Karnataka High Court
Sri M Eshwar vs The Management Of Ksrtc on 12 March, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
bPCOUr: ¥ OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COU IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 127 DAY OF MARCH 2012 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAP BETWEEN: Sri. M. Eshwar, S/o. Sri. Mallaiah Aged about 40 years, Residing at C/o. Sri. Devaraia Ure. Kanakapura 562 W7 _ - . ..PETITIONER (By Sri. Manjula N. Kulkarni Advocate) AND: The Management of KSRTC Bangalore Rural Division -- - Mysore Road, . Bangalore. 560 026 Repicsented by its -- _. Divisional Controller .. .RESPONDENT ws (By Sri. HR. Renuka, Advocate] 7 ~ THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA WITH A ._.. PRAYEP TO QUASH THE AWARD DATED 26.02.2011 - PASSED BY THE 18T ADDL. LABOUR COURT, - BANGALORE IN REFERENCE NO.1/07, VIDE ANNEX-E Bo WHICH IS ARBITRARY, ILLEGAL AND AGAINST THE PROVISIONS OF THE ID ACT. HeLOL & v OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COU! THIS PETITION COMING ON FOR PRELIMINARY HEARING 'B' GROUP THIS DAY THE COURT MADE THE FOLLOWING: ORDER
Petitioner has called in question award passed by a 26.02.2011 in reference No. 3/2007, whercunder the reference made has been answered against the petitioner-workman and reference hae been rejected.
2. Heard Smt. Sees! | 'Kulkarni, learned counsel aopearing for petitioner and Smt. H.R. Renuka, learned counsel appearing for respondent-corporation. Perused the. lampagned award as algo annexures appended to the writ petition.
: _ 3. | | Petitioner herei1 was appointed as a » conductor in the year 1992 and during 1999, he was 7 working at Kanakapura Depot. On 17.04.1999 he was 7 os, conducting the bus and discharging his duty which was "in the route of Kanakapum to Salabanni and on the
- said date check was conducted by squad and it waa found that petitioner had failed to;
4COURT OF KARNATAKAHIGH COURT-QF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT ij} Non-issue of tickets to 9 passengera despite collecting fare of f 3/- each.
ii) Non-issue of tickets to 4 passengera . deapite collecting 4/- each. SS Re-issue of 3 tickets of 4/-each. - | Ss £ Failed to collect luggage fare from 3 passengers for vy} --- Had failed to close the oiage entry deopite reaching the stage. nmo.5. |
4. "A reply came to be issued to the said charge sheet and i ir? the. Domestic Enquiry charges were held to have been prow 'Second show cause notice waa issued and Disciplinary "Authority after considermg the reply | submitted, dismissed him from service by order dated ON 27.06.2008,
5. "Thereafter petitioner through the union oo raised a dispute before Labour cum Conciliation Officer : an appropriate Government by order dated 08.01.2007 referred the dispute for adjudication under Section 1Q{1}(C) of the Industrial Disputes Act, 1947. Issue he OURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT UF KRAKNAIARA FIGM COURT UP RARNATARA FIRST CUUnt referred the dispute for adjudication under Section 1Q{(1)(C} of the Industrial Disputes Act, 1947. Issue Labour Court by order dated 22. 40, 2009 eld 'the | Domestic Enquiry as conducted by the corporation | was. not fair and proper and directed the matier to be listed | for evidence on merits, Thereafter the rea pondent- corporation has examined one witness by name Sri Cc. Rajannea as MWS, . establishment. 'gupervisor who produced the, reconte. and workman also tendered his further evidence | on merits "and thereafter Labour Court after evaluating. the evidence tendered by the parties both oral and written, held that management has established the misconduct alleged agaisnt the workman and. further held that punishment imposed on the petitioner v was proportionate to the proved misconduct.
oe = : Accordingly rejected the reference. It is this order, which is impugned i in the present writ petition.
