Karnataka High Court
Rajendra vs The Divisional Controller on 15 February, 2017
Author: G.Narendar
Bench: G. Narendar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR.JUSTICE G. NARENDAR
WRIT PETITION NO. 14922/2008 (L-KSRTC)
Between:
Rajendra,
S/o B.C. Ananthaiah,
Aged about 47 years,
Artisan, KSRTC,
K.G.F. Depot,
Kolar District.
Since deceased by his LRs.
1. R. Dhanalakshmi,
W/o Late Rajendra,
Aged about 46 years,
2. R. Anitha,
D/o Late Rajendra,
Aged about 23 years,
3. R. Sadananda,
S/o Late Rajendra,
Aged about 21 years,
All are residing at
No.865, Patel Street,
Oorgampet, K.G.F.
Bangarpet Taluk,
Kolar District. ... Petitioners
(Amended as per Court Order
dated 27.05.2013)
(By Sri. L. Shekar, Advocate***)
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And:
The Divisional Controller,
K.S.R.T.C.
Kolar Division,
Kolar. ... Respondent
(By Sri. Hareesh Bhandary.T., Advocate***)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the impugned
order dated 27.08.2007 passed by Industrial Tribunal,
Bengaluru in I.D. No.155/2006 at Annexure-A to the Writ
Petition and also to quash the impugned award dated
29.12.2007 passed in I.D. 155/2006 by the Industrial
Tribunal, Bangalore vide Annexure-B to the Writ Petition and
allow the reference as prayed for.
This Writ Petition is coming on for final hearing this
day, the court made the following:
ORDER
Heard the learned counsel for the petitioners and learned counsel for the respondent.
2. The petitioner-workman passed away on 01.03.2013 and his legal representatives have been brought on record.
3. The petitioner-workman was employed as an Assistant Mechanic in the respondent-Corporation in KGF Depot. He was issued with charge sheet on 26.08.1993. Under the said charge sheet, it was alleged 3 that he along with one Y.V. Krishna Murthy, L. Dickson, Selvaraj, Vijayakumar, Kareem, V. Srinivas, Vasanthkumar, Ramesh Kumar, Vivekanandan, Prakash and 30 other persons entered the KGF Depot premises on 28.07.1993 at about 4:00 am and in order to ensure the success of "one day strike", called them out, deflated the tyres of certain busses which were parked in the depot. It was also alleged that the workman along with others had driven the busses and parked them in a haphazard manner at the entrance in order to prevent ingress and egress of vehicles from and to and into the depot and that the workmen had abused the security staff and others when an attempt was made to prevent them from indulging in such illegal acts.
4. The learned counsel for the petitioners would submit that these were the charges against all the workmen and a joint enquiry was conducted and common evidence was let in. More importantly, the Depot Manager one P.Narayanaswamy was examined and on the basis of the statement made, the 4 respondent-Corporation imposed the striking workmen with various punishments.
5. The learned counsel for the petitioners would submit that the aggrieved workmen sought for a reference and would submit that the reference on behalf of Y.V.Krishnamurthy has been numbered as I.D.No.190/2006 and reference on behalf of one Dickson has been numbered as I.D. No.45/2007.
6. The learned counsel for the petitioners would submit that the Labour Court has, in the case of the other two workmen while appreciating the evidence of the said Depot Manager, held as follows:-
"15. MW.4 P. Narayanaswamy who was working as Depot Manager in KGF has given evidence that on 28.7.1993 at about 4 a.m. the first party along with conductor Krishnamurthy, drivers Srinivas, Selvaraj, G. Vijayakumar, Assistant Artisans Kareem, Rajendra, Vasanthkumar, Helpers-A Ramesh Kumar, Vivekanandan and Prakash with other 30 persons entered the depot premises 5 and prevented other workmen from performing their duties and caused inconvenience to the traveling public and they also removed the blow from the tyres of 22 buses and all this resulted in financial loss to the corporation and upon receipt of the information he visited the depot and enquired about the incident and recorded the statement of security guard. During his cross- examination it was elicited that one Krishnamurthy was also indulged in the strike and in respect of the said Krishnamurthy an award was passed on 9.8.2010 as per Ext.W.2 in ID-190/2006 holding that the charge against Krishnamurthy was not proved.
16. The security guards who were deputed at the depot have not been examined by the management. The two witnesses who were examined have no personal knowledge of the alleged incident and as much as they were not present at the spot. The evidence regarding the incident is only hearsay. Under those circumstances, the charge against the first party workman cannot be said to be proved. That being so, the second party is not justified in passing the punishment order 6 dated 25.6.2005. Hence, I answer this point accordingly."
