Karnataka High Court
North West Karnataka Road Transport ... vs K.S. Ijanthkar on 26 July, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 26TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.NO.63548/2011 (L-KSRTC)
BETWEEN:
NORTH WEST KARNATAKA ROAD
TRANSPORT CORPORATION,
GOKUL ROAD, HUBLI-580020
BY ITS MANAGING DIRECTOR,
NOW REPRESENTED BY
ITS CHIEF LAW OFFICER.
... PETITIONER
(BY SMT. SUNITHA P. KALASOOR, ADV.,)
AND
K.S.IJANTHKAR
SINCE DECEASED BY HIS LRS.
1. SMT. NEETA
W/O. LATE KESHAV IJANTHKAR.
2. PRAKASH
S/O. LATE LATE KESHAV IJANTHKAR.
3. ARATHI
D/O. LATE LATE KESHAV IJANTHKAR.
(CLAIMANT NO.2 AND 3 ARE MINORS AND THEY
ARE REPRESENTED BY THEIR MOTHER AS
NATURAL GUARDIAN)
C/O A.D. MALAGE, INDIRA NAGAR,
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GANAPATI TEMPLE ROAD,
CHIKKODI, DIST: BELGAUM.
... RESPONDENTS
(SRI.RAVI HEGDE AND M.G. BHAT, ADVS.,)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH AGAINST
ORDER REFERENCE NO.4/2006 PASSED BY ADDITIONAL
LABOUR COURT, HUBLI DATED 20.07.2010, PRODUCED
AT ANNEXURE-A ETC.,
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
North West Karnataka Road Corporation (hereinafter referred to as 'corporation' for the sake of brevity) is seeking for quashing of the judgment and award passed by the Additional Labour Court, Hubli, in reference No.4/2006 dated 20/7/2010, Annexure-A, whereunder order of dismissal passed against the workman on 22/8/1994 came to be set aside and workman is deemed to be have reinstated with continuity of service and without back wages and consequential benefits.
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2. Facts in brief leading to the filing of this writ petition can be crystallized as under:-
One Sri.I.J.Keshav Ijankhar hereinafter referred to as 'workman' was appointed as a conductor, in the Corporation, in the year 1981. He was issued with Articles of charges on 25/5/1992 on the ground that while he was conducting the vehicle plying from Ratnagiri to Belgaum, it came to be checked by Inspectors and it was found that workman had not issued tickets to 5 passengers despite collecting fare amount of Rs.27.50 each and had closed the way bill against stage No. 18 in all respects. It was further alleged in the charge sheet that workman was involved in 7 past default cases and though had been awarded minor punishment in the past cases he had not got himself reformed and did not show any improvement.
Workman submitted his reply denying the charges levelled against him. He contended that bus was over crowded from starting point and he had issued tickets :4: to all the passengers and asked passengers to purchase tickets. It was contended that ticketless passengers have deceived the workman and they had remained silent and had not purchased the tickets and when the checking Inspectors found the ticketless passengers to avoid payment of penalty, they stated that they have paid the fare amount to conductor, who did not issue tickets. The checking officials did not make any attempt to check the cash found with the workman.
Not satisfied with the reply submitted by workman the Disciplinary Authority ordered for conducting an enquiry and in the domestic enquiry, evidence came to be recorded and thereafter, a report came to be submitted holding that charges against the workman were proved by enquiry report dated 10/10/1992. After considering the reply given to the second show cause notice, respondent workman came to be dismissed by order dated 24/8/1994 by considering the past history of the workman.:5:
3. Workman during his lifetime did not raise the dispute. Wife and children of the deceased workman raised a dispute before the Assistant Labour Commissioner and Conciliation Officer, Belgaum, and on conciliation failing the Appropriate Government, in exercise of the power under Section 10 (1) (C) of I.D. Act 1947 referred the dispute for being adjudicated by the Labour Court, which came to be numbered as 4/2006. On such reference being made before the Tribunal, issue No.5 relating to fairness of the enquiry conducted by the employer, came to be adjudicated as a preliminary issue and by order dated 30/10/2009, it was held in the affirmative namely, domestic enquiry conducted against the workman was held to be fair and proper. Thereafter, claimants were directed to lead evidence.
