Karnataka High Court
Divisional Controller Nekrtc, Bijapur ... vs Hemaraddi S/O Virupaxappa Biradar on 6 February, 2014
Author: Mohan .M. Shantanagoudar
Bench: Mohan .M. Shantanagoudar
1
IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
TH
DATED THIS THE 6 DAY OF FEBRUARY 2014
PRESENT
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR.JUSTICE B.V.PINTO
WRIT APPEAL NO.50334 OF 2013 (L-KSRTC)
BETWEEN:
The Divisional Controller,
NEKRTC, Bijapur Division,
North East Karnataka State
Road Transport Corporation,
Rep. by its Chief Law Officer
Sarige Sadan Gulbarga. ...Appellant
(By Sri Veeresh B. Patil, Advocate)
AND:
Hemaraddi S/o Virupakshappa Biradar
Age: 58 years, Occ:Ex-Conductor
R/o Gabasavalgi,
Tq. Sindagi, Dist:Bijapur.
... Respondent
(By Sri Sanjay M. Joshi, Advocate)
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This Writ Appeal is filed under Section 4 of the
Karnataka High Court Act, praying to set aside the
Judgment dated 11.06.2013 by the Single Judge passed
in W.P.No.85656/2012 (L-KSRTC) to the extent it
directs 25% backwages to the respondent, further to
allow the writ petition as prayed for therein.
This appeal coming on for Orders this day, the
Court made the following:
JUDGMENT
Accepting the cause shown, the delay of 47 days in filing the appeal is condoned. I.A.No.2/2013 is allowed.
Heard.
The order passed in W.P.No.85656/2012 (L- KSRTC) dated 11.06.2013 is called in question in this writ appeal.
2. Based on the proved charge that the respondent had failed to collect fare from four passengers and failed to issue tickets to such four passengers, he was dismissed from service after holding enquiry. The order 3 of the Disciplinary Authority is set aside by the Labour Court in Reference No.30/2011. The Corporation approached this Court in W.P.No.85656/2012 questioning the award made by the Labour Court. The order of termination of service of the respondent was set aside in the writ petition mainly on the ground that the order dated 25.05.2010 is not preceded by permission under Section 33 (2) (b) of the Industrial Disputes Act, 1947 (for short the 'Act'). Learned Single Judge also relied upon the judgment of Apex Court in the case of Jaipur Zilla Sahakar Bhoomi Vikas Bank Limited Vs. Ram Gopal Sharma reported in AIR (2002) 2 SCC 244 in support of the said ground. No other facts are adverted to by the learned Single Judge.
3. In our considered opinion, learned Single Judge is not justified in ignoring the recent judgment of the Apex Court in the case of Rajasthan State Road Transport 4 Corporation and another Vs. Satya Prakash reported in 2013 AIR SCW 3611 which declares that Section 33 A of the Act has a definite purpose to serve i.e. to provide a direct access to the Tribunal and thereby a speedy relief, instead of seeking time consuming procedure of seeking a Reference under Section 10 of the Act. Once the complaint under Section 33 A of the Act filed by the party was adjudicated like reference and misconduct is proved, it was not open for the learned Single Judge to take reference to Section 33 (2) (b) of the Act. Therefore, the reasoning assigned by the learned Single Judge cannot be accepted in view of the aforementioned judgment in the case of Rajasthan Road Transport Corporation.
4. However, in order to avoid further remand to learned Single Judge, we ourselves perused the material on record.
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5. The Labour Court having held that the enquiry was fair and proper, permitted both the parties to lead evidence. On behalf of the management, Enquiry Officer is examined as MW-1 and one of the checking staffs was examined as MW-2. Records are also produced and marked. The evidence of Enquiry Officer may not be relevant to decide as to whether the workman has committed fault on the date of incident or not. Thus, the only relevant material produced by the management is of MW-2, the checking staff. In the cross-examination MW-2 has stated that he cannot say how many passengers were travelling in the bus. Ex.M- 5 is the statement of passengers recorded by his colleague, however, MW-2 does not know the name of the colleague who has recorded the statement. He further admits that the checking staff did not verify the cash which was with the claimant when they checked 6 the bus so as to ascertain as to whether the claimant has collected fare from the passengers or had not collected fare from the two passengers.
6. Even believing the version of MW-2 in its entirety, we do not find any ground to interfere in the order of the learned Single Judge inasmuch as the evidence of MW-2 is vague and shaky. He does not specifically depose that the cash was verified and he recorded statements of the passengers etc. The person who allegedly verified the cash and who allegedly recorded the statement of the passengers is not examined. Be that as it may, in the absence of adequate material on record, we are of the considered opinion that the Labour Court is justified in setting aside the order of dismissal of the complainant and consequently directing the Corporation to reinstate the workman to the service with back wages. However, we also find that the learned Single 7 Judge is justified in reducing the back wages to 25%. Since the discretion is exercised by learned Single Judge by reducing the back wages to 25%, we do not propose to interfere with the said discretion, particularly when such discretion is exercised judiciously.
7. At this stage, learned counsel for the respondent brings to the notice of the Court that the respondent is already retired and is suffering from cancer.
8. In view of the same, the conclusion reached by the learned Single Judge need not be interfered with.
Appeal fails and the same stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE