
12. It is not disputed that the punishment imposed is a major punishment and as per the law laid down by this Court, the punishment of imposing reduction of pay with cumulative effect is a punishment which is continuing throughout the carrier of the workman and hence there can be no doubt that it is a major punishment and having 7 proposed to impose a major punishment, it was incumbent upon the petitioner to have conducted an enquiry and ought to have demonstrated the charges in a manner known to law. In the instant case, admittedly, no enquiry was conducted and the parties have let in evidence before the Tribunal. Hence, the rulings relied upon by the petitioner's counsel are inapplicable to the facts and circumstances of the case. Hence, the first point is answered against the petitioner.
13. The other limb of argument that is canvassed is that the Reference itself is vitiated of delay and laches. The learned counsel for the respondent would vehemently admit that there was no impediment on the respondent to have sought a reference immediately after the imposition of the punishment. The other important aspect of the case that has been overlooked by the Industrial Tribunal is the fact that the workman has not denied the charges against him at the earliest point of time.
14. It is not the case of the workman that he is not in receipt of the Articles of charge or the order imposing 8 penalty. The workman has not protested the charges alleged against him and has, in fact, by his silence acquiesced to the same. The acquiesance to the charge alone would not be sufficient to deny the respondent the remedy and it ought not to be taken that the respondent has also acquiesced with regard to the punishment imposed on him.
15. It is not in dispute that the order of punishment was imposed on the respondent way-back in the year 1990 itself and thereafter he remained a mute spectator for almost a period of two decades, to be more specific 19 years. Thereafter he deemed it fit to wake up and to lay challenge to the same. The Hon'ble Apex Court has in a catena of cases laid down the law that delay and laches which are unexplained are by themselves constituents which are capable of defeating even vested rights.
16. In the instant case the respondent has not even uttered a whisper in respect of the punishment imposed. Though limitation is inapplicable to the ID Act, yet it is incumbent upon a litigant to explain any delay and laches 9 which are vitiating factors. Between 1990-2009, much water has flown. The witnesses would have vanished, the material documents would have become untraceable and there is also strong possibility of witnesses having forgotten the incident or witnesses having retired etc. and such other innumerable reasons which would act as an impediment both for the disciplinary authority and the employer to demonstrate the allegations. The person asserting his right is required to be diligent and vigilant in protesting the violation of his rights. A perusal of the claim statement reveals that there is not even a whisper of an excuse for the delay and laches. Hence, this Court is constrained to presume that by the delay and laches, the respondent has acquiesced and accepted the punishment imposed and has admitted his guilt and hence acquiesced to the punishment imposed and did not deem it fit to lay challenge to the same and he was not aggrieved by the punishment imposed.
17. In view of the above discussion, the second point is answered in favour of the petitioner and it is held that 10 the Industrial Tribunal erred in not taking note of the vitiating factors of delay and laches and also the acquiescence by the workman and hence in the considered opinion of this Court, the order impugned herein warrants interference at the hands of this Court.
18. Accordingly, the writ petition is allowed. The impugned order passed by the Industrial Tribunal dated 5.7.2011 in I.D.No.192/2009 is set aside. The punishment imposed by the Disciplinary Authority stands confirmed.
Sd/-
JUDGE rs