Karnataka High Court
V Krishna vs Bangalore Metropolitan Transport ... on 19 November, 2009
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
-1-
EN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 197" DAY OF NOVEMBER, 2009
PRESENT
THE HON'BLE MR.JUS'I'ECE VGOPALA GOWBAJ "
AND
THE HON'BLE MRSJUSTICE E§;\;.E\_IAGAR1¥IE--Ii$:§A.VV _
WA. NO. 1273/2009 (L§ESR'IC}
BETWEEN: ' '
VKRISHNA
S/O VENKATAPPA
AGED ABOST 51 YEARS,
NO.18/1, 'F' CROSS,'
HOSAGUODAHALLY'
MYSOREROAD,;"
BANGALORE --__ 26.. 2 = , APPELLANT
____ H Sri Sr'inivg_1Sa,,.Adv.,}
BANGALORE METROPOLITAN
TRANSPOR3-"vCORPORAT{CN _ '
K.H. ROAD, BANGAI2ORET_V '
BY ITS CHIEF TRAFFIC' MANAGER.
, REP S¥i.1TS'CHIEF 1;AW__Q§7FICER. RESPONDENT
Smt. H R Renuka, AdV.,]
._ FILED U/S 4 OF THE KARNATAKA HIGH
COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN
A A _VVRIT'.PE'FEi'I'K}N'V}\§O.13784/2008 DTD.6.2.2009.
_ This' "WA coming on for dictating Judgment on this
GOPALA GOWDA J, made the f0110wing:-
_ 3 _
driver is that he must be studied up to 4") standard in
addition to having a Valid driving licence.
5. It is the case of the appellant that he had.
both pre-requisite qualifications, he was duly selectfedv 9'
selection authority and appointedlhhirni sul3jectl:_to_pph')r'sicél
test.
6. After his reporting for the discipliijlargrlvauthorityl V
issued an article of charge dated. 1O.'1994lalleging that he
had produced false support of his
qualification With__ a firieiiv '~to_olo;tair1' appointment in the
respondhentie denied the charges by
submitting. a 22.11.1994. Not accepting
the reply,l"t.~he' diseipl.inary authority proceeded to conduct
enquiry" proceedings as required under regulation
Servants {Conduct 8: Discipline]
."3,eg't;£1atio'nsj.l..i971 {hereinafter called as 'C 81 D Regulations}.
In 1995, the enquiry officer was changed and in the
it » Aenlqiiiryr before the enquiry officer the workman himself was
Adexarnined in the year 1999 and the enquiry officer has
9' wsubrnitted his report on 6.8.1999 holding that the charges
leveled against the appellant is proved and thereafter the
appellant has submitted his reply to the second show cause
li\_/
«Cl 4 _
notice in the month of September 1999 seriously questioning
the correctness of the findings of the enquiry 0fficer___in
holding that charge of misconduct is proved. Not ac'cepting..u
the explanation, the services of the appellant -- "
terminated by the disciplinary authority by ianflorder
of dismissal on 11.06.2004 after a of
years from the date the enquirybvvasgg concluded. if
7. Aggrieved of the saidorderllof the appellant
had raised an industrial additional Labour
Court for adjudicafiion of the .Tdisputvej_*bue_tvvjeen him and the
Corporation.
8. The 'clair_n and counter statement in
justification of claairnp (ijf--.___ifhé.ir respective cases. The
Corporation 'reliarxcef upon the enquiry conducted by
the d'iscii:iiinary authority in justification of the order for
"theLWOrkinan and the same was tried as a
preli1ninar3'~ No.1. By order dated 13.3.2007. the said
l1"~<.___Vissue is" answered in favour of the Corporation holding that
conducted by the disciplinary authority is legal
valid. Thereafter, the workman filed an affidavit before
_ L//the labour court in justifica claim of victimization.
