Karnataka High Court
Sri C G Rangaprasad vs The Divisional Controller on 8 January, 2024
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NC: 2024:KHC:823
WP No. 27794 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
WRIT PETITION NO. 27794 OF 2018 (L-KSRTC)
BETWEEN:
SRI C G RANGAPRASAD
AGED ABOUT 46 YEARS
S/O GANGAIAH,
R/AT CHIKKAMUDDAGERE
THIPPASANDRA HOBLI,
MAGADI TALUK, RAMANAGARA DISTRICT.
...PETITIONER
(BY SRI. MUKKANNAPPA S B.,ADVOCATE)
AND:
THE DIVISIONAL CONTROLLER
Digitally signed by BENGALURU METROPOLITAN
MAHALAKSHMI B M
Location: HIGH TRANSPORT CORPORATION
COURT OF
KARNATAKA WEST DIVISION, KENGERI BUS STAND,
BENGALURU-560 060.
...RESPONDENT
(BY SMT.H.R. RENUKA., ADVOCATE)
THIS W.P. FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS ON THE FILE OF III ADDITIONAL LABOUR COURT AT
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NC: 2024:KHC:823
WP No. 27794 of 2018
BENGALURU IN I.D.NO.33/2016; QUASH THE IMPUGNED
AWARD DATED 23.4.2018 PASSED BY III ADDITIONAL LABOUR
COURT AT BENGALURU IN I.D.NO.33/2016 VIDE ANNEXURE-J
TO THE W.P. UNDER THE FACTS AND CIRCUMSTANCES OF
THIS CASE; DIRECT THE RESPONDENTS TO REINSTATE THE
PETITIONER INTO SERVICE WITH CONTINUITY OF SERVICE
WITH ALL OTHER CONSEQUENTIAL BENEFITS INCLUDING FULL
BACK WAGES UNDER THE FACTS AND CIRCUMSTANCES OF
THIS CASE.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner - workman is before this Court assailing the order dated 23.04.2018 in ID.No.33/2016 on the file of the III Additional Labour Court, Bengaluru (hereinafter referred to as "the Labour Court" for the sake of convenience), whereby, the claim petition filed by the workman under Section 10(4-A) of the Industrial Disputes Act, 1947 ("ID Act" for short) was dismissed by the Labour Court.
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NC: 2024:KHC:823 WP No. 27794 of 2018
2. The petitioner-workman was working as a driver-cum-conductor of respondent No.2 ("Corporation" for short), while discharging duties in route No.335/M/4 in the bus bearing No.KA-01-F-4659, the checking staff checked the bus and found that the workman has failed to fill up stage 5 entry, there is disproportion towards the tickets issued to the passengers. The Checking Inspectors have taken the possession of the waybills and the ticket books from the petitioner-workman and issued a charge memo to the workman. Articles of charges were framed and the workman submitted the reply to the articles of charges denying the charges levelled against him. The enquiry officer was appointed, enquiry was conducted and held that the workman is guilty of the charges levelled against him. Show-cause notice on the report of the enquiry officer was served on the workman and the workman submitted his reply. The Disciplinary Authority accepted the enquiry report and dismissed the petitioner- workman from service vide order dated 13.07.2016. The petitioner filed claim petition under Section 10(4-A) of the -4- NC: 2024:KHC:823 WP No. 27794 of 2018 ID Act, the Labour Court framed as many as three issues and issue regarding the fairness of domestic enquiry was held in favour of the workman and against the Corporation.
3. Thereafter, the Corporation examined two witnesses as MWs.1 and 2, got marked documents at Exs.M-1 to M- 13 and the workman examined himself as WW.1 and got marked documents at Exs.W-1 to W-9. The Labour Court by the impugned order held that the misconduct levelled against the workman has been proved and consequently, rejected the dispute raised by the workman, against the dismissal and confirmation of the order of dismissal of the workman from service, the present petition is by the workman.
4. Heard Sri. Mukkannappa, learned counsel for the petitioner and Smt. H.R. Renuka, learned counsel for the respondent- Corporation.
