Karnataka High Court
The Divisional Controller vs Sri Mallikarjunaiah on 10 January, 2017
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY 2017
BEFORE
HON' BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION No.31706/2013(L-KSRTC)
C/w
WRIT PETITION No.44386/2013
IN WRIT PETITION No.31706/2013
BETWEEN:
THE DIVISIONAL CONTROLLER,
K.S.R.T.C.,
DAVANAGERE DIVISION,
HEREIN REPRESENTED BY
THE CHIEF LAW OFFICER,
K.S.R.T.C., CENTRAL OFFICES,
K.H.ROAD, SHANTHI NAGAR,
BENGALURU -560 027.
... PETITIONER
(BY SRI K.S. ABHIJITH, ADVOCATE FOR
SRI B.L.SANJEEV, ADVOCATE)
AND:
SRI MALLIKARJUNAIAH,
S/O LATE KARIBASAIAH,
AGE 44 YEARS,
R/O MOUNESHWAR COLONY,
2
NITHUVALLI, NANDA GOKUL NILAYA,
DAVANAGERE -577002.
... RESPONDENT
(BY SRI.RAJASHEKHAR.K, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
AWARD DATED 07.05.2012 PASSED BY THE INDUSTRIAL
TRIBUNAL, HUBLI, IN I.D.NO.195/2008 PRODUCED AT
ANNEXURE-C AND ETC.,
IN WRIT PETITION No.44386/2013
BETWEEN:
SRI MALLIKARJUNAIAH,
S/O LATE KARIBASAYYA
AGED ABOUT 48 YEARS,
CONDUCTOR NO.165,
DAVANAGEREDEPOT, K.S.R.T.C.,
R/O MOUNEWHWAR COLONY,
NITTUVALLI, NANDAGOKUL NILAYA,
DAVANAGERE -577004.
PRESENTLY RESIDING AT
SARWATHI BADAVANE, 1ST CROSS,
BEHIND K.S.S. HIGH SCHOOL,
DAVANAGERE DIST, DAVANAGERE.
... PETITIONER
(BY SRI.RAJASHEKHAR.K, ADVOCATE)
AND:
THE DIVISIONAL CONTROLLER,
K.S.R.T.C., DAVANAGERE DIVISION,
3
DAVANAGERE-577004.
... RESPONDENT
(BY SRI K.S. ABHIJITH, ADVOCATE FOR
SRI B.L.SANJEEV, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
AWARD PASSED BY THE INDUSTRIAL TRIBUNAL, HUBLI IN I.D.
NO.195 OF 2008 DATED 07.05.2012 (VIDE ANNEXURE-A) ONLY
TO THE EXTENT OF THE AWARD THAT ONE INCREMENT OF
THE WORKMAN OF THE YEAR 1995 BE WITHHOLD FOR A
PERIOD OF THE ONE YEAR ONLY WITHOUT CUMULATIVE
EFFECT WHICH SHALL NOT HAVE THE EFFECT OF
POSTPONING THE FUTURE INCREMENTS OF THE WORKMAN.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING
ORDER
The Corporation filed Writ Petition No.31706/2013 and the Workman filed W.P.No.44386/2013 against the award dated 07.05.2012 made in I.D.No.195/2008 on the file of the Industrial Tribunal, Hubballi, allowing the reference in part, by setting aside the impugned order passed by the Disciplinary Authority dated 19.07.1995 reducing the pay of the Workman by one incremental stage with cumulative 4 effect. Further the punishment was modified to withholding of one increment of the year 1995 for a period of one year only without cumulative effect which shall not have the effect of postponing the future increments of the workman. It was ordered that the workman is entitled to the monetary benefits in tune with the modified order of punishment and the Management was directed to work out the admissible monetary benefits without any interest within six months from the date of publication of the award.