-5-
9. The learned Presiding Officer of the EAdditional Labour
Court has answered issue Nos. 2 and 3 in the affirmative
and negative respectively by recording reasons at paragraphs
10 8: 11 of the Award. On re--appreciation of the evidence'g:'ognvv,<
record, accepting the finding of misconduct reco;:d'edv 1 "
enquiry officer accepted by the disciplirnaryg it
to be correct and answered the issue"No.:fZli1i the _affirmatiVxe_jvl.
issue No.3 is answered in the negatiye ho'iding_thattheiiorder
of dismissal is passed 'after VcorVnjpIeti.o_n years of
continuous service renvdered, is highly
belated and the 'dis'missal"':order' iyirlarranted and
further placing orders
produced of similarly charged
employees o__f__a.nd Ex.W9 the circular dated
2.8.2003 Director of the Corporation
giving guidelines-to 'the disciplinary authorities in relation to
of__ the cases arising out of the violation of
C & R Regulations and held that the
discAip.I__inary Zauthority should not have terminated on the
'""<«.__Valleged siippression of material relevant fact is not detected
'before_:--'the services of the workman is confirmed on
"--.hjco_1_i1p1etion of his probationary period and therefore the
Tguidelines issued by the Managing Director of the
\i/
-5,
Corporation has not been strictly adhered to by the
disciplinary authority and therefore the order of dismissal
passed against the workman is found fault with by
Additional Labour Court and set aside the same if
the Corporation to reinstate him in his
25% back Wages from the date of d;ismis4S'ci;1till'i
reinstatement. V g H V g
10. The correctness of the saidr:.V:AiNard in
the writ petition by the vatiousgrounds
by placing reliance upon ryf"'v:tfit2V'bS'i1pr€H1€ Court
in the case of SEWERAGE
BOARD __ AND ANOTHER'
reported,.in= (568 and also another
Judgment in wherein this court made
an observationin the caselvof fraud, the gravity of offence is
_._also ..;i5_;;tem:a1 andlfuijther the learned Judge made an
obser\{ati01'1_that.a person who practices fraud for achieving '
Vobject icannotfvffperpetuate much less on the ground of
V . delay'."and'--.vther'efore the learned single Judge found fault with
exercise of power by the labour court under section 11A
industrial Disputes Act. 1947 [hereinafter called as the
if :Act'] and held that the substituting punishment denying
it ' " back wages of 75% to the workman, though he has accepted
\<»/
,, 7 ..
the finding of fact of proving the misconduct against the
workman in the place of an order of dismissal was found to
be not justified and therefore the correctness of the same is
questioned by the corporation in the writ petition
grounds and the learned single Judge has accepted~.t_h_e.l:case:l"
of the corporation and quashed the Award by__ai1.owin'gll'pthe
WI'it petition.
11. The correctness of the said orderllp.assed'l..iI1lA.the V
petition by the learned single this
appeal by the appellant {woprknfianp
12. Learned counsel forlthe sought
to justify the findings in answers to
issue Nos. 2,53 11 in the Award
after legal evidence on record
at paragraphs "Fl Award contending that
the same isiiascd on the "guidelines issued in the circular by
_ the Co}ijpora.tion lforthe purpose of regulation 4[9] to pass an
orderuof _Vdisn1iss,ai after lapse of nearly ten years from the
dateliof issuirig~l.:;.the articles of charge and concluding the
V .enquii*y the year 1985, thereafter five years order of
d:is.rnissalV"' passed, which is totally unwarranted and
-_fu'r_th'er'l as on the date of passing order of dismissal, in total
'\/
.. 8 _
the appellant has rendered 20 years of continuous service
and similarly placed persons on the basis of the observations
made by this court in WP No. 33419 of 1998 relating __to a
driver of Davanagere Division of the corporation, i1'1."L\ll'1:1,',('!l1v
the employee was dismissed on the charge .