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NC: 2024:KHC:823 WP No. 27794 of 2018
5. Learned counsel for the petitioner would contend that the Labour Court having answered the fairness of the enquiry in the negative, the burden heavily lies on the respondent - Corporation to prove the misconduct by adducing cogent and convincing evidence as well as the documentary evidence, the evidence on the part of the Corporation by examining MW.2-Checking Inspector, the Labour Court has ignored the admissions made by MW.2. Further, learned counsel would contend that the Labour Court placing reliance on the evidence of MW.3 and Ex.M-11 has rejected the dispute, which warrants interference. Learned counsel would contend that, at the time of inspection, 38 passengers were in the bus and all the 38 passengers were issued tickets and the tickets were valid upto stage No.5 i.e., Graphite India stop and the workman had not closed the stage 5 in the waybills. The contention of the learned counsel that all the tickets were punched and therefore, the workman had the intention to re-issue the tickets in his possession cannot be accepted and the Labour Court fell in error in -6- NC: 2024:KHC:823 WP No. 27794 of 2018 confirming the order of dismissal. In support of his contentions reliance is placed on the following decisions:
i. The workmen of M/s. Firestone Tyre and Rubber Co. of India P. Ltd. v. The Management and others1 (Firestone) ii. Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) and others2 (Rajinder Kumar Kindra) iii. John Dsouza, Bangalore v. Karnataka State Road Transport Corpn.3 (John Dsouza) iv. Ravindra Shetty v. The Management of Mysore Petro Chemicals Limited, Raichur and another4 (Ravindra Shetty) v. Tripura Gramin Bank and Others v. Tarit Baran Roy and Another5 (Tripura Gramin Bank) vi. Sri Ganeshar Aluminium Factory v. Industrial Tribunal, Madras6 (Sri Ganeshar Aluminium Factory) 1 AIR 1973 Supreme Court 1227 2 AIR 1984 Supreme Court 1805 3 (1998 (2) LLJ 385 4 1999 SCC OnLine Kar 4 5 (2001) 10 Supreme Court Cases 70 6 1982(45) FLR 68 -7- NC: 2024:KHC:823 WP No. 27794 of 2018 vii. Mangat Rai v. Punjab Road Transport Corporation7 (Mangat Rai) viii. Nand Kishore Prasad v. State of Bihar and Others8 (Nand Kishore Prasad)
6. Per contra, learned counsel appearing for the respondent would justify the award of the Labour Court and would contend that the workman was involved in 128 misconduct cases of pilferage and is in the habit of pilfering the revenue of the Corporation, 16 cases were serious in nature, 13 cases were red marked cases and despite imposing minor punishment with a view to give opportunity to set right his conduct, the workman continued his misconduct while he was discharging his duties on 02.02.2015, when the officials checked the bus, the workman was found to have failed to account in the waybills issue of 32 tickets and having possessed the punched tickets. Learned counsel would contend that the reply to the charges is contrary to the claim petition of the 7( 1998) 118 PLR 791 8 (1978) 3 SCC 366 -8- NC: 2024:KHC:823 WP No. 27794 of 2018 workman and the evidence led to that effect. Learned counsel would contend that the first charge about non- entering of the tickets in the waybills is admitted by the workman and the explanation offered has rightly not been considered by the Tribunal and there is sufficient evidence which are adequate enough to carry a conviction in the mind of the Tribunal and the impugned order does not warrant interference.
7. Having heard the learned counsels for the parties and having perused the entire material on record, the only point that arises for consideration is:
"Whether the Labour Court was justified in holding that the order of dismissal of the disciplinary authority is justifiable having held the domestic enquiry conducted by the Corporation is not fair and proper in the present facts and circumstances of this case?"