4. Legal heirs of the workman did not lead any oral evidence nor they tendered any documentary :6: evidence. On the other hand, respondents got marked documents as Ex.M1 to M38. On adjudication of the reference, labour Court while answering issue No.6 relating to justification of the Corporation dismissing the workman held that the findings of the enquiry officer are not proved by the Management. On account of the workman having expired prior to raising of the dispute, the labour Court ordered that the workman is deemed to be in service and as such extended the benefit of continuity of service and consequential benefits but without backwages. The labour Court held that claimants are entitled to get service benefits of the deceased workman. It is this award which is impugned by the Corporation in the present writ petition.
5. It is the contention of Smt. Sunitha Kalasoor, learned counsel appearing on behalf of Corporation that labour Court having held that enquiry conducted against the workman as fair and proper, it :7: could not have interfered when the findings recorded by the enquiry officer particularly when the legal heirs of the deceased workman having not tendered any evidence to disprove the contents of the enquiry report. She would also contended that labour Court ought not to have answered issue No.4 in the negative regarding delay in raising dispute by holding that such an issue cannot be examined by the labour Court. She would also submit that on the ground of delay and latches itself the reference Court ought to have rejected the reference and she relies upon the judgment of the Apex Court in the case of State of Karnataka and Another Vs. Ravi Kumar reported in 2009(13) SCC 746.
6. Per contra, Sri.Ravi Hegde, learned counsel appearing for respondents supporting the judgment passed by labour Court would contend that once a reference is made to the labour Court for adjudication of dispute, the reference Court cannot throw out the :8: reference on the ground of delay and it has to be examined on merits. For this proposition, he relies upon the judgment of the Apex Court in the case of 2008-I- LLJ page 305 reported in Karan Singh and Executive Engineer, Haryana State Marketing Board. He would also submit that even though enquiry officer had held the charges are proved and subsequently while examining the issue regarding fairness of the domestic enquiry conducted against the workman it came to be held in favour of employer and against the workman, the power of the labour Court is not absolved to examine as to whether the finding recorded by the enquiry officer is based on proper appreciation of evidence and as to whether a prudent person would have arrived at such a conclusion and in this background labour Court has examined by appreciating the evidence and found that statement of the passengers recorded is improper and the said passenger had not been examined in the enquiry and as :9: such, it was held that charge levelled against the workman is not proved. He would contend that statement of passengers ought to have been recorded in view of the circulars governing the issue, which has been issued by the Corporation itself which would have enabled the workman to summon the said person to prove the innocence of the workman and undisputedly in the instant case, the statement recorded by the passenger neither contained the name and address nor the details thereof and as such it is fatal to the claim of the management. In support of these proposition, he has relied upon the judgment in the case of Rajinder Kumar Kindra V. Delhi Administration through Secretary (Labour) and others reported in AIR 1984 Supreme Court 1805 and the Division Bench judgement of this Court rendered in W.A. No.1803/2006 dated 05.08.2008.
7. Having heard the learned advocates appearing for the parties and on perusal of the : 10 : judgment and award passed by the labour Court, I am of the considered view that following points would arise for my consideration:
1. Whether Labour Court could have answered issue No.4 in the negative i.e. against the Corporation and in favour of the workman by holding that delay in raising the dispute cannot be examined once the matter is referred to it by the appropriate Government?
2. Whether the labour Court was correct in holding that the Corporation was not justified in dismissing the workman from service by order dated 22.08.1994?