employment on the basis of a bogusMschoolicertitieatei had
invited the attention of the Managingi .. ofl:"ithé:1Vi_i
Corporation of NWKRTC and N'Ei€.RTClland poi1ited.p:outVVVthatl
dissimilar punishment imposeel:"2h:forVV_p lilie' vvfisimilar
msiconduct committed authority of
the BMTC imposed minor. iwhlenlVthel'l"charges were
established in" therefore this
court is of niisconduct disciplinary
authoritiVeslllllia\le'zV_.r and Varying
penalties account.»toilobsenrations made in the aforesaid
writ petition, vci.rcul'arl"and instructions issued to the
' l'func'tiohai1ies'vi--designated to act as disciplinary authorities
C & R Regulations, the minor penalties
were _in1po_sed liri respect of similarly placed persons whose
prders areproduced as EX.Wl to Ex.W8 is based on which
'the_lelarned Presiding Officer was impressed to set aside the
.___"'.order of dismissal passed against the workman holding that
lithe dismissal order passed under regulation 4E9} in respect
\<\!/
-9-
of this appellant is totally unwarranted and therefore issue
No.3 was answered in the negative holding that the order of
dismissal is not justified by the Corporation and
the basis of another circular dated 2.8.2003 ~
purpose of regulation 4}[9] of the C 8;; R Rgeguiationsjpufhereign
the guidelines Were issued for "app_jo'intrnent"~ lltheii./_:
disciplinary authorities stating 'thatserxdces of tiieleniployees
who fall within the regulation lofthelpc lileguflations,
if alleged suppression d_etee*t_epdg:l'b_efore they are
confirmed on completiongof period of
probation, as may service shall
not be thé"l:l.fcl.eyantvl::;niaterial documentary
evidenceiarid must have weighed
in the of Presiding Officer of the I
Additional tovset aside the order of dismissal
'C if and 'Award olflreinstatement with certain benefits by
'seubstitutingl iiisg._p_jenalties, which was impugned in the writ
petition. 'learned single Judge on the basis of the
. 'decision' of?-the Supreme Court and observations made in the
"xy:;i.t:pegtition referred to in the impugned order has found
with the learned Presiding Officer of the labour court in .
rifollovving the provisions of section 11A of the ID Act by
ignoring the relevant materi 1 documentary evidence Ex.W1
-10..
to Ex.W9 wherein for similarly placed employees, dissimilar
penalties are imposed and the learned single on
examining the circular issued from time to
the approach of the disciplinaryw autho-i"iijes:jimpose'
appropriate penalties under the C__& R. ;its
employees even, if there is either supplression'"or,tvampering:2
of certificates is misconduct the 8: 'reguiations for
which the appellant required to be
disciplined by passing an
13. it court being a fact
the material evidence on
record} if._itA the case on hand warranted
exercisellof inherent power under section
11A.§oi' 'the lDl"A.ctVlkeeping in View the laudable object and
it intel1itriient,_b:of.the insertion of such provision to the ID Act on
international Labour Organization Resolution to
which thi's~.country is a party, therefore exercise of power by
the learned Presiding Officer under Section 11A of the
l --.i§D.Ai':t is based on the undisputed fact of EX.WI to EX.W8
__d.issimilar punishment orders other than the order of
dismissal as has been passed in the case of the workmen
covered in those documents and Ex.W9 the guidelines issued
by the Managing Director of the Corporation for the purpose
\i\;.//
-11..
of regulation 4{9} that after services of a workman who
alleged to have been suppressed the material relevant*"fa.ct or
tampered the school leaving certificate cannot
for passing an order of dismissal and such anFo'rder..c'annot
be made after confirmation of service. of such "V employee.
Therefore, the Award of the labourfieoifnftfl passed in _
workman is perfectly legai andyalid and, they not"
have been interferedgwith by"'the'--learned flsinglevvidudge in
exercise of his judicial learned Presiding
Officer has e2;ercis_ed as the same is
based on of the workman.
Thereforel; 'impugned order passed by the
the Award is beyond his
judicial refievv cpower the same is contrary to legal
' _ ex.-tidenpce on record------arid law on the question that arose for his
V i'co11siderai:ion;
14;. counsel for the Corporation has sought to
xji,istii'yr.--'i:;l'1e order of dismissal and order impugned in this
i' nappneal contending that the workman secured appointment
producing false transfer certificate is proved by the
disciplinary authority, is the finding of fact is recorded by the
learned Presiding Officer of the Labour Court at paragraph-8
in answer to issue No.2. Hence, the iabour court ought not
\t/
- 12 _
to have exercised its discretionary power under section 11A
of the ID Act and set aside the order of dismissal and
substituted its penalty upon the workman. In support' bf this
contention. reliance is placed by her on
decisions:
1. AIR 1996 SC 666 -- UNION OE"i'Nn1A& vs.
M BHAS=l{ARANfiv '
11. 2005 mscc 690~BANK__OF rNo1ix&Ai¢O*riiER'iivS; S
Av1NAs_H D M.AI'~IDi'X,/IKAR ea"
OTHERS 6 i
iii. 2006 [2] SCC 54:} IG OE EOLICE,
' ' _CRPi? ja-OiiiERS» _
iv. 2007 [12}.jSC.C 621 ; IJNIONOF VINOLE & OTHERS vs.
v. 1'-AIR_ 1aé¥i".SQ"653~{'s--.p Cl-IENGALAVARAYA NAIDU vs.
