Karnataka High Court
M V Channakeshava vs The Director (S And V) on 11 October, 2022
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
WRIT PETITION NO.22245 OF 2021 (S-KSRTC)
BETWEEN:
M.V. CHANNAKESHAVA
S/O VEERA CHANNAIAH
AGED ABOUT 55 YEARS
R/AT NO.162
MEGHAVAHINI
1ST MAIN
3RD CROSS
HOYSALA NAGAR
NAGARBHAVI MAIN ROAD
BENGALURU-560 072.
... PETITIONER
(BY SRI. SHEKAR L .,ADVOCATE)
AND:
1. THE DIRECTOR (S AND V)
BMTC, CENTRAL OFFICES
K.H. ROAD
BENGALURU-560 027.
2. THE CHIEF PERSONAL MANAGER
BMTC, CENTRAL OFFICES
KH ROAD
BENGALURU-560 027.
3. THE CHIEF TRAFFIC MANAGER
BMTC, CENTRAL OFFICES
KH ROAD
BENGALURU-560 027.
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4. THE DIVISIONAL CONTROLLER
BMTC, WEST ZONE
CENTRAL OFFICES
K.H. ROAD
BENGALURU-560 027.
... RESPONDENTS
(BY SMT. H.R. RENUKA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED:03.09.2021
PASSED BY THE R1 VIDE ANNEXURE-A TO THE WRIT
PETITION DIRECT THE RESPONDENT CORPORATION TO
REINSTATE THE PETITIONER WITH CONTINUITY OF
SERVICE, CONSEQUENTIAL BENEFITS FROM THE DATE OF
DISMISSAL TILL THE DATE OF REINSTATEMENT AND
TREAT THE SUSPENSION PERIOD AS ON DUTY. FURTHER
DIRECTING THE R2 TO CONSIDER THE CASE OF THE
PETITIONER FOR PROMOTION TO THE POST OF TRAFFIC
CONTROLLER AS PER ANNEXURE-L DATED.19.11.2021.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Present petition is filed by the petitioner seeking issuance of an order in the nature of writ of certiorari quashing the impugned order dated 03.09.2021 at Annexure-A in and by which though the respondent No.1 allowed the appeal of the petitioner but imposed certain punishments as detailed thereunder.
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2. It is the case of the petitioner that he was discharging his duties as Traffic Controller at K.R.Market, Bengaluru, under the control of Assistant Traffic Manager, K.R.Market, Bengaluru. That by an order dated 10.04.2021 he was relieved from his services and directed to report to the duty at Depot No.17 in terms of Annexure- C. In terms of the said order, the petitioner was expected to report to duty of the said office either on 10.04.2021 or on 11.04.2021. That he could not report to duty on account of his ill-health as he suspected of having been infected with COVID-19. Though he was tested negative, he quarantined himself on 13.04.2021. That on 14.04.2021 he attended celebration of birthday anniversary of Dr. B.R.Ambedkar. But on the said date he received an information about unnatural bereavement in his family causing impediment to him in reporting to the duty.
3. That unfortunately without considering these events in his life an order of suspension as per Annexure- D was issued stating his alleged participation in the strike on 10.04.2021 and his unauthorised absent without 4 reporting to duties from 10.04.2021 onwards. The petitioner had filed a reply as per Annexure-F giving in detail about his ill-health and incident of unnatural bereavement in his family. However, without considering the same, by an order dated 19.04.2021 as per Annexure- G respondent had dismissed him from his services. The petitioner filed an appeal before the Director, Securities and Vigilance as per Annexure-H on 03.05.2021. On consideration of the appeal impugned order dated 16.07.2021 at Annexure-J came to be passed.
4. Learned counsel for the petitioner submits that he had no benefit of enquiry as mandatorily required under law. That without there being an enquiry the procedure adopted by the respondent and orders passed therein are unsustainable. Therefore, he submits that the petition be allowed.
5. He relied upon the judgment of a Coordinate Bench of this Court in the case of Hubert Lobo vs. Presiding Officer, Labour Court, Mangalore and others passed in W.P.No.11057/1996 reported in (1997)4 5 Kar.L.J. 524 in which referring to paragraph 5 he submits that when a punishment is imposed withholding the increment, there is a need to conduct an enquiry, without which the punishment would be illegal. Thus, he seeks for allowing of the petition.
6. On the contrary, learned counsel for the respondents submits that the petitioner has an alternative remedy by seeking reference of the Industrial Disputes Act as provided under the Act. She submits that the law in this regard is well settled by the judgment of the Apex Court in the case of State of Uttarakhand and others vs. Sureshwati in Civil Appeal No.142/2021, wherein the Apex Court referring to its earlier judgments had held that where an employer failed to make an enquiry before dismissal or discharge of a workman, it is proper for him to justify an action before the Labour court by leading evidence before it. The entire matter would be open to the Tribunal which would have jurisdiction to satisfy itself in the evidence adduced by the parties where dismissal or discharge were justified. Relying upon the said judgment, learned counsel for the respondents submits that the 6 petitioner might as well raise all the grounds before the Labour court in a properly constituted proceedings. Hence, she seeks for dismissal of the petition.
7. Heard the learned counsel for the parties and perused the records.
8. It is not in dispute that the order of dismissal from service which was passed in terms of Annexure-G on 19.04.2021 has been modified by the Appellate Authority in terms of Annexure-A by which the order of dismissal has been withdrawn and the punishment as referred to therein has been imposed. The petitioner is continuing to render his services. Grievance of the petitioner is only with regard to imposition of punishment of withholding of increments for the reason of his purported absence from duty without permission and that the said punishment has been imposed without any prior enquiry.
9. As held by the Apex Court in the judgment of Sureshwati (supra) validity or otherwise of the order without a domestic enquiry can be considered by the Labour court which has jurisdiction to satisfy itself with 7 regard to the fairness or otherwise of the order passed. Since the petitioner has an effective alternative remedy, this Court is of the considered view that without going into the merits of the case, the petitioner be directed to seek remedy available under the statute. In that view of the matter, petition is dismissed.
10. The petitioner is at liberty to approach the appropriate forum in accordance with law. All contentions are left open. If the petitioner initiates any such proceedings as provided under law and if a reference is made in compliance of the provisions required thereunder, the Labour court shall dispose of the matter in accordance with law within an outer limit of three months from such reference.
Sd/-
JUDGE RU