8. The deceased workman at an undisputed point of time being a conductor in the Corporation and issuance of Articles of charge on 25.05.1992, reply given thereof enquiry conducted against him culminating in the issuance of order of dismissal are facts which are : 11 : not in dispute. Hence, they are not delved upon as it would be repetition of facts.
Re Point No.1:
9. In the instant case, the appropriate Government can exercise of its jurisdiction 10(1)(c) of the Industrial Disputes Act, 1947 by order dated 05.01.2006 has referred to dispute to the labour Court for its adjudication. The points of reference which has noticed by the labour Court is extracted in paragraph Nos.5 of the award and one of the points of reference is relating to the stale claim or the belated claim made by the deceased workman namely reference No.4. Pursuant to the enquiry report submitted by the enquiry officer on 10.10.1992, workman was issued with a second show cause notice enclosing the enquiry report to which the workman submitted a reply and same came to be examined by the Disciplinary authority and by order dated 24.08.1994 workman came to be dismissed from service. He did not raise any dispute. : 12 : In other words, he has accepted the said order of dismissal. From the records neither the legal heirs of the workman nor the Corporation has placed material to show as to the date on which the workman had expired. Subsequently, a dispute came to be raised by the legal heirs of deceased workman before the Assistant Labour Commissioner and Conciliation Officer, Belgaum in KID 1361/IDM/2005. On failure of conciliation proceedings appropriate Government by its reference order dated 05.01.2006 formulated the points for reference and referred the matter to the jurisdictional labour Court for adjudication. As already noticed hereinabove, reference No.4 related to the belated claim being raised or as to whether the claim raised by the legal heirs of the deceased workman being stale on the ground that after a period of nearly 11 years, legal heirs of the deceased claimant have raised the dispute which was on account of the Corporation contending that such a claim being belated and there : 13 : was delay in raising a dispute. Hence, point No.4 came to be formulated by the appropriate Government while referring the dispute to the jurisdictional labour Court for adjudication.
10. The labour Court has held that in view of the law laid down by the Apex Court in the case of Karan Singh reported in 2008-I-LLJ 305 to brush aside the contention of the Corporation and held that once reference is made it ought to examine the merits of the case without examining the aspect of the delay. Their Lordships have held that on the ground of delay alone claim petition cannot be thrown out and such claim is required to be examined if the claimants are able to demonstrate that the order of discharge, dismissal or termination is illegal. It has been held by the Apex Court to the following effect "Sofaras delay in seeking reference is concerned, no formal of universal application : 14 : can be laid down. It would depend on each individual cases delay defeats equity". If there is a delay in raising a dispute, it may lead to a situation, where the records may not be available. Witness may have expired or their memories would have faded and as such the employer in such cases after much water having flown down from the bridge cannot be accepted to place cogent material to substantiate the charges levelled against the workman which is said to have been proved in the domestic enquiry. This delay may cause prejudice to the employer and in this background it came to be held by the Apex Court as a ground for not rejecting the reference on the said ground. However, when the reference itself indicates as to whether the claimants would be disentitled to the reliefs on the ground of delay and latches as held by their Lordship will have to be examined on the facts on each case. The Apex Court in the case of State of Karnataka and another V. Ravi Kumar reproted in (2009) : 15 : 13 Supreme Court Cases 746 referred to supra by referring the case of Nedungudi Bank Ltd., V. K.P.Madhavanakutty and others reported in (2000) 2 Supreme Court Cases 455 and the case of Assistant Executive Engineer, Karnataka V. Shivalinga reported in (2002) 10 SCC 167 has held that stale claim should not be referred and when a power conferred by statute the same has to be done within a reasonable period.