2 . ' " _1'JASvANNATH
Vi. _ AIRll1995 SC--_9A4--._;VK*t§i\/[ARI NEADHURI PATEL vs.
= 'V _ __ ' ADDITIONAL COMMISSIONER,
" ---------- H - TRIBAL DEVELOPMENT 8: OTHERS
illViirthver.observatiOns made by the Labour Court inits
Award _.ferl'jgranting reiief in answering issue No.3 in the
negati'are;' delay in holding the enquiry is not relevant
consideration for the learned Presiding Officer of the Labour
W Court to interfere with the order of dismissal passed against
the workman in support of this contention reliance is placed
\N/
upon the following case laws:
-13..
i. 2007 [1] SCC [L818] 43 - P D AGRAWAL vs.
STATE BANK OF IN DEA 6: OTHERS
ii. 2007 [2] SCC [L818] 668 -- PUNJAB WATER ..
SEWERAGE BOARD VS. RAMSAJ'iV'AN--e .]
And further learned counsel for the respondentVV'~.y§rou_ld.
contend that the employee cannot claim h.as..
played fraud on the Corporation
transfer certificate claiming that he [i:as'epassedV.l.4i§' standardia
which is the prescribed qualification to the 'post question
to secure appointmentzjdin by relying on the
following decisions:
1. 2006 {3} sec [333] -- S1fATExC}i€jf'~IjV._P:Vfvs. RAJKUMAR
_ 2 S}%Rh!A__..
11. cools. [2] NIWARAK GRAHNIRMAN
SANSTHA MARYADIT, INDORE Vs.
_ PRES'iDENT.'V--_INDORE DEVELOPMENT AUTHORITY
'1.e the learned Presiding Officer of the
L] l;~ab'oui'v..co1i1't[holding that there is discrimination against the
appellant';xiforkxnan as the Disciplinary Authority of the
Corporation in respect of similarly placed employees of the
A workmen dissimilar orders were passed as per EX.W1 to
if wherein the enquiry officer has held charges are not
proved in those cases, in so far as reliance placed upon
Ex.W4 to Ex.W8 are concerned, they are not similarly placed
workmen as that of the appellant -- workman, in respect of
\,/
W 14 ..
those persons they had requisite qualification prescribed for
the post and certificates were affirmed by the DDPE. the
instant case, the Head Master of the school from wliorn§"p:hev.is
alleged to have been obtained the transfer "
deposed before the enquiry officer 'of
such certificate and therefore the"i«ori:iersv
have no application to the the "presen"t,case';*w wfience,'-it
the learned Presiding Qfficer should_ not have placed reliance
upon the same and }re'lie'.f the appellant as
awarded.
Director of __for -the purpose of regulation 4E9}
of the Cl Regfii:-hofis,g"'ti1e same pertains to employees.
whogjl have V secured V" employment by suppressing the
their past services and therefore it does not
A applyx to situation of the case on hand and therefore
requested court not to interfere with the order impugned
ll. ' 4" -- pl in this 'appeal.
'7'. it With reference to the aforesaid rival legal contentions,
it "urged on behalf of the parties. the following substantial
questions of law would arise for our consideration.
\V/
-15..
i. Whether the misconduct alleged against the
workman producing fabricated document of
the transfer certificate in answer to
No.2 is legal and vaiid?
ii. Whether the finding of fact recorded
contentious issue No.3" by the jle"c;rned»
Presiding Officer of the :3 it
based on the iegaI_eviden_ce'--on recordfandl';
exercise of his powerby hirri--.unde_r_. if
11A of the,DisputeslAct_is"!egai
and vaiid?~--.._f _ 1
iii. What order?' i
18. tiiiestion No.1: The same is
answered' in favoiirltheworkrnan for the following reasons:
__As could se_en~~~'frorn the Articles of charge dated
the charge is that the appellant -- workman has
false transfer certificate in support of his
fqnaiificatiorificlaiming that he has passed 431 standard in the
Goirerxnnent Kannada Boys Higher Primary Schooi,
2 ~ Srirampuram, Bangalore ---» 560 021. As could be seen from
order of dismissal dated 11.6.2004, passed by the
if "disciplinary Authority. there is a reference to the evidence of
Smt. Girija Bai Keserkar. Head Mistress of the said school,
who was examined before the enquiry officer on 1.8.1997.