2. It is the case of the parties to the proceedings that the workman was working as a Conductor under the Corporation and while discharging his duties on 20.05.1995 in the bus bearing No.F-70 plying on route from Nandigudi to Davanagere, the checking officials of the Corporation when checked the bus found that the workman had not issued tickets to six passengers and failed to collect fare amount of 5 `2.25/- from each of the six passengers, who were traveling from Kadanayakanahalli to Banuvalli. On the basis of the report of the checking officials, the Disciplinary Authority issued article of charges to the Workman. As the workman did not submit his reply, without holding any enquiry the Disciplinary Authority proceeded to pass an order of punishment on 19.07.1995 reducing the pay of the workman by one incremental stage with cumulative effect.
3. Therefore, the Workman approached Conciliation Officer. On failure of the Conciliation proceedings, the State Government made reference under Section 11A of the Industrial Disputes Act, 1947 on 05.11.2008. The Tribunal, after adjudication of the dispute, by the impugned award dated 07.05.2012, set-aside the order of punishment passed by the Disciplinary Authority and modified to withholding of one increment of the year 1995 for a period of one year only 6 without cumulative effect which shall not have the effect of postponing the future increments of the workman. The Corporation aggrieved by the award of the Tribunal modifying the order of punishment, has preferred W.P.No.31706/2013. The workman, aggrieved by the award of the Tribunal only to the extent of withholding of one increment of the year 1995 for a period of one year only without cumulative effect which shall not have the effect of postponing the future increments has filed writ petition no. 44386/2013.
4. I have heard the learned counsel for the parties to the lis.
5. Shri Abhijith, learned Counsel for Shri B.L.Sanjeev, learned Counsel appearing for the Corporation vehemently contended that under Section 11A of the Industrial Disputes Act, the Tribunal has no jurisdiction to modify the punishment imposed by the Disciplinary Authority and that 7 there was inordinate delay of about 13 years in raising the dispute and the same has not been considered by the Tribunal. He further contended that, when the departmental enquiry was not held before imposing the punishment and the opportunity of being heard was given to both the parties before the Tribunal and both the parties adduced evidence, when the evidence of both the parties are available on record, the Tribunal ought to have decided the case on merits. Though the Tribunal recorded a finding that the misconduct attributed to the Workman stands established, the Tribunal ought not to have interfered with the punishment imposed. In support of his contentions, learned counsel relied on the judgment of the Hon'ble Supreme Court in the case of Neeta Kaplish Vs. Presiding Officer, Labour Court and Another reported in (1999) 1 SCC 517 and State of Karnataka and another vs. Ravi Kumar in Civil Appeal No.845/2009 dated 10.02.2009 with regard to delay. The learned counsel 8 also relied on the judgment of the Hon'ble Supreme Court in the case of General Secretary, South Indian Cashew Factories Workers' Union vs. The Managing Director, Kerala State Cashew Development Corporation Ltd. and others in Appeal (Civil) No.2521/2000 dated 12.05.2006 with regard to powers of the Tribunal under Section 11A of the Act.
6. Per contra Shri Rajashekhar K, learned counsel appearing for the Workman submits that, before imposing the punishment by the Corporation, no departmental enquiry was conducted. The Tribunal considering the entire materials on record condoned the delay relying upon the dictum of the Hon'ble Supreme Court in the case of Karan Singh vs. Executive Engineer, Haryana State Marketing Board reported in 2008-I LLJ 289 and Kuldeep Singh vs. G.M. Instrument Design Development and Facilities Centre 9 and another reported in 2011 (1) LLJ 615 and the Tribunal ought to have set aside the order of punishment imposed having held that no domestic enquiry was conducted. Therefore, he sought to allow the writ petition filed by the workman and dismiss the writ petition filed by the Corporation. Learned counsel sought to rely on the judgment of this Court in the case of Ankappa Vs. Management of K.S.R.T.C. Bangalore reported in ILR 1996 KAR 3050 to the effect that, in view of Regulation 22(b), the Disciplinary Authority to exercise discretion for dispensing with enquiry for recorded reasons only punishment order not complying with Regulation is unsustainable. He contended that the disciplinary authority has not recorded any reasons as contemplated for dispensation of enquiry. Therefore, the very enquiry initiated is vitiated. Therefore, he sought to allow the writ petition.
10
7. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration is:
"Whether the Tribunal is justified in modifying the punishment imposed by the Disciplinary Authority in the facts and circumstances of the present case?
8. It is not in dispute that the Workman was working as a Conductor under the Corporation and on certain charges, article of Charges was issued. Since he failed to reply the same. The Disciplinary Authority proceeded to pass the order on 19.07.1995 reducing pay of the workman by one incremental stage with cumulative effect without holding proper enquiry and without recording any reasons only on the ground that the workman has not replied to the article of charges. Though this Court in the case of Ankappa Vs. Management of K.S.R.T.C., Bangalore reported in ILR 1996 KAR 3050 held that even in case of minor punishment 11 imposed it is mandatory on the part of the disciplinary authority to record reasons for dispensation of enquiry, the said judgment was rendered on 29.03.1996 subsequent to the punishment imposed by the disciplinary authority on 19.07.1995. Therefore the said judgment is prospective and there was no occasion for the management to follow the said procedure.
9. It is not in dispute that the Corporation proceeded to impose the punishment of reducing the pay of the workman by one increment stage with cumulative effect. The Tribunal, while exercising powers under Section 11A of the Act can interfere only in the case where dispute relates to discharge or dismissal of the workman and not in respect of other punishments. Section 11A of the Industrial Disputes Act, 1947, reads as under:
12
"11A. Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen.- 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 may, by its award, set aside the order of discharge or dismissal and direct re-instatement 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:
Provided that in any proceeding under this section the Labour Court, Tribunal or National 13 Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter."
10. While considering the provisions of Section 11A of the Act, the Hon'ble Supreme Court in the case of General Secretary, South Indian Cashew Factories Workers Union Vs. Managing Director, Kerala State Cashew Development Corporation Ltd., and others reported in AIR 2006 SCC 2208 held 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 enquiry is fair and proper, in the absence of any allegations of victimization or unfair labour practice, the Labour Court has no power to interfere with the 14 punishment imposed. Section 11A of the Act gives ample power to the Labour Court to re- appraise the evidence adduced in the enquiry and also sit in appeal over the decision of the employer in imposing punishment. Section 11A 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 11A in India Iron and Steel Co.Ltd. Vs. Their Workmen [(1958) SCR 667] 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, victimization, unfair labour practice, etc. on the part of management. There is no allegation of unfair labour practice, victimization etc. in this case. The power of the Labour Court in the case. The powers of the Labour Court in the absence of Section 11A is illustrated by this Court in Workmen of Firestone Tyre and 15 Rubber Co. of India (Pvt.) Ltd. Vs. The Management (1973) 1 SCC 813]. When enquiry was conducted fairly and properly, in the absence of any of the allegations of victimization or malafides or unfair labour practice, Labour Court has no power to interfere with the punishment imposed by the management. Since Section 11A is not applicable, Labour Court has no power to re- appraise 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, 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."
11. In the present case, without considering evidence of both parties the Tribunal has recorded a finding that the misconduct attributed against the workman stands 16 established, while interfering with the punishment imposed by the Corporation, exercising powers under Section 11A of the Act which is impermissible under law. When the punishment is imposed by the Disciplinary Authority, Tribunal has to either set aside the punishment in toto or accept in toto. The Tribunal has no power to modify the minor punishment imposed by the Corporation, in view of Section 11A of the Act. The Tribunal without considering the evidence on record has proceeded to pass the impugned award. Therefore the matter requires reconsideration by the Tribunal afresh based on the available evidence on record keeping in mind the powers under Section 11A of the Act. Accordingly, the point raised in the writ petition has to be held in the negative holding that the tribunal is not justified in modifying the punishment order passed by the Disciplinary Authority. 17
12. For the reasons stated above, the writ petitions are allowed. The impugned award dated 07.05.2012 made in I.D.No.195/2008 on the file of the Industrial Tribunal, Hubballi, is quashed. The matter is remanded to the Tribunal for fresh consideration strictly in accordance with law. The Tribunal shall decide the dispute between the parties as expeditiously is possible.
Sd/-
JUDGE em/kcm