8. The facts reveal that the workman was appointed as a driver-cum-conductor in the establishment of the Corporation, and when he was on duty on -9- NC: 2024:KHC:823 WP No. 27794 of 2018 02.02.2015 on route No.335/M/4 in vehicle No.KA-01-F- 4659, the vehicle was checked by the checking inspector and during the process of checking, the following irregularities were found to have been committed by the workman:
"1. Though the bus fully reached the Graphite India Stage i.e.5 Stage, First party had not accounted in the Way Bill for the issue of 32 tickets, out of which Rs.5/-, of 1 ticket, Rs.14/- of 20 tickets, Rs.17/- of 10 tickets, and Rs.19/- of 1 ticket
2). He was in possession of re-issued tickets of Rs.12/- of 1 ticket, Rs.14/- of 11 tickets, out of which on 11 tickets, he had written on 7 tickets as Rs.6/-, and 4 tickets as Rs.17/- totalling 16 tickets, which were re-collected from the Passengers with an intention of re-issue. These tickets were issued from Kadugodi to 5th Stage, and did not enter these tickets in the Way Bill at stages nos.1,2,3,4,5 and skipped the entries of those tickets at those stages and retained those tickets in Tickets fares and kept those 16 tickets with the ticket books with an intention of re-issue of those tickets."
9. The checking officials confiscated both the waybills, issued office memo to the workman on spot and
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NC: 2024:KHC:823 WP No. 27794 of 2018 submitted report to the competent authority. The articles of charges were framed, which read as under:
"1. ªÁºÀ£ÀªÀÅ vÀ¤SÁ ºÀAvÀ ¸ÀASÉå - 5 gÀ°è UÁæ¥ÉÊmï EArAiÀiÁªÀ£ÀÄß ¸ÀA¥ÀÆtðªÁV vÀ®Ä¦zÀÝgÀÆ ¸ÀºÀ ¤ÃªÀÅ ªÀiÁUÀð¥ÀvÀæzÀ°è «PÀæAiÀÄUÉÆAqÀ ««zsÀ ªÀÄÄR¨É¯ÉAiÀÄ MlÄÖ 32 aÃnUÀ¼À£ÀÄß CAzÀgÉ gÀÆ. 5-00 gÀ 1. gÀÆ; 14-00 gÀ 20. gÀÆÀ 17-00 gÀ 4 ºÁUÀÆ gÀÆ.19-00 gÀ 1 aÃn C£ÀÄß zÀÄgÀÄzÉÝñÀ¢AzÀ ªÀiÁUÀð¥ÀvÀæzÀ°è ¯ÉPÀÌPÉÌ vÉUÉzÀÄPÉÆAqÀÄgÀĪÀÅ¢®è.
2. ¤ÃªÀÅ aÃn ¥ÀĸÀÛPÀUÀ¼ÉÆA¢UÉ ªÀiÁUÀð¥ÀvÀæzÀ°è ¯ÉPÀÌPÉÌ vÉUÉzÀÄPÉƼÀîzÉ EgÀĪÀ gÀAzsÀæUÉÆArgÀĪÀ, a®ègÉ ¨ÁQ §gÉzÀÄ ºÀjzÀÄ ºÁQgÀĪÀ gÀÆ. 12-0 gÀ 1 aÃn ¸ÀASÉå:- 116282, gÀÆ 14-00 gÀÀ 11 aÃnUÀ¼À ¸ÀASÉå: 113159 +162+163+165+ 166+ 167+ 168+ 169+ 170+ 170+173 (gÀÆ 14-00 gÀÀ 7 aÃnUÀ¼À°è gÀÆ.6 JAzÀÄ a®ègÉ §gÉ¢gÀÄwÛÃj) ºÁUÀÆ gÀÆ.17-00 gÀ 4 aÃnUÀ¼À ¸ÀASÉå:802538+540+542+243 CAzÀgÉ MlÄÖ 16 aÃnUÀ¼À£ÀÄß ¥ÀæAiÀiÁtÂPÀjAzÀ ªÀÄgÀ½ ¥ÀqÉzÀÄ ªÀÄgÀÄ«vÀgÀuÉ ªÀiÁqÀĪÀ zÀÄgÀÄzÉÝñÀ¢AzÀ PÁqÀÄUÉÆÃr¬ÄAzÀ ºÀAvÀ - 5 gÀ ªÀgÉUÀÆ ºÀwÛzÀ ¥ÀæAiÀiÁtÂPÀgÀÄUÀ½UÉ aÃnUÀ¼À£ÀÄß «vÀj¹ ªÀiÁUÀð¥ÀvÀæzÀ°è ºÀAvÀ 1, 2, 3, 4 ªÀÄvÀÄÛ 5 gÀ°è ªÀiÁUÀð¥ÀvÀæzÀ°è ¯ÉPÀÌPÉÌ vÉUÉzÀÄPÉƼÀîzÉ fVvÀ ªÀiÁrPÉÆAqÀÄ aÃnUÀó¼À ªÀiË®åªÀ£ÀÄß G½¹PÉÆAqÀÄ ¸ÀzÀj aÃnUÀ¼À£ÀÄß ªÀÄgÀÄ«vÀgÀuÉ ªÀiÁqÀĪÀ zÀÄgÀÄzÉÝñÀ¢AzÀ aÃn ¥ÀĸÀÛPÀUÀ¼À eÉÆvÉ ºÉÆA¢gÀÄwÛÃj.
3. vÀ¤SÁ¢üPÁjUÀ¼ÀÄ ¤ªÀÄä §½ EzÀÝ ªÀiÁUÀð¥ÀvÀæ ªÀÄvÀÄÛ aÃn ¥ÀĸÀÛPÀUÀ¼À£ÀÄß CªÀgÀ ªÀ±ÀPÉÌ ¥ÀqÉzÀÄ ¤ªÀÄä£ÀÄß ªÉÃ.©¯ï JAnæ ºÁPÀ¢gÀĪÀ