\~«/
.. 15 ..
She has stated that the document of the school bearing
No.56/7»6l«--75, according to her it belongs to a student by
name 1\/i.L.l\/Eahalingam. With reference to "
leaving certificate which is signed by the I-iead-'.l:\./ilasterhi'
said school she has stated that shedces not whof_has
signed it. In her cross examinationlieferefthe A e'nq1_iii*y.
officer, she has stated thatls-_he..V_is any'=f'
document to show thatthe tra.nsfer"certific'ate_is_.duplicate,
she is unable to produceg-atteridancefRegister and the fee
remittance Register and has.l"fulrii'1e.r&l' submitted that as
on the date. the.__transferwcertificate issued in
favourtvoflthe. wasnot working as a teacher in
the said school does not know who has signed
the said ce'r.tifi'cate._ also further does not know who
'~ _ was'3"ithf:::I--iead l\lIaster--«of the said school at the time of issuing
V the"Vsaid"tifari'sfer certificate Ex.I\/I3 and she has not taken
.any'iste;$siaffterV she came to know that Ex.M3 is a duplicate
transfevrccertificate for writing to her higher officials. The
" «V fiiidinglllof the enquiry officer in his report to hold Ex.M3 is a
fabricated document is not based on evidence of said
l Headmistress. The said evidence of her on record is not
sufficient to hold that Ex.M3 produced by the appellant is a
fabricated document. The finding of enquiry officer on the
_ 17 _
alleged misconduct for want of legal evidence on record, the
allegation that the transfer certificate produced by the
workman before the selection authority to:
appointment in the Corporation was fabricatedahd
is not proved against him by thewdisciplinarjrf;Authority'.itV'
However, the correctness of the said ea:
Court is not questionedl__v"'*~l:;y the
independently or at the time of Wrditgpetition filed
by the Corporation. need for us to go
into that aspectvof theiamattierl Ewe have made the
above ddxthieknaterial evidence on
to 'out._'the'V:correctness of the finding
recorded Officer of the Labour Court
in answerlte the issue_N'e;'3 in the negative.
'C V' Answer toHthe"'sVubstantia1 question No.2: The same is
arisvverecl in favour of the workman for the following reasons:
iii-giiefarned single Judge. contrary to the iegai
evidence on record and guidelines issued in the circular Ex.
"ii the purpose of regulation 449} has quashed the award
leaf the Labour Court in setting aside the order of dismissal
passed against the workman, as he had found fauit with
learned Presiding Officer in exercising his inherent power by
recording his reasons Mth ing the fact dissimilar
..
punishments were imposed by the disciplinary Authorities of the Corporation in respect of similarly placed ernplvoyeesppon the similar charge of misconduct. Therefore_,j"wejjdo 5n_oi:. propose to record a categorical finding against.theVvAppe.iiant4 .. pp workman that the charge of riiisconductg fabricated transfer certificate 1 {(31 appointment in the Corporation proved-ia"v'--aiid:';orHnot for the reason that we this iudgrnent that finding of the Court on the contentious issu':eVp:y1l\lo.fi;__ rnisconduct is held to be provediis evidence on record and thereforenlit but also error in law. We have stated accept the finding and reasons recorded the §,qf.esiding'lllOfficer of the Labour Court on the " _ corit'eri_tious issue 1539.3 in interfering with the punishment of C ivirnfiposed upon the workman was set aside by lrigiitly exercising his inherent power.
20. " are required to be answer the above questions of i1awA"Ain favour of the workman by affirming the finding of fact C recorded by the learned Presiding Officer of the Labour Court at paragraph--10 of the Award on the contentious Issue No.3. To appreciate the correctness of finding and reasons by the learned Presiding Officer in the Award in answering issue
-19..
