Karnataka High Court
Karnataka State Road Transport ... vs A. Ramanna on 7 March, 2001
Equivalent citations: ILR2001KAR2914, (2001)IILLJ1212KANT, 2001 AIR - KANT. H. C. R. 1574
Author: D.V. Shylendra Kumar
Bench: Ashok Bhan, D.V. Shylendra Kumar
JUDGMENT D.V. Shylendra Kumar, J.
1. The Karnataka State Road Transport Corporation, employer of the respondent has preferred this Appeal, being aggrieved by the order dated June 29, 2000 passed by the learned single Judge of this Court in W.P. No. 37687/1998. Affirming the award passed by the Labour Court, Mangalore, in I.D. Application No. (LCM)-126/19 dated March 20, 1998, praying for setting aside the order of the learned single Judge and also for quashing of the award and for other incidental reliefs.
2. The brief facts leading to the above Appeal are that the respondent/workman who was working as Conductor in the service of the appellant/Corporation in the year 1968 onwards was found to have committed certain acts of misconduct while working as a conductor. It appears that the respondent was conducting the Corporation bus bearing MYF-9821 which was plying on Mangalore-Puttur Road and while so plying, the bus was inspected on November 24, 1985 by the Inspecting Squad of the Corporation and found that the Conductor had not issued tickets to some passengers but had collected fare from them and in view of the same, an Article of charge dated December 31, 1985 came to be issued which reads as under:
a) That on November 24, 1985 while conducting vehicle No. 9821 on Mangalore-Puttur Road on central line checking squad, Mangalore, checked the bus bearing No. MYF-9821 at Pane-Mangalore and found 38 passengers in the bus and found that (sic) the first respondent had failed to issue tickets to 4 passengers travelling from Mangalore to Pane-Mangalore despite collection of the requisite fare of Rs. 3/- each and pilfered Rs. 12/-.
b) That the first respondent had failed to issue tickets to 2 passengers travelling from B.C. Road to Pane - Mangalore despite collection of Rs. 0.75ps. each and pilfered Rs. 1.50.
Workman having denied the charges, the appellant conducted an enquiry into the incident and for determining the correctness or otherwise of the charges levelled against him under the provisions of the Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations 1971. Pursuant to the enquiry the disciplinary authority passed an order dated April 6, 1987 holding that the charges were held proved against the Conductor and accordingly imposed punishment of dismissal from service.
3. The respondent/employee questioned the correctness of this dismissal by seeking a reference before the Labour Court, Mangalore, by filing an Industrial Disputes Application (LCM) 126/1988 under the provisions of Section 10(4-A) of the Industrial Disputes Act, 1947 as amended by Karnataka Act 3/1988.
4. On the basis of the respective pleadings of the parties before the Labour Court, the Labour Court framed three issues as under:
a) whether the D.E. against applicant is proper and valid?
b) whether the order of dismissal is legal and valid?
Whether the appellant is entitled for reinstatement?
5. The first issue being treated as preliminary issue was taken up and it was answered against the appellant/management holding that the departmental enquiry was not proper and valid as per the order dated March 14, 1995 passed by the Labour Court in this regard.
6. Thereafter, the management was given an opportunity to lead evidence to prove the charges and the appellant/management led evidence.
7. On assessment of the material before Court, the Labour Court came to the conclusion that while the Court cannot conclude that the first charge is proved against the workman by giving benefit of doubt to him, the Labour Court held on the second charge that, even on the admitted evidence of the workman, the second charge is made home. However, in this regard, the Labour Court has sought to mitigate the rigor of this charge by surmising that the workman might not have intended to cause loss to the management by non-issue of tickets. In the background of such a finding given by the Labour Court, the Labour Court has examined the possibility of sustaining the order of dismissal imposed on the respondent-workman and being of the view that the punishment of dismissal being disproportionate to the misconduct committed by the respondent/workman as found by the Court concluded that the ends of justice will be met if punishment is restricted to denial of 50% of back wages from the date of order of the dismissal till the resumption of duty by the workman. The Labour Court observed this on noticing of the fact that the workman had been taken on duty during the pendency of the proceedings, may be perhaps as the preliminary issue regarding validity of the domestic enquiry had been answered against the management as per order dated March 14, 1995.
8. One another aspect which weighed with the Labour Court for holding that the punishment of dismissal from service was grossly disproportionate to the misconduct is the circumstance under which the disciplinary authority had taken note of certain 103 default cases in which the workman was involved earlier for which he had suffered some minor penalties and had been asked upon to improve his performance as reflected in the past record of the workman maintained by the Corporation.
