Karnataka High Court
The Divisional Controller vs Sri T R Ramesh on 13 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 13th DAY OF AUGUST, 2014
BEFORE
THE HON'BLE MR.JUSTICE S.ABDUL NAZEER
WRIT PETITION No.43828 OF 2012 (L-KSRTC)
BETWEEN:
THE DIVISIONAL CONTROLLER,
AND THE DISCIPLINARY AUTHORITY
KSRTC, DAVANAGERE DIVISION
DAVANAGERE.
REP. BY CHIEF LAW OFFICER
K.S.R.T.C.
BANGALORE - 27.
... PETITIONER
(BY SRI K.S.BHARATH KUMAR, ADV.)
AND
SRI.T.R.RAMESH
RETIRED CONDUCTOR, NO.2243
SHIMOGA DEPOT
KSRTC, DAVANAGERE DIVISION
DAVANAGERE - 570 706.
.... RESPONDENT
(BY SRI S.P.RAMESHA, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
CALL FOR THE RECORDS ON THE FILE OF COURT OF THE
PRESIDING OFFICER INDUSTRIAL TRIBUNAL AT HUBLI IN
RESPECT OF ID.NO.386/09 VIDE ANN-E AND QUASH THE
AWARD AT ANN-E, MADE IN ID.NO.386/09 DT.14.12.11
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PASSED BY THE PRESIDING OFFICER, INDUSTRIAL
TRIBUNAL HUBLI, VIDE ANN-E AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT PASSED
THE FOLLOWING:
ORDER
This writ petition is directed against the award in I.D.No.386/2009 dated 14-12-2011 on the file of the Industrial Tribunal, Hubli.
2. The respondent was working in the establishment of the petitioner-Corporation as a conductor. Disciplinary proceedings was initiated against him and it was alleged that he remained unauthorisedly absent from 06-03-2001 to 02-08-2001 and thereby caused inconvenience in the day-to-day functioning of the depot. After holding an enquiry, the Disciplinary Authority has passed an order of punishment dated 17-05-2002 withholding one increment for a period of four years without cumulative effect.
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3. In the year 2009, the petitioner made an application for conciliation of the matter. Since the conciliation failed, the matter was referred to the Industrial Tribunal at Hubli for adjudication, wherein it was numbered as ID No.386/2009. The respondent workman filed the claim statement. The Corporation filed its statement of objections. The parties have led their evidence in support of their respective contentions. On appreciation of the materials on record, the Tribunal has modified the order of punishment by withholding one increment for a period of one year without cumulative effect.
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 Labour Court, Tribunal or National Tribunal for adjudication and in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it 5 may, by its 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 - E dated 14-12-2011 in I.D.No.386/2009 insofar as reduction of punishment is concerned, is hereby quashed. No costs.
Sd/-
JUDGE VMB