11. As already noticed hereinabove in the instant case before the labour Court, Corporation produced the records and substantiated its order of dismissal passed against the workman by producing the records. While examining the issue of fairness and domestic enquiry the labour Court looked into those records and held domestic enquiry conducted against the workman was fair and proper. Thus, legal heirs of the workman had a right to rebut the said evidence but did not lead any evidence and they have accepted the : 16 : findings recorded by the labour Court on the issue regarding fairness of enquiry. Hence, the labour Court could not have held issue No.4 against the Corporation by holding that the issue regarding stale claim cannot be examined by it. It was incumbent upon the labour Court to find out as to whether the delay in raising the dispute had caused any prejudice to the Corporation since it has proceeded to examine the correctness or otherwise of the order of dismissal passed against the workman and held the same against the Corporation. The witnesses who had given their statements to the checking squad could not have been summoned by the Corporation before Labour Court on account of time having lapsed namely after 10 years. Hence, labour Court could not have found fault with the findings recorded by the enquiry officer for having held that charges are proved against the workman. : 17 :
12. In that view of the matter, I am of the considered view that point No.1 answered by the labour Court in favour of the workman is liable to be set aside and issue No.4 requires to be answered by holding that the delay was fatal to the claim and as such the reference was required to be rejected on the ground of delay in raising the dispute.
13. Answering point No.1 would have been sufficient to reject the present writ petition. However, on account of parties having advanced arguments on both the issues point No.2 formulated hereinabove is also being adjudicated.
Re Point No.2:
14. Labour Court while examining the justification of the Corporation to dismiss the workman from service has found that Corporation had failed to prove that five passengers had paid the bus fare to the workman. At the outset it requires to be noticed that : 18 : while examining the issue regarding fairness of enquiry, labour Court had already answered the same in the affirmative i.e. in favour of the Corporation and against the workman. When said answer has been given by the labour Court in the affirmative it ought to have been very slow in examining the correctness of the punishment imposed by the Corporation on the workman. It is no doubt true that labour Court can examine as to whether there is improper appreciation of evidence or non appreciation of evidence available on record or whether any material evidence having been ignored by the enquiry officer tendered by the workman on account of which that no person of ordinary prudelence would have come to a conclusion as opined in the enquiry report. It is this exercise which was required to be carried out by the labour Court as held by the Apex Court in AIR 1984 SC 1805 referred to by Sri. Ravi Hegde, learned counsel and it has been held in the said judgment as follows:
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20. Mr. Jain contended that once Mr. Kakkar came to the conclusion that the appellant was given full opportunity to participate in the domestic enquiry neither High Court under Art. 226 nor this Court under Art. 136 can sit in appeal over the findings of the enquiry officer and reappraise the evidence. We have not at all attempted to re-appreciate the evidence though in exercise of the jurisdiction conferred by Sec.
11-A of the Industrial Disputes Act, 1947 both arbitrator and this court can reappraise the evidence led in the domestic enquiry and satisfy itself whether the evidence led by the employer established misconduct against the workman. It is too late in the day to contend that the arbitrator has only the power to decided whether the conclusions reached by the enquiry officer were plausible one deducible from the evidence led in the enquiry and not to re-appreciate the evidence itself and to reach the conclusion whether the misconduct alleged against the workman has been established or not. This court in Workmen of M/s Firestone Tyre Rubber Co. of India (P) Ltd. v. Management (1973) 3 SCR 587:
(AIR 1973 SC 1227), held that since the : 20 : introduction of Sec. 11-A in the Industrial Disputes Act, 1947, the Industrial Tribunal is now equipped with the powers to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied upon by the employer establishes the misconduct alleged against the workman. It is equally well-settled that the arbitrator appointed under Sec. 10-A is comprehended in Sec. 11-A. This court in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, (1980) 2 SCR 146: (AIR 1980) SC 1986, held that an arbitrator appointed under Sec. 10- A of the Industrial Disputes Act, 1947 is comprehended in Sec. 11-A and the arbitratal reference apart from Sec. 11-A is plenary in scope. Therefore it would be within the jurisdiction both of the arbitrator as well as this court to reappreciate the evidence though it is not necessary to do so in this case. It is thus well- settled that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come, the arbitrator appointed under Sec. 10-A or this court in appeal under Art. 136 can reject such findings as perverse. Holding that the findings : 21 : are perverse does not constitute reappraisal of evidence, though we would have been perfectly justified in exercise of Powers conferred by Sec. 11-A to do so.