6. It i the contention of Smt. Manjula Kulkarm, learned counsel for petitioner that in the Qe PCs Rt) OF KARNATAKA HIGH COURT .OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR offence memo issued to petitioner the number of passengers is shown as 108 whereas im the Articles of charge it ia mentioned as 56 and on account of this inconsistency, prejudice is caused to the Seen the offence memo tallied with the: number of tickets in. the waybill which is also 108 end aS. such Articles of :
charge is baseless and contrary to the facts. She would ¢laborate her submission by contending that once Labour Court olds that charges levelled against the petitioner-worianan, in 'the Domestic Enquiry conducted was not fair and proper, it cught to have proceeded to examine the" | claim of corporation with great cirotumepection, inasmuch as the Officer, who checked | the: vehicle. was not exannned amd witness MW3 "examined Ww was only a person who produced records and whe had uo personal knowledge with regard to the _ : alleged incident and as auch Labour Court ought to have eid that charges levelled against the petitioner was not _-- proved. Even otherwise by way of alternate submission she contends that Labour Court erred in not invoking ia COURT OF KARNATAKAHIGH COURT-OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT ae such on these grounds she seeks for setting aside the award of Labour Court as well as the order of punishment imposed on the petitioner. Ss
7. Per contra Smt. H.R. Renmin, learned counsel appearmg for corporation would suppart the award passed by the Labour Court and contend 'that improper mentioning of number of passengere has no bearing whatsoever on the charges: alleged against the petitioner and as euch. she: submits that contention raised by the learned counsel for petitioner ia liable to be rejected. 'She would also contend thet petitioner hae admitted i in his cross-examination that he has affixed his signature. to Exhibit. MS as M5A and in M6 as MGA . namely, statements of passengers recorded by the | . | checking 6 equad on 17.04.1999, whereunder petitioner "has affixed his signature which in effect means that he has not disputed the fact of checking on the said date
- ~~ and ea such she contends that there is no merit in the contention now raised. She would also further contend
- that petitioner has not raised any plea either in the claim statement, or in the evidence about affixing the aC i Olean T OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUF that petitioner has not raised any plea either in the claim statement, or in the evidence about affncing the signature on blank papers and only in the cross examination he has raised euch a plea which was rightly not accepted by the Labour Court. She would further :
contend that Disciplinary Authority by taleing 'inte :
consideration the past misccnducts of 73. incidents into consideration dismissed the. petitioner from service and Labour Court also took note of the fact about admission by the workmen in his crose-examination about the subsequerit misconduct also which took place after the date of the incident called | in question till the order of diamiseal came to be passed and as such she submits that the order of. the Disciplinary Authority was rightly affirmed by 'Labour Court which does not call for % interference, on these grounds she prays for dismissal of the weit t petition.
7 3 Thia court being conscious of the fact that reappreciation of evidence or reevaluating 9 or reassessing the evidence is limited while exercising the jurisdiction under Article 226 & 227 of the Constitution a of India, the contentions raised by the learned counsel for petitioner is examined keeping in mind the contours within which this Court can exercise of jurisdiction . ws,
9. The prime thrust of arguments advanced by _ the learned counsel for petitioner is that number of passengers depicted in the offence memo is "108, where | ag in the Articles of change it i 56 and if the offence is accepted and taken into > consideration, it would tally with the waybill and: 25 such 'there cannot be any offence. The charges levelled against the petitioner is non-issue of 'chet to s passengers despite collecting fare of €3/- eas ch and for 4 passengers of % 4/- each as also reissue of 3 'tickets of %4/- each. The learned
-_ counsel was been unable to demonstrate in the Domestic a 'Enquiry, Labour Court as well as before this Court as to 'how the number of passengers, if taken either as 56 or Bs 198 would materially alter the Articles of charges oo which would have any bearing on his defence. As rightly observed by Labour Court except in the offence memo OURT OF KARNATAKAHIGH COURT. GF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNAIARA NIGH COURT UF KARNATAKA MGT LUURI fied tw depicting that number of passengers as 108, in all other documents produced by the management before Labour he 4 Our TY OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNAIAKA HIGH COUR Court, number of passengers has been shown asa 56.