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NC: 2024:KHC:823 WP No. 27794 of 2018 §UÉÎ ªÀÄvÀÄÛ aÃn ¥ÀĸÀÛPÀzÉÆA¢UÉ ºÉÆA¢zÀÝ aÃnUÀ¼À §UÉÎ «ZÁj¹zÀ vÀPÀët ¤ÃªÀÅ ªÁºÀ£ÀzÀ°èzÀÝ ¥ÀæAiÀiÁtÂPÀgÀ£ÀÄß vÀ¤SÁ¢üPÁjUÀ¼À ªÉÄÃ¯É JwÛPÀnÖ "£Á£ÀÄ K£ÀÄ vÀ¥ÀÄà ªÀiÁr®è, ªÉÃ.©¯ïè£À°è JAnæ ºÁQ®è CµÉÖà ¥Áå¸ÉAdgï a®ègÉAiÀÄ£ÀÄß PÉüÀ®Ä nPÉÃlÄUÀ¼À£ÀÄß PÉÆnÖgÀÄvÁÛgÉ. CªÀÅUÀ¼À£ÀÄß £À£Àß PÉÊAiÀÄ°è ElÄÖPÉÆArgÀÄvÉÛãÉ. £Á£ÉãÀÄ Dgï.L. ªÀiÁr®è" JAzÀÄ ªÁºÀ£ÀzÀ°èzÀÝ ¥ÀæAiÀiÁtÂPÀgÀ£ÀÄß vÀ¤SÁ¢üPÁjUÀ¼À ªÉÄÃ¯É JwÛPÀlÄÖªÀ ¥ÀæAiÀÄvÀß ªÀiÁrgÀÄwÛÃj, ºÁUÀÆ "AiÀiÁªÀ¤UÉ ¨ÉÃPÀÄ F PÉ®¸À gÉʯÉéà ¸ÉÖõÀ£ï£À°è PÀqÀ¯ÉÃPÁ¬Ä ªÀiÁjzÀgÉ JµÉÆÖà ªÀÄAiÀiÁðzÉ EgÀÄvÀÛzÉ. £Á£Éà PÉ®¸À ©qÀ¨ÉÃPÀÄ CAzÀÄPÉÆArzÉãÉ. E¯Éè ©lÄÖ ºÉÆÃUÀÄwÛä"
JAzÀÄ ¸ÁjUÉ £ÀUÀzÀÄ aî ªÀÄvÀÄÛ aÃn ¥ÀĸÀÛPÀUÀ¼À£ÀÄß ªÁºÀ£ÀzÀ EAf£ï ¨Áå£Émï ªÉÄÃ¯É ©¸Ár ¤ÃªÀÅ §¹ì£À°èzÀÝ vÀ¤SÁ¢üPÁjUÀ¼À ªÉÄÃ¯É JwÛPÀnÖ ¥ÀæPÀgÀt¢AzÀ ¥ÁgÁUÀ®Ä AiÀÄwß¹, ªÁºÀ£ÀzÀ°èzÀÝ ¥ÀæAiÀiÁtÂPÀgÀ£ÀÄß "§¸ï E¯Éèà ¤®ÄèvÉÛ ªÀÄÄAzÉ ºÉÆÃUÀĪÀÅ¢®è ¤ÃªÀÅ E¯Éèà E½zÀÄPÉƽî" JAzÀÄ ¥ÀæAiÀiÁtÂPÀjUÉ ºÉý, "ªÁºÀ£ÀªÀ£ÄÀ ß E¯Éèà ¥ÀPÀÌPÉÌ ¤°è¹" JAzÀÄ ZÁ®PÀjUÀÆ ¸ÀºÀ vÁQÃvÀĪÀiÁr ªÁºÀ£ÀzÀ°èzÀÝ ¥ÀæAiÀiÁtÂPÀgÀ£ÀÄß ¨ÉÃgÉ ªÁºÀ£ÀPÉÌ ºÀwÛ¹gÀÄwÛÃj ºÁUÀÆ vÀ¤SÁ¢üPÁjUÀ½UÉ ¥ÀæAiÀiÁtÂPÀgÀ£ÀÄß vÀ¤SÉ ªÀiÁqÀ®Ä ¸ÀºÀ ©qÀzÉ vÀ¤SÉUÉ CrØ¥Àr¹gÀÄwÛÃj.
4. EzÀjAzÀ ¸ÀzÀj ªÁºÀ£ÀzÀ°Ý ¥ÀæAiÀiÁt¸ÀÄwÛzÀÝ ¥ÀæAiÀiÁtÂPÀjUÉ ºÁUÀÆ D ªÀiÁUÀðzÀ°è ¸ÀAZÀj¸ÀĪÀ ¥ÀæAiÀiÁtÂPÀjUÉ C£Á£ÀÄPÀÆ®ªÀÅAlĪÀiÁrgÀĪÀÅzÀ®èzÉ ¸ÀA¸ÉÜUÉ DyðPÀ £ÀµÀÖªÀÅAmÁUÀ®Ä PÁgÀtgÁVgÀÄwÛÃj.
5. ¤ÃªÀÅ vÀ¤SÁ¢üPÁjUÀ¼ÉÆA¢UÉ ªÉÄïÁ¢üPÁjUÀ¼ÁzÀ G¥À ªÀÄÄRå ¨sÀzÀævÁ ªÀÄvÀÄÛ eÁUÀÈvÁ¢üPÁjAiÀĪÀgÀ ªÀiÁwUÀÆ ¸ÀºÀ ªÀÄ£ÀßuÉAiÀÄ£ÀÄß
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NC: 2024:KHC:823 WP No. 27794 of 2018 ¤ÃqÀzÉà ¸ÀĪÀiÁgÀÄ 40 ¤«ÄµÀUÀ¼À PÁ® ªÁºÀ£ÀªÀ£ÀÄß vÀ¤SÁ ¸ÀÞ¼ÀzÀ¯Éà ¤°è¹gÀÄwÛÃj.