20. Where the order of dismissal is sought to be sustained on a finding in the domestic enquiry which is shown to be perverse and the enquiry is vitiated as suffering from non-
application of mind the only course open to us is to set it aside and consequently relief of reinstatement must be granted and nothing was pointed to us why we should not grant the same.
15. In the instant case, the workman was issued with an offence memo Ex.M-3 (before the enquiry officer). The very same offence memo came to be marked before labour Court as Ex.M32. The charge against the workman was that five passengers namely 3 adults + 2 children had not been issued with the tickets though the passengers had paid fare to the workman. The leader of the group had given statement in the presence of the workman. At the back side of Ex.M-3-M32 namely : 22 : offence memo which is in Marathi language the signature of the passenger who gave the statement has been marked as Ex.D1a. It is no doubt true it does not contain the name and address of the said passenger. If the workman had disputed that the said passenger had not given the statement then the contention of Mr.Ravi Hegde which is to the effect that statement ought to have been recorded in a particular manner reflecting name and address of the witness was deserved to be accepted, inasmuch as workman would have had an opportunity to summon the said passenger as his witness to disprove the contents of the statement so recorded. In such a situation, the judgment of the Division Bench relied upon by the learned counsel Sri.Ravi Hegde in W.A.No.1803/2007 referred to herein supra would have definitely come to his rescue. However, we are not placed in such a situation in the instant case. The reply given by the workman to the offence memo which came to be marked as Ex.M32 : 23 : would clearly indicate that in the presence of the workman such a statement was recorded and workman has contended that a false statement has been recorded. He has not pleaded that no such statement has been recorded. He has also contended that Inspectors who conducted the check, knowing fully well that these passengers were speaking Marathi Language and they were not knowing Kannada language, in the journey details recorded have noted down in Kannada and they have forcibly taken the signatures of the said passengers on the same. It is not in dispute to the said offence memo workman has affixed his signature. Workman has received the offence memo by affixing his signature. He does not dispute the contents of the offence memo. He did not reply to the offence memo immediately thereafter. After a lapse of nearly about four months i.e. on 18.09.1992 he has replied to the same. The ticketless passengers who claim to have paid fare to the workman have been levied with penalty : 24 : for ticketless travel and they have paid the same. That apart, it was also found by the inspectors that five unpunched tickets have been seized from the workman. Before the enquiry full opportunity had been extended to the workman and there is no cross examination by the workman on this aspect namely on account of non- furnishing of the address of the person who has given the statement it had resulted in any prejudice to the workman. In fact labour court while answering issue No.6 has clearly avoided to record any finding on issue relating to charges 2 and 3 which were held as proved in the enquiry. Despite recording a finding that enquiry held against the workman is fair and proper it has substituted its view on a different ground as discussed hereinabove without holding as to how such findings could not have been recorded by enquiry officer. There is no finding recorded by the labour Court that findings recorded by the enquiry officer could not have been arrived at by any prudent person or its findings was : 25 : based on the material evidence available on record. Even assuming that a different view could have been taken, labour Court was precluded from substituting its view to that of the view expressed by the enquiry officer. On that ground also the finding recorded by the labour Court on issue No.6 cannot be sustained.
16. Hence, for the aforestated reason, the following order is passed:
(i) Writ petition is allowed.
(ii) Judgment and award passed by the labour Court in reference No.04/2006 dated 20.07.2010 Annexure-A is hereby quashed.
(iii) The reference dated 05.01.2006, made under Section 10(1)(c) of the Industrial Disputes Act, 1947 in No.KE/1361/IDM/ 2005/05.01.2006 stands rejected and claim petition is hereby dismissed.
(iv) No order as to costs.
SD/-
JUDGE VMB/BS