No.2 fell for consideration in the dispute adjudicated by him, it would be just and proper for us to refer tovepejilfcular No.KS'1':CO:ADM:RULES:07/605 dated 2.8.2003.;"'&zea__:;§i§i§1v. to that circular. it is an undisputed fact ., the Vice Chairman and the Managing Corporation. KSRW Central' Offi'ces,'= Bangalore issued circular bearing No.KST:CO:LAW:ES"I':2:287:2O0'lVg'20Q.'l'lVl'datedA i*3.8'.20oi, the circular came to be issued' the observations made by this in of in relation to a driver of was dismissed employee and charge based on a bogus school certificate land. are made in the said case thatthe 'd'isciplinary~.Vauthority of the Corporation and the C=..jrporation imposing dissimilar punishment for like and V :similAar._r'niscolnduct and BMTC imposing minor penalty on an 'official whom charges of tampering of school certificatevwas established in the departmental enquiry. The in guidelines from the Circulars dated 13.8.2001 and 2.8.2003 "are extracted as under:
" Circular dated 13.3.2001:
1) The Divisional Controllers and the other Officers functioning as designated Disciplinary Authorities \x/
ii)
iii) .,20.
under the perview of the KSRTC Servants (C & D) Regulations 1971 while disposing of Disciplinary cases against erring employees should confirm to all statutory safe guards afforded to an --«e1nfp--l_oyee enumerated in the KSRTC {C a D) Regulaitionspf' i. The Divisional Controllers and olther powers as Disciplinary Authority "shouldpl.Il10lAf "give -- .. L for dis--similar and vafietii. punishments "as far as possible for siniilar arid offencesllcorninitted by erring employees. D V " --.punis:£inient;"- awarded by the Disciplinary lfsuthorityl 'i'alLsoJs_L1t.Jject to judicial scrutiny by _ Couits of bl'i'.hlerefore, the Disciplinary Authority should ujludiciously View the offences and avoid 1 and dis--similar punishments against erring empioyees.
Circuiiairhdated 2.3.2003:
fihat the service of such employees should not be terminated if such alleged suppression is not detected before they are confirmed on completion of probation or the extended pen'od of probation as the case may be. \\m/
-21..
2. That discharge sirnplicitor cannot be treated as a disqualification nor failure to mention this fact inllfuture application treated as suppression unless or removal is for unsuitability or.._.,u_nsatisfactory.,V' performance of duties.
21. On account of such obserlfations l'rnacle.Vby.l:i:11is Court in the above referred petition, lithas becornev necessary for him to issue the relevant irlstru.ctions.:'to the functionaries to act as disciplinary ¥auth.ol'it'ies" uncierflthe purview of the KSRTC [Ciidre""&l"Recruitinentlip.--Rg.gulations, 1982. As Could be s¢e:1""rro§§.:,1;hé?;pch.ai'1-gel shelet;"'\)lrhen the proceedings are initiated against appellarithunder regulation 4.9 of the C 8: R_ Regulations,'._ isflriot open for the counsel for the to" contend in this appeal that circular ' :"Ex.W9 dated 2.8.2003 is not attracted to the "facts of for the reason that it pertains to employees who .. lhaxhrve secured employment by suppressing the if if particulars of their past services in the corporation. Even utassurning that such circular is not applicable to the facts of the case, then circular dated 13.8.2001 has got application. On the basis of the observations made in the writ petition No.33419/ 1998 referred to in the said circular by this court, {k./' \l«'"
-22-
as per guideline No.2 referred to in the above circular, there is a direction issued to the divisional controller andnother officers, who are exercising powers of disciplinary should not give scope for dissimilar and varied..3punisi1Irie*s1t'y_ as far as possible for similar and lil:e"'p:u.nisVhme1:ts " is committed by erring employees. iijhe iilguidielineiiioifi Circular with all fours is applicable tothe faC--7i;i'b§'l:'eI:§l.lLlO1"l; further the employee in the petition is a driver of Davanagere charge" of gaining employment by producing is --the charge proved and olasieijvations made infgiié case by this Court is the:'treasGn:iVffor saidiiicircular by the Managing Director in this view of the matter, the guidelinesissued circular are applicable to the .....
this fact is evidenced from another circ_um_s'tar1c'e, namely, the learned counsel for the workman plgaced-...reliance upon another decision of this court in H;¢\l:\.iUR4}lNTI-IARAYAPPA's case referred to in another '_H1:i1'1I'€p01'tCd decision of this court in Writ Appeal No.1975 of 2009 [L~KSR'l'C} to which decision, Justice Gopala Gowda is a party wherein the said decision is placed reliance as similar charges of misconduct was alleged against him and \\/
-23..