6. ºÁUÀÆ vÀ¤SÁ¢üPÁjUÀ¼À£ÀÄß GzÉÝò¹. "AiÀiÁgÁgÉÆà PÉÆÃnUÀlÖ¯É ªÀiÁrPÉÆAqÀÄ ºÉÆÃUÀÄvÁÛgÉ £Á£ÀÄ ¸Àé®à K£ÉÆà ªÀiÁrzÀgÉ zÉÆqÀØzÀÄ ªÀiÁqÀQÌ¢ÝÃj ¤ªÀÄUÉ zÉêÀgÀÄ M¼ÉîAiÀÄzÀÄ ªÀiÁqÀĪÀÅ¢®è CzÉãÀÄ ªÀiÁrÛÃgÉÆà ªÀiÁqÉÆ̽î" JAzÀÄ ºÉý C¥ÁzÀ£Á ¥ÀvÀæPÉÌ ¸À» ªÀiÁr ¥ÀqÉzÀÄPÉÆArgÀÄwÛÃj".
10. The articles of charges were that (a) despite the vehicle having reached Graphite India Stage No.5, the petitioner has not accounted 32 tickets in the waybills viz., 1 of Rs.5, 20 of Rs.14, 10 of Rs.17 and 1 of Rs.19 with an ulterior motive; (b) The petitioner was in possession of unaccounted punched tickets which are not accounted in the waybills by endorsing the change to be payable to the passengers which were torn viz., 1 of Rs.12, 11 of Rs.14, out of 11 tickets, endorsed the change on the 7 tickets of Rs.6 and 4 tickets of Rs.17/-, in total recollected 16 tickets issued to the passengers with an intention to reissue the said tickets and without accounting those tickets in the waybills; (c) when the checking inspectors took possession
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NC: 2024:KHC:823 WP No. 27794 of 2018 of the waybills and the ticket books from the petitioner and the enquiry was made, the petitioner has instigated the passengers against the checking inspectors by stating that he has not committed any mistake except not accounting the tickets in the waybills and the passengers were given the tickets and that he was holding the said tickets with an intention to pay the change endorsed on the back side of the ticket and prevented the checking inspectors to complete the checking process and also threw the cash bag and ticket books on the bonnet of the bus and made the bus to stop for 40 minutes at the stop and made all the passengers to travel in another bus.
11. Articles of charges No.1 and 2 were held to be proved and the report has been submitted by the enquiry officer, the disciplinary authority examining the materials on record and the history sheet of the workman, dismissed the workman from service. The order of dismissal was questioned by raising a dispute under Section 10(4-A) of the ID Act by the workman.
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NC: 2024:KHC:823 WP No. 27794 of 2018
12. The Tribunal on basis of the pleadings framed the following issues:
"1. Whether the domestic enquiry conducted by the second party corporation against the first party is fair and proper ?
2. Whether the first party proves that the order of dismissal under No.¨ÉªÀĸÁ¸ÀA/¥À«/²¸ÀÄÛ/PÁ 17/14613/10461 dated 13-07-2016 is illegal, arbitrary and liable to be set aside ?
3. What order or award ?"
13. On preliminary Issue No.1 the Tribunal held that the domestic enquiry conducted by the corporation is not fair and proper.
14. The question that needs to be answered by this Court is that, when an enquiry or a defective enquiry is held by the employer, that itself renders the dismissal of the workman illegal.
15. Section 11A of the ID Act reads as under:
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NC: 2024:KHC:823 WP No. 27794 of 2018 "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 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:
Provided that in any proceeding under this section the Labour Court, Tribunal or National 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."
16. It is a well settled principle that after insertion of 11A to the Act, if the enquiry is held to be not fair and proper, opportunity needs to be accorded to the
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NC: 2024:KHC:823 WP No. 27794 of 2018 Corporation to justify the action taken by the Corporation. On the evidence adduced by the parties before the Labour Court, the Labour Court has power to appreciate the entire evidence. The Apex Court in the case of Firestone has summarized the principles governing the jurisdiction of the Tribunal when adjudicating disputes relating to dismissal or discharge and at paragraph No.27 has held as under:
"27. From those decisions, the following principles broadly emerge:
"(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
(3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
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NC: 2024:KHC:823 WP No. 27794 of 2018 (4) 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. 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.
(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie 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 latter, 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 functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry. (6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time
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NC: 2024:KHC:823 WP No. 27794 of 2018 before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens [AIR (1971) 1 SCC 742] within the judicial decision of a Labour Court or Tribunal."
17. On the touchstone of decisions of the Apex Court and settled proposition of law, the evidence tendered by the parties, whether the Labour Court, on appreciation of the evidence, has rightly arrived at the conclusion, needs to be looked into by this Court. The decisions placed by the petitioner-workman are relating to the proposition of law that the Labour Court has jurisdiction to re-appreciate the entire oral and documentary evidence let-in by the parties, having held that the domestic enquiry is not fair and proper.
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18. Thus, there are three circumstances, which arise before the Tribunal/Labour Court, to interfere :
i. Once the Tribunal holds that the domestic enquiry has been conducted properly and the action of an employer is bona fide and the conclusions arrived at therein are plausible, they have no jurisdiction to substitute their own judgment.
ii. In cases where misconduct is found to be proved by valid and proper domestic enquiry, the Tribunal/Labour Court has no power to alter the punishment imposed by the employer.
iii. Even in cases where the domestic enquiry held to be defective or even if no domestic enquiry has been conducted by an employer before passing an order of termination or discharge, the employer to be given an opportunity to adduce evidence before the Tribunal to justify its actions.
iv. Once the Tribunal accepts the evidence and holds that the misconduct is proved, it has no power to
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NC: 2024:KHC:823 WP No. 27794 of 2018 interfere with the discretion of the management regarding the quantum of punishment.
19. This Court has no quarrel about the settled proposition of law as contended by the learned counsel for the petitioner, however, what needs to be considered by this Court is whether the Labour Court has rightly appreciated the evidence to justify the order of dismissal. The Corporation examined M.W.2-the Traffic Inspector who deposed that even when the bus had reached the 5th Stage, the workman had not entered in the waybills. M.W.2 was cross-examined by the workman and no material is revealed to disbelieve the evidence of M.W.2.
20. M.W.3 deposed in corroboration of the evidence of M.W.2. The workman who examined himself as W.W.1 was cross-examined by the Corporation and he has categorically admitted about the non-entering of the 32 tickets in the waybills from 1st stage to 5th stage and non-entering the 16 old tickets in the waybills from stage Nos.1 to 5. In light of categorical admission and non-
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NC: 2024:KHC:823 WP No. 27794 of 2018 explanation of the possession of the punched 16 old tickets by the workman, the Labour Court by considering the entire oral and documentary evidence has arrived at a conclusion that there is no perversity in the order of dismissal passed by the Corporation.
21. On perusal of the impugned award, it is clear that the Labour Court has elaborately considered the material available on record and on appreciation of the same, has recorded a finding that the misconduct is proved.
22. The Tribunal has considered the evidence adduced by the Corporation independently and has arrived at a conclusion pointing the guilt of delinquent officer in respect of the charges levelled against him. The workman has admitted the charge No.1 about not accounting in the waybills the issue of 32 tickets before the bus reached the Graphite India Stage, i.e., 5th stage and the unexplained part on part of the workman insofar as possession of 16 tickets, which was punched, the burden of which was on
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NC: 2024:KHC:823 WP No. 27794 of 2018 the workman to prove the said aspect. Having failed to establish, the Tribunal was justified in arriving at a conclusion that the Corporation has proved the misconduct on the part of the workman and justified the order of dismissal. The manner in which the Labour Court has considered the entire evidence and the material on record, this Court is of the considered view that the same does not warrant interference. The point framed for consideration is answered accordingly for the reasons stated supra. Accordingly, this Court pass the following:
ORDER
(i) The writ petition is hereby dismissed.
(ii) The impugned order dated 23.04.2018 in ID.No.33/2016 on the file of the III Additional Labour Court, Bengaluru stands confirmed.
Sd/-
JUDGE SA