7. In the I.D.No.190/2006, it has appreciated the evidence of the Depot Manager as follows:
"7. When it came to proving the charges before this Court, the Management adduced the evidence of MW.2 P. Narayana Swamy, who was the then Depot Manager of KGF Depot. When the alleged incident has taken place on 28.7.1993 at 4.00 a.m., this Depot Manager was fast asleep in his Quarters. The Security Guards, who had witnessed the incident, had reported this matter to the Depot Manager. The Depot Manager had then rushed to KGF Depot only after the incident was over. He could see what had happen but not who had done what. He had then recorded the statements of the Security Guards as per Exs.M.11 to M.14. Thereafter he had obtained a detailed report from the Security Officer as per Ex.M.17. However, MW.2 has admitted in the cross-examination that he did not record the statements of Security Guards. Exs.M.11 to M.14 also do 7 not bear the signatures of MW.2 as the Officer recording the statements of the Security Guards. Therefore, the Management has not been able to prove satisfactorily that MW.2 had indeed recorded the statements of the Security Guards. Then the Management has not examined any of the Security Guards for the reasons best known to it. Management has not examined the Security Officer, who had given detailed report about the incident to the Divisional Controller. According to the Management, the real eyewitnesses to the alleged incident were the Security Guards. However, those Security Guards had already turned hostile, when the I Party and others were prosecuted before JMFC, KGF. They had disowned having ever witnessed the alleged incident. Therefore, Management had understandedly not examined any Security Guards before this Court. MW.2 was not an eyewitness to the alleged incident. He had come to the scene of offence only after the incident was over. Therefore, he cannot be believed when he says that I Party was also involved in the alleged incident. The Management has on purpose not examined the eyewitnesses to the incident. The 8 Management has examined the witness, who did not actually witnessed the incident. Therefore, it cannot be said that the Management has proved the charges leveled against the I Party satisfactorily."
and was pleased to exonerate the workmen but in the case of the petitioner, the very same Labour Court chose to construe and interpret the evidence in a different colour which is contrary to law.
8. He would submit that the Labour Court while considering the case of the petitioner-workman has chosen to hold that the report by the Depot Manager i.e., the said P. Narayanaswamy, probabalises the fact that the petitioner-workman had indulged in the strike and committed the acts alleged against them. Whereas, the Labour Court while appreciating the very same evidence of the said P.Narayanaswamy in the case of other workman- Dickson in I.D. No.45/2007 arrived at a conclusion that the evidence of the said P.Narayanaswamy is only hearsay evidence, that the Management had deliberately 9 failed to examine the eye witnesses and that the witnesses examined by the Management had no personal knowledge of the occurrence. In I.D.No.190/2006 the Labour Court had concluded that the Depot Manager would not have seen the act by the workmen as he has admitted that he was fast asleep in his quarters and the Management had understandably not examined the security guards who were allegedly the eye witnesses to the alleged incident and he would submit the appreciation of the evidence in the case of the petitioner is perverse and contrary to the material on record. He would submit that it is an admitted fact that the Management has not examined the eye witnesses who were very much available. He would also contend that the findings recorded by the Labour Court in the other two references have not been challenged and have become final. In that view of the matter, he would submit that the order impugned herein calls for interference.
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9. Per contra, the learned counsel for the respondent-Corporation would support and argue for upholding the orders passed in the case of the petitioner-workman.
10. On perusal of the three awards, it is apparent that the Tribunal has been wholly inconsistent in the appreciation of the material on record. More particularly, the oral evidence of the Depot Manager. In the case of one workman, it has concluded that he was only a hearsay witness; and that they have not examined the available eye witnesses. In the other case while appreciating very same evidence it has concluded that the said Depot Manager was fast asleep. Thereby, yet again concurring with its earlier appreciation of the evidence that he was only a mere hearsay witness, it also rightly inferred that non-examination of the eye witnesses goes to the very root of the case and their non-examination has to be inferred adversely against the respondent-Corporation.
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11. It is not in dispute that though the workmen were issued with separate Articles of Charges, a common evidence was let in on account of the fact that the workmen were involved in the strike that was held on 28.07.1993 and that being the case, the Labour Court has seriously erred in appreciating the evidence on record in the manner which is neither backed by logic nor prudence. To say the least, it is whimsical. A perusal of the award would demonstrate that the Labour Court has wholly relied upon the evidence of the Depot Manager and it has held that the report and his evidence probabalises the fact of the petitioner and other workmen having indulged and committed the alleged acts. Perusal of the same would reveal that the Depot Manager has sourced his information from the security guards and he was not an eye witness to the alleged incident. In fact, the Enquiry Report would also take note of the surrounding environment in the area and would state that the said locality is known for rowdyism and hence the absence of the Depot Manager at the scene of occurrence cannot be found fault with. 12 The said finding of the Enquiry Officer coupled with the statement of the Depot Manager clearly establishes the fact that the said witness was not an eye witness to the incident. Further, the fact, of the Management having omitted to examine the eye witness has to be frowned upon when the witnesses i.e., the security guards were very much available. Hence, as rightly held by the Labour Court in the other two references, the said Depot Manager is nothing but a hearsay witness and the view and the reasoning expressed by the Labour Court in respect of the said witness squarely applies to the facts and circumstances of the present case. Hence, this Court is of the considered opinion that the Writ Petition requires to be allowed.
12. Accordingly, the petition is allowed. Consequently, the order dated 25.06.2005 passed by the Disciplinary Authority holding the workman guilty of misconduct and imposing punishment of reduction of four annual increments with cumulative effect and further directing to treat the period of suspension as 13 period of absence, is set aside. Consequently, the order of the Labour Court in I.D. No.155/2006 dated 29.12.2007 is also set aside. In the light of the passing away of the workman, the petitioners who are his legal representatives shall be the beneficiaries for all financial and consequential benefits the workman was entitled. The respondent is directed to comply with the order within a period of twelve weeks from the date of receipt of the copy of this order. Consequently, I.A.1/13 filed for production of additional documents does not survive for consideration and the same is disposed of.
Sd/-
JUDGE CHS