Learned counsel for petitioner has made available the said offence memo at Exhibit M1 dated peer it is shown as 108 passengers." This 'obviously "tin reference to the waybill entries, In the waybill the | number of passengers who have been issved with the tickets has been shown as 108. "Irrespective of the fact as whether 108 passengers travelled an the bue on the said date or otherwise the' fact thet 'Petitioner failed to issue tickets Bs per Articles. of F charg , would go to show that 't would have ne bearing whatsoever on the contention. now "raised by the learned counsel for petitioner. > Petitioner-workman does not dispute that checking squad detected the irregularity at the time of "checking. lp fact he admits in his cross-examination dated 20. Li. 2010 that checking squad conducted the chek on the said date and he has further admitted that tickets have been aeized from him. In fact even in the waybill Exhibit -W6A and W6B the checking squad had ye at erxiorsed about the number of ticketleas passengers which is also admittedly accepted by the petitioner-- workman in his cross-examination. However, - the contention that was raised was he has affixed has signature on blank papers and ea rightly contended by :
Smt.H.R. Renuka, learned counsel aypearing "for resporxient, such a plea was » not put forward even in the claim statement or in his examination in chief This would clearly go to show 'that 'the > petitioner has attempted to improvise his cave. 'Petitioner is not a novice and. he. had already putin about 8 years of service as on the date of checking was done. In reply to the Articles of charge or when the second show cause notice was fsaued, "petitioner did not raise such a plea contending that his signatures were taken on blank n papera. On the other hand, in the cross-examination dated 20. 11. 2010 at paragraph 9 & 10 he has | : unequivocally admitted that he has affixed his signature "Gn Exhibit M4 and M6C ie, penalty receipt and waybill.
_-. 'Thus, contention of the petitioner now raised cannot be OURT Of KARNATAKAHIGH COURT. OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT UF RARNATARA FIOM COURT WE RARINATANA Fart ewan ~ a accepted. a ltGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO ' ii
10. In se far as the contention raised by the learned counsel for petitioner that on account" af: non examination of the checking officials the management | has failed to prove the charges levelled "ageinat the petitioner does not merit acceptance, inasmuch os the entire case of the corporation resis on "documentary evidence, When there is 'abundant documentary evidence available on recard, any amount of oral evidence even. if tendered contrary to | it the same does not require tw be eschewed ni view of Section 92 of the Evidence Act and to the said extent oral evidence gets excluded. it is not the case of the petitioner-workman that on account of non-examination of the checking a officials. before the Labour Court, it has resulted in BL prejudice 'ox. it would take away the documentary eviderice.ot the documentary evidetice is cotitrary to the os factual aspect. The checking by the squad is admitted " aa also the signatures found on Exhibit M4 and M6C by . ; the petitioner himeelf as observed hereinabove and only during croas-examination he has put up a plea that he has signed blank forms, which is not accepted by Labour he HSmOL OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COU! 12 Court and rightly so. It is also found by Labour Court on evaluation of evidence that petitioner had failed to collect the luggage fare and he had failed to close the stage entry despite reaching etage No. 4. "Penalty | imposed to the passengers after "recording their .
atatemert as per Exhibit MSA and MSB, hereunder petitioner has also affixed hie signature without any demur would go to show that charges levelled against the petitioner are proved. In that view, Tdo not find any good ground to interfere with the finding recorded by the Labour Court, |
11. Smi. Manjula Kuikerni, has contended that punishment imposed on petitioner is disproportionate to the proved misconduct. It is to be noticed that where the | ™ ehuarge against the employee is of not issuing tickets to the passsngers was held proved in a Domestic Enquiry 7 on the. basis of the etatement recorded from the Po, passengers and an order of dismissal is passed taking into 'consideration the past history where the employee was imposed with minor punishments and there being rio improvement scope of interference is limited. Labour Bt PF OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUF 13 Court has taken into consideration the law laid down by the Apex Court in various judgments as extracted an its award at paragraph 20 and has refused to" invoke Section 11-A for modifying the order of punishment by assigning reasons in detail which are well reasoned. As :
noticed by the Labour Court 'workman himself has admitted in his cross-examination that 1 he wae 'imposed | with minor punishments, on earlice occasions was also a fact taken into consideration oy 'the Disciplinary Authority while Passing: the rder' 'of dismissal on 27.06.2005. i is. submitted ty the learned counsel appearing for the corporation that on 101 earlier occasions "petitioner hack 'been nnposed with mnnor penalties which would 'also go to show that petitioner | had 'become incorrigible end chances of improvement was bleak. "There is no improvement whatsoever in his future conduct which fact swayed with the Disciplmary Authority to impose the punishment of dismissal and "Labour Court has rightly refrained iteelf from exercising ds power under 11-A to modify or vary the order of dismiseal. I did not find any good ground to interfere iv In the i4 with the finding recorded by the Labour Court.
result writ petition faile and it is hereby dismissed. .
DR "
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