Karnataka High Court
T Nagaraju vs The Divisional Controller And ... on 30 November, 2022
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF NOVEMBER 2022
PRESENT
THE HON'BLE MR. PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
WRIT APPEAL NO.1039 OF 2022 (L-KSRTC)
BETWEEN:
T NAGARAJU
S/O LATE THIMMA BHOVI,
AGED ABOUT 35 YEARS
R/AT WENGALAPURA POST,
SRIRAMPURA HOBLI,
HOSADURGA TALUK
CHITRADURGA DISTRICT 577 542
...APPELLANT
(BY SRI. M C BASAVARAJU, ADVOCATE)
AND:
THE DIVISIONAL CONTROLLER AND
APPOINTING AUTHORITY, KSRTC
TUMKUR DISTRICT
TUMKUR 572 101.
....RESPONDENT
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE
PASSED IN WP No-13935/2020 DATED 08.04.2021.
W.A.No.1039/2022
2
THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, ASHOK S. KINAGI, J., DELIVERED
THE FOLLOWING:
JUDGMENT
This intra-court appeal is filed under Section 4 of the Karnataka High Courts Act challenging the order dated 08.04.2021, passed in W.P.No.13935/2020 by the learned Single Judge.
2. Parties are referred to as per their ranking before the learned Single Judge. Appellant is the petitioner and respondent is the respondent before the learned Single Judge.
3. Brief facts leading rise to filing of this appeal are as under:
The petitioner was appointed as a Trainee Assistant Artisan on 01.02.2009. The petitioner remained unauthorized absent. The respondent-
Corporation issued with charge memo. The enquiry was conducted and charges leveled against the petitioner are proved. The petitioner was removed W.A.No.1039/2022 3 from service on 19.02.2014. The petitioner raised an Industrial Dispute in I.D.No.15/2006 before the Principal District and Sessions Court, Tumkur. The respondent filed a statement of objections.
4. The learned District Judge framed the following issues:
1. Whether the II party proves that the departmental enquiry conducted by part No.II against party No.I is fair and proper?
2. Whether the order of dismissal passed by II party against the I party dated 19.02.2014 is justified?
3. What order?
Issue No.1 was treated as preliminary issue and the said issued was answered in negative holding that the enquiry was not fair and proper and directed the respondent to lead a evidence on the issue of misconduct as well as victimization. The respondent examined its Reporting Officer as RW.2 and the Authorized Officer was examined as RW.3 and got marked the documents at Exs.R1 to R14. The W.A.No.1039/2022 4 petitioner was examined as PW.1 and got marked the document at Ex.P1. The learned District Judge after recording the evidence and considering the material on record, rejected the claim petition filed by the petitioner and upholding the petitioner involved from service order dated 30.08.2019. The petitioner aggrieved by the same, preferred a writ petition in W.P.No.13935/2020. The Writ Court after reappreciating the material on record, dismissed the writ petition vide order dated 08.04.2021. The petitioner, aggrieved by the impugned orders, has filed this writ appeal.
5. Heard the learned counsel for the petitioner.
6. Learned counsel for the petitioner submits that the petitioner was not well, he was suffering from 'Viral Fever Hepataties' (Jaundice) and he has taken a treatment in a different hospitals. He was advised for the bed rest and he has sent a leave applications to the Depot Manager. He submits that the Depot Manager ignoring the leave applications supported by W.A.No.1039/2022 5 the Medial Certificates, submitted a report to the next Higher Authority alleging that the petitioner remained unauthorizedly absent. He submits that the learned District Judge as well as the learned Single Judge did not consider the material placed on record and passed the impugned order. He submits that the said impugned order is arbitrary and erroneous. Hence, the impugned order is liable to be set aside. Hence on these grounds, he prayed to allow the writ appeal.
7. Perused the records and considered the submissions of the learned counsel for the petitioner.
8. It is not in dispute that the petitioner was appointed as a Trainee Assistant Artisan on 01.02.2009 and he was remained unauthorizedly absent from 18.08.2012 to 23.12.2012 when he was working in Pavagada Depot. Though the petitioner was examined as PW.1. In the course of cross examination, he has admitted his absence from duty from 18.08.2012 to 23.12.2012 though he claimed that he had applied for a leave. But he has not W.A.No.1039/2022 6 produced any material evidence to show that he had applied for a leave. The petitioner has taken a contention that he was suffering from Jaundice. In order to establish that he was suffering from jaundice, he has produced the medical certificate issued by the District Hospital, Tumkur marked at Ex.P1. From the perusal of the medical certificate it does not disclose the nature of sickness and it also does not disclose whether the petitioner was either inpatient or outpatient. Further, in order to establish that the petitioner was suffering from sickness except producing Ex.P1, the petitioner has not examined the doctor who has allegedly treated him. Further, the petitioner in the course of cross examination admitted that prior to the instant case, he was involved in four misconduct case earlier for attaining to unauthorized absent and he was imposed minor penalty. The petitioner is in the habit of remaining unauthorized absent as during the paining period. The respondent issued a show cause notice calling upon the petitioner to come and join. The petitioner did not respond to W.A.No.1039/2022 7 the said show cause notice. The respondent initiated domestic enquiry against the petitioner and appointed an Enquiry Officer. The Enquiry Officer conducted an enquiry and submitted a report recording the finding that the charges leveled against the petitioner are proved. After receipt of enquiry report from the Enquiry Officer, the respondent issued a show cause notice calling upon the petitioner to explain on the enquiry report. The petitioner replied to the said show cause notice. The Disciplinary Authority being dissatisfied with the reply submitted by the petitioner, passed an order of imposing penalty i.e., removal from service. The respondent considering the material on record and also on the report of Enquiry Officer, passed a dismissal order.
9. The respondent has taken a specific defence in the statement of objection contending that trainee is not a workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 (for short 'the Act'). In order to consider the said W.A.No.1039/2022 8 contention, it is necessary to examine section 2(s) of the Act i.e., the definition of workman, which reads as under:
"2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person."
Section 2(s) of the Act does not contemplate trainee as a workman. In the instant case admittedly, the petitioner was only a trainee and he was not brought on a permanent rolls. The Hon'ble Apex Court in the case of MUKESH K. TRIPATHI VS SR. DIVN. MANAGER, L.I.C. & ORS reported AIR 2004 SC 4179 held that the definition of a workman under Section 2(s) of the Act includes apprentice. Further, the Co- ordinate Bench of this Court in the case of W.A.No.100369/2014 disposed of on 18.08.2014 held W.A.No.1039/2022 9 that when the appellant was called up to undergo training and his name was included in the selected list, he false under the Sub. Regulation-1 of Regulation-10 of the KSRTC Servants (Cadre and Recruitment) Regulation and further held that the appellant does not fall within the definition of term 'Corporation servant' under the Act. The petitioner has not produced an order of appointment to the vacant post. In the absence of an order of appointment to the vacant post, the petitioner do not fall within the definition the term 'Corporation Servant' and he being a trainee and not a workman under the definition of the 2(s) of the Act. The learned District Judge considering the point of maintainability of the Industrial Disputes, has rightly held that the petitioner will not fall within the definition of workman as defined under Section 2(s) of the Act and rightly dismissed the claim statement filed by the petitioner. Learned Single Judge on reappreciation of entire material on record, was justified in upholding the order passed in I.D.No.15/2016 has rightly passed the W.A.No.1039/2022 10 impugned order. We do not find any grounds to interfere with the impugned order. Accordingly, we decline to interfere with the impugned order. Hence we proceed to pass the following:
ORDER The writ appeal is dismissed.
In view of disposal of the writ appeal, pending IA does not survive for consideration and is accordingly disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE ssb