such Workman, 'who had rendered twelve years of continuous service in which he has not caused any accident, having good driving skill, is one of the factor~«~~tlak'e__I'_i'Iirito consideration by this court to set aside the ordei3of' b and impose lesser punishment upon the. woi'k1nuanp.in"that case, the same is referred to in the"..s_ajd decisicii inthea. appeal filed by the BMTC Awarded of reinstatement of th\e~respor"1dent:' ~xj"workman"invthat case by the learned single it .:'
23. In the CaSe,€;either in"'the"o'rder of dismissal or before the officer}the'"coi*poration did not produce any past 'record of.' the appellant to evidence the fact thatxhe» lacks'"d1iV'i'ng"skill or accident caused over a period of twentylyears of continuous service, undisputedly the teri'niriati_on order is assed a ainst the workman on the false school leaving certificate before the Selection Aitithoiity to get appointment in the Corporation is not passed against the appellant either before the completion of. his probationary period or immediately within a .V ___reasonable period of confirmation of his services. Having allowed the workman to continuously work for more than twenty years in his post and at the belated stage initiating disciplinary proceedings agm and passing an order of _ 24 _ dismissal will completely destroy not only him but also his entire family, who are well settled in life on account"'of the public employment of the appellant is one circumstance must have weighed in the mind Presiding Officer of the I Additionalirabourgl cgvilfilr lI1lll1'1£')7l,C1iVi::.g 'V' that the order of dismissal is not'l'j.us't_ifield in circumstances of the case. Therefore, the same_Was"'set"aside'V and directed reinstatement "of._259~"§b of back wages and denied 75%'-air for nearly about four years with holdirig' 2 increments with cumulative «s_r1bvsta.ntiyel penalties imposed on thellnfolaiqihan exercise _of" his original and inherent powerllunder tile ID Act.
245:' The aboive said important aspect of the matter is not by the learned single Judge, while passing the The learned single Judge proceeds to pass orc;ie1'.VclnAlthe basis of the alleged fraud played by the Aapgpellant and held no equity should be shown in favour of s' such workman is too harsh a punishment in View of the .n gvfiefonnative theory to be adopted is the reason for insertion of section 11A of the ID Act as per International Labour Organisation resolution to which our country is a party. The power under section llA\K£ the Act by the learned -25- Presiding Officer of the Labour Court is rightly exercised by recording valid and cogent reasons by accepting_p.the.r_rlegai evidence. E:x:.Wl to W8, orders against charges are similar to that of this work1na11~»~an~dp l'therei13re" = the there was absolutely no good groundlz corporation in the writ petitioirto interfei'e witl1ll'l'ti2e'_vAwa;rdVof ; the labour court by the learnedlllfiirigle
25. For the Placed upon various decisions of aspects and legal loilthe corporation are tota11ypVinappiic'able_ circumstances of this case, liavingl 'toplthe-fact -that the power under section IIA of the. the labour court to examine the legality of the order of dismissal. Exercise of by the learned Presiding Officer having regard to lguide1ilnets..~lissued by the Vice Chairman/Managing Directoijof corporation, this court cannot term that such ll'""«__l"'*exercise...Zof power by the Labour Court is misplaced lisyrnpathy upon the appellant as the corporation has given _pp_effect to the observations made by the court in the above writ petition of a driver of the Davanagere Division against whom the similar charge of misconduct as that of the appellant was made. Therefore, it cannot be said that exercise of power by \m/ ,, 25 _ the I Additional Labour Court under section 11A of the II) Act amounts to equity jurisdiction exercised by it in faikour of the appellant as observed by the learned cannot be accepted by this court.
26. For the reasons stated su_p1:a,__ the succeed. The appeal is allowed,v'the;in1pu§n_ed 6112009 passed by the kmined sfigaé Judge aithé new * petition No. 13784 of 2008 is We 'restorevviihe Award of reinstatement of the'--..aippelian;jL'% Woifirnan with 25% back Wages and he is.'entitled...to=thesatafy the date of the Award and conse%;»'uenti--aE b_enefits..inc1uding the continuity of sd/-
JUDGE Sd/~ JUDGE