Karnataka High Court
North-East Karnataka Road Transport ... vs C.K. Dyamappa on 21 October, 2006
Equivalent citations: ILR2007KAR590
Author: S. Abdul Nazeer
Bench: S. Abdul Nazeer
ORDER S. Abdul Nazeer, J.
1. This Writ Petition is directed against the order of the Industrial Tribunal, Hubli dated 25.9,2001 in I.D. No. 18/2001 whereby the Industrial Tribunal has directed reinstatement of the respondent/workman into service with 30% back-wages from 22.9.1993 till the date of reinstatement.
2. The respondent had been working as a Conductor with the petitioner/ Corporation. Disciplinary Proceedings were initiated against him and it is alleged that when the bus was checked on 8.11.1983, the checking squad found an excess cash of Rs. 48/- with him. He denied the charge. A regular domestic enquiry was ordered in which the Enquiry Officer found that charge is proved. The enquiry report was accepted by the Corporation and the respondent was dismissed from service on 26.6.1985. The respondent raised dispute before the Conciliation Officer in the year 1987-88. The Conciliation Officer forwarded the factual report on 27.8.1988 to the government, which in turn referred the dispute to the Labour Court in Ref. No. 99/1993. The case was transferred from, the Labour Court to the Indus trial Tribunal, Hubli in the year 2001 wherein it is numbered as I.D. No. 18/2001. The Industrial Tribunal found that the enquiry was not fair and proper. The Corporation did not lead any evidence before the Industrial Tribunal. The Industrial Tribunal has raised two issues on the basis of the pleadings, which are as follows:
1. Whether the domestic enquiry conducted by the Management is fair and proper?
2. Whether the management of KSRTC, Bellary Division, Bellary is justified in dismissing from the services of the 1st party Sri K. Dyamappa w.e.f.26.6.1965?
3. If not, for what reliefs the 1st party workman is entitled to?
3. The Industrial Tribunal has answered the first issue in the negative, The finding on the second issue waft also in the negative and against the Corporation, Consequently, the aforesaid award was passed,
4. Learned Counsel for the Corporation would argue that there is a long delay of 8 years in raising the dispute. It is contended that no explanation has been offered for the delay. On the other hand, the learned Counsel for the respondent submits that there is no delay at all. The factual report was sent by the Conciliation Officer to the government in the year 1987-88 itself. He submits that though the factual report was sent to the government as above, the government has referred the dispute to the Labour Court only in the year 1993. The respondent cannot be found fault with for the delay in referring the matter to the Industrial Tribunal by the State Government. It is further argued that the Corporation has not adduced any evidence before the Industrial Tribunal justifying the order of dismissal. Therefore, the Corporation has to suffer the consequences.
5. It is not in dispute that the respondent/workman was dismissed from service on 26.6.1985. A copy of the factual report produced by the learned Counsel for the respondent clearly discloses that it was sent in the year 1987-88. In other words, within one year from the date of dismissal, the respondent has made an application before the Labour Officer, Bellary to take up the matter in conciliation. The petitioner has not raised any objection regarding delay before the Industrial Tribunal. It is clear that the respondent has raised the industrial dispute within a reasonable time. The State Government has taken a long time to refer the dispute for adjudication. The time taken by the Government in conciliation cannot be taken into account for determining the period of delay. A Division Bench of this Court in A.G. Chandrappagol v. The Assistant Executive Engineer, Ghataprabha Right Bank Canal Construction, Sub-Division-1, Hidkal, Belgaum District reported in 2004 (1) KLJ 353 has held as under:
The period of delay to be considered to decide whether a claim is stale or not is the period between the date of alleged termination and the date on which the process of conciliation/reference is set in motion by or on behalf of the workman. The period spent in conciliation and in the process of making the reference will not be taken into account fir determining the period of delay.
Therefore, the contention that the respondent has raised the dispute after long lapse of time cannot be accepted and it is accordingly rejected.
6. As stated above, the Labour Court has held that the domestic enquiry held by the Corporation was not fair and proper. Admittedly, the Corporation has not adduced any evidence justifying the order of dismissal. It is settled that where the employer has failed to make an enquiry before imposing a major punishment or on the enquiry, which has been held as not proper or fair, the whole issue is at large before the Labour Court. The employer would have to justify on facts that punishment imposed was proper. In Workmen of Firestone Tyre and Rubber Co. of India Pvt. Ltd. v. the Management and Ors. AIR 1973 SC 1237 it has been held thus:
Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima Jade case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the later, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases the point about the exercise of managerial junctions does not arise at all A case of defective enquiry stands on the same footing as no enquiry.
7. The Apex court in Neeta Kaptish v. Presiding Officer, Labour Court has held as follows:
Para 26: The record pertaining to the domestic enquiry would not constitute "Fresh evidence" as those proceedings have already been found by the Labour Court to be defective. Such record would also not constitute 'material on record", as contended by the counsel for the respondent within the meaning of Section 11-A at the enquiry proceedings, on being found to be bad, have to be ignored altogether, The proceedings of the domestic enquiry could be, and, were, in fact, retted upon by the Management for the limited purpose of showing at the preliminary stage that the action taken against the appellant was just and proper and that full opportunity of hearing was given to her in consonance with the principles of natural justice. This contention has not been accepted by the Labour Court and the enquiry has been held to be bad. In view of the nature of objections raised by the appellant, the record of enquiry held by the Management ceased to be "material on record' within the meaning of Section 11-A of the Act and the only course open to the Management was to justify its action by leading fresh evidence as required by the Labour Court. If such evidence has not been led, the Management has to suffer the consequences.
8. It is clear from the above decision that the records of the domestic enquiry do not constitute 'material on record' or fresh evidence' as those proceedings are found to be defective. The Management has not let in any evidence before the Industrial Tribunal. Therefore, the Management has to suffer the consequences. Though the Industrial Tribunal has found that the enquiry held is not fair and proper, it has not granted any back-wages from the date of dismissal till the date of reference. Even from the date of reference only 30% of the back-wages has been granted. Having regard to the facts and circumstances of this case, in my view, the order of the Industrial Tribunal does not call for interference.
Accordingly, the writ petition is dismissed. No costs.