Karnataka High Court
The Management Of vs G.R.Kurade on 25 May, 2023
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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WP No. 78393 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
WRIT PETITION NO. 78393 OF 2013 (L-KSRTC)
BETWEEN:
THE DIVISIONAL CONTROLLER,
N.W.K.R.T.C.,
BELGAUM DIVISION,
BELGAUM.
... PETITIONER
(BY SRI. VEENA HEGDE, ADVOCATE)
AND:
1. G.R. KURADE,
AGE: MAJOR, OCC: DRIVER,
R/O. H.NO. 151,
NEAR PRIMARY SCHOOL,
Digitally SUBHASAGLLI, 1ST CROSS,
signed by
RAKESH S GANDHI NAGAR, BELGAUM.
HARIHAR
RAKESH Location: ... RESPONDENT
High Court
S of Karnataka, (BY SRI. SOURABH HEGDE, ADVOCATE)
HARIHAR Dharwad
Date:
2023.05.31
12:08:37 THIS WRIT PETITION IS FILED UNDER ARTICLES 226
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AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT OF CERTOTARI QUASHING THE AWARD DATED
28/01/2010 PASSED BY THE PRESIDING OFFICER, INDUSTRIAL
TRIBUNAL, HUBLI IN ID.NO.39/2005, COPY OF WHICH IS
PRODUCED AS ANNEXURE-A.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 78393 of 2013
ORDER
1. The instant writ petition is filed under Articles 226 and 227 of the Constitution of India with a prayer to quash the award dated 28.01.2010 passed by the Presiding Officer, Industrial Tribunal, Hubballi in I.D. No.39/2005 vide Annexure - A.
2. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
3. Facts leading to filing of this writ petition as revealed from the records narrated briefly are, the respondent is working as a driver in the petitioner- Corporation. On 11.11.1996, at about 08:20 p.m., the respondent was counting his money near the Accounts Section of the petitioner-Corporation. This was objected to by the Divisional Works Superintendent. The respondent therefore got agitated and abused the Divisional Works Superintendent in filthy language. The Corporation therefore issued article of charges against him and proceeded to hold an enquiry. Based on the said article of -3- WP No. 78393 of 2013 charges, the Enquiry Officer submitted a report holding the petitioner guilty of the charges alleged against him and based on the same, the Disciplinary Authority had passed an order dated 17.10.2003 reducing the basic pay of the respondent by two increments with cumulative effect. The said order was questioned by the respondent before the Industrial Tribunal, Hubballi in proceedings bearing I.D. No.39/2005 and the Tribunal by award dated 28.01.2010 partly set aside the order of punishment and modified the punishment by reducing the basic pay of the respondent into one incremental stage in the time scale of wages with cumulative effect from the date of order of punishment. Being aggrieved by the said award, the petitioner- Corporation is before this Court.
4. Learned counsel for the petitioner submits that since the Tribunal has held that the enquiry held against the workman was fair and proper, the Tribunal had exceeded its jurisdiction while exercising its power under Section 11A of the Industrial Disputes Act by interfering -4- WP No. 78393 of 2013 with the punishment imposed on the respondent. In respect of her contention she has placed reliance on the judgment of the Hon'ble Supreme Court in the case of South Indian Cashew Factories Workers' Union vs. Kerala State Cashew Development Corporation Limited and others reported in (2006) 5 SCC 201 and in the case of Bangalore Metropolitan Transport Corporation, Rep. by its Chief Law Officer vs. BMTC and State Transport Noukarara Sangha reported in ILR 2011 KAR 2037.
5. Per contra, learned counsel for the respondents submits that though the Tribunal has held that the enquiry was held by the petitioner-Corporation in a fair and proper manner, by exercising its inherent powers, the Tribunal has modified the punishment on the ground that the punishment imposed by the Disciplinary Authority was disproportionate to the proved charges. He submits that the contentions urged on behalf of the petitioner has been already considered by the Coordinate Bench of this Court -5- WP No. 78393 of 2013 in WP No.77605/2013 which was disposed of on 23.10.2021 and therefore the writ petition is liable to be dismissed.
6. I have carefully considered the arguments addressed on both sides and also perused the materials on record.
7. The Tribunal had framed the following two issues in I.D.No.39/2009:
"1. Whether the departmental enquiry held against the petitioner claimant is fair and proper?
2. Whether the respondent management is justified in passing the punishment order against the first party claimant dated 17.10.2003?"
8. The issue No.1 was answered in the affirmative vide order dated 04.04.2009 and the same has attained finality. Thereafter the Tribunal has passed an award on 28.01.2010 wherein it has held that the evidence before the Tribunal including the contents of the domestic enquiry report clearly goes to show that the alleged misconduct is -6- WP No. 78393 of 2013 proved against the workman by the management and accordingly the Tribunal has held that the Management has proved the alleged misconduct against the workman. However, on the ground that the punishment imposed against the respondent is disproportionate to proved misconduct, the Tribunal has proceeded to modify the same. The question that arises for consideration in this writ petition is:
"Whether the Tribunal was justified in modifying the punishment imposed by the Management on the workman in exercise of its inherent power on the ground that the punishment is disproportionate to proved misconduct?"
9. The Hon'ble Supreme Court in the case of South Indian Cashew Factories Worker's Union Vs. Kerala State Cashew Development Corporation Ltd. and Others reported in (2006) 5 SCC 201 while considering the scope of power to be exercised by the Labour Court under Section 11-A of the Industrial Disputes Act, 1947 in paragraph 16 has held as follows: -7- WP No. 78393 of 2013
"16. The Labour Court had earlier held that the enquiry was properly held and there was no violation of the principles of natural justice and that the findings were not perverse. The vitiating facts found by the Labour Court against the enquiry are erroneous and are liable to be set aside. If the enquiry is fair and proper, in the absence of any allegations of victimisation or unfair labour practice, the Labour Court has no power to interfere with the punishment imposed. Section 11-A of the Act gives ample power to the Labour Court to reappraise the evidence adduced in the enquiry and also sit in appeal over the decision of the employer in imposing punishment. Section 11-A of the Industrial Disputes Act is only applicable in the case of dismissal or discharge of a workman as clearly mentioned in the section itself. Before the introduction of Section 11-A in Indian Iron and Steel Co. Ltd. v. Workmen [1958 SCR 667 : AIR 1958 SC 130] this Court held that the Tribunal does not act as a court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc. on the part of the management. There is no allegation of unfair labour practice, victimisation, etc. in this case. The powers of the Labour Court in the absence of Section 11-A are illustrated by this -8- WP No. 78393 of 2013 Court in Workmen v. Firestone Tyre and Rubber Co. of India (P) Ltd. [(1973) 1 SCC 813 : 1973 SCC (L&S) 341] When enquiry was conducted fairly and properly, in the absence of any of the allegations of victimisation or mala fides or unfair labour practice, the Labour Court has no power to interfere with the punishment imposed by the management. Since Section 11-A is not applicable, the Labour Court has no power to reappraise the evidence to find out whether the findings of the enquiry officer are correct or not or whether the punishment imposed is adequate or not. Of course, the Labour Court can interfere with the findings if the findings are perverse. But, here there is a clear finding that the findings are not perverse and principles of natural justice were complied with while conducting enquiry".
10. In the case of Bangalore Metropolitan Transport Corporation, Rep.by its Chief Law Officer Vs.BMTC and State Transport Noukarara Sangha reported in ILR 2011 Kar 2037, the Coordinate Bench of this Court while considering similar question as raised in the present writ petition in paragraph 11 has held as follows:
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"11. In the instant case, the occurrence of the accident on account of the contributory negligence of the respondent - workman having been well founded and held as established, the punishment imposed being only to withhold two annual increments with cumulative effect, the Industrial Tribunal has no jurisdiction to exercise power under Section 11-A of the Act and substitute the punishment. The Industrial Tribunal has committed illegality by interfering with the punishment imposed by the Management and in reducing the punishment".
11. In the case of The Management of NWKRTC Vs.Sri.S.I.Ghorpade in W.P.No.77605/2013 disposed of on 23.10.2021, the Coordinate Bench of this Court after referring the judgment of the Hon'ble Supreme Court in the case of Coimbatore District Central Cooperation Bank Vs. Coimbatore District Central Cooperative Bank Employees Assn. and Another reported in (2007)4 SCC 669 at paragraph 14 has held as follows:
"14. It therefore follows that though the power to modify and reduce the punishments relating to dismissal or dismissal has been expressly
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conferred under S.11 A of the Act, the internet power to apply the doctrine of proportionality by the Labour Court/Industrial Tribunal or by this Court in exercise of its writ jurisdiction is not denuded and can be applied in appropriate cases depending on facts and circumstances of the case".
12. In the case of Coimbatore District Central Cooperation Bank Vs. Coimbatore District Central Cooperative Bank Employees Assn. and Another reported in (2007)4 SCC 669, while considering the doctrine of proportionality the Hon'ble Supreme Court has held that in our legal system the said doctrine is well settled and in case if it is found that punishment imposed on an employee by management is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny and it is always open to a Court to interfere with such penalty in appropriate cases.
13. Therefore, having regard to the facts and circumstances of each case, doctrine of proportionality would be invoked if only the Courts find that the punishment imposed by the Management is unduly harsh,
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WP No. 78393 of 2013excessive or shocks the conscience and defies any logic. There should be an element of irrationality or perversity in the punishment imposed.
14. In the case on hand, charges leveled against the respondent-workman has been proved by the petitioner-Corporation in accordance with law and the Tribunal has held that the enquiry held against the workman was fair and proper. The punishment imposed by the Management against the workman was by reducing the basic pay of the respondent by two increments with cumulative effect in the time scale of wages and the said punishment cannot be termed to be disproportionate to proven misconduct of the workman. The Tribunal except saying that the punishment is disproportionate to proven misconduct has not assigned any other good reason to interfere with the punishment imposed by the Management against the respondent-workman. Under these circumstances, in my considered view, the Tribunal was not justified in exercising its discretionary power in
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WP No. 78393 of 2013interfering with the punishment that was imposed by the Management against the respondent-workman for proven misconduct. Therefore the question for consideration is answered in the negative.
15. Under these circumstances, the award passed by the Industrial Tribunal which is impugned in this writ petition cannot be sustained. Accordingly the following:
ORDER The writ petition is allowed.
The impugned award dated 28.01.2010 passed by the Presiding Officer, Industrial Tribunal, Hubballi in I.D. No.39/2005 vide Annexure - A is quashed.
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JUDGE Rsh,Kgk/Ct:Bck List No.: 1 Sl No.: 35