9. In this regard the Labour Court purporting to follow the ratio laid down in the case of B. Nagaraj v. Karnataka State Road Transport Corporation l993-III-LLJ(Suppl)-527 (Kant-DB) held that the past record indicating involvement of the workmen in 102 default cases earlier cannot be taken into consideration as the workman had not been appraised of the same and had not been accorded an opportunity of hearing to have his say in the matter.
10. In this view of the matter, the Labour Court proceeded to ignore the past record of the workman and if it is so ignored concluded that the punishment of dismissal imposed by the management on the misconduct, committed by the respondent.
11. It is as against this order of the Labour Court, the management preferred writ petition to this Court in Writ Petition No. 37687/1998.
12. The learned single Judge has held that there is no scope for interference with the award of the Labour Court and with regard to the aspect of the Labour Court not taking into consideration the past record of the workman indicating involvement in 103 default cases and imposing minor punishment held that the said aspect of the matter having been brought to the notice of the Labour Court only, did not amount to strict compliance under the provisions of law and as such, the award of the Labour Court did not suffer any infirmity and the punishment imposed was just and proper. Accordingly, the writ petition was dismissed.
13. The respondent had been issued with notice and is represented by counsel. With the consent of the learned counsel for the appellant and the respondent, the matter was taken up for final disposal and has been heard on merits.
14. Ms. Meena Ramachandra, learned counsel appearing on behalf of the appellant contended that the learned single Judge and the Labour Court was not justified in holding that the punishment of dismissal from service was disproportionate to the misconduct committed by the respondent/workman and the Labour Court was not justified in setting aside the order of dismissal. The learned counsel submits in this regard that when once even the Labour Court found that one of the two charges levelled against the respondent/workman had been proved, the said charge also indicating grave misconduct on the part of the workman who failed to issue tickets. After collecting fare, the Labour Court was wholly unjustified in holding the punishment of dismissal to be disproportionate to such a grave charge. In this regard, submission of the learned counsel is that, when once a charge involving a grave misconduct on the part of the workman/Conductor is proved, interfering with the punishment imposed by the management amounts to showing uncalled for sympathy in favour of the delinquent/workman defeating the very object and purpose of maintaining proper discipline in the Corporation.
15. Learned counsel for the appellant has placed strong reliance on the decision of the Apex Court rendered in the case of Karnataka State Road Transport Corporation v. B.S. Hullikatti 2001 SCC (L&S) 469 : 2001-I-LLJ-725. The Supreme Court in this case has set aside the award of the Labour Court reducing the punishment of dismissal into one of reinstatement with 50% back wages even after finding on the evidence led before the Labour Court, that one of the allegations against the Conductor that he had issued tickets of lesser denomination as against the correct denomination was proved by the management and had passed the award directing reinstatement with 50% back wages which award had been confirmed by the Single Bench as well as the Division Bench of the High Court; holding that when once Labour Court had found that allegation of such nature had been proved, interfering with the order of dismissal only amounted to showing uncalled for sympathy in favour of the workman. In this regard the Supreme Court had held that past record of the workman indicating that the workman had been found guilty in as many as 36 times prior to the incident in question was also of considerable significance.
16. The learned counsel for the appellant has also submitted that the respondent workman having been found involved in a series acts of misconduct and such act of misconduct being not a stray incident but yet another in a series of such misconduct on the part of the workman inasmuch as his past record showed that the workman had been involved in 102 such cases of misconduct for which he had been warned and imposed minor penalties and more over, the workman having continued the same, the management had totally lost confidence to continue such an erring employee in its service and as such, the Labour Court was wholly unjustified in imposing reinstatement. It is submitted by the learned counsel that the award of the Labour Court reinstating such a workman only amounted to rewarding an erring employee and placing premium on misconduct. In support of this submission learned counsel has placed reliance on the decision of the Hon'ble Supreme Court reported in Janatha Bazaar (South Canara Central Co-operative Wholesale Stores Ltd.) and Ors. v. Secretary, Sahakari Noukarara Sangha and Ors., AIR 2000 SC 3129 : 2000-II-LLJ-1395. The learned counsel appearing on behalf of the workman/ respondent has fully supported the award of the Labour Court as well as the order of the learned single Judge contending that the punishment of denial of 50% back wages from the date of dismissal till the date of resumption of duty by the workman is just and sufficient and the question of past misconduct of the workman as reflected in the above record indicating involvement in 102 cases cannot be used as a relevant material for the question of arriving at the quantum of punishment to be imposed on the workman.
17. On a careful examination of the material on record, pleadings and after hearing the learned counsel for the appellant and the respondent, we are of the view that this Appeal is to be allowed for the reasons as under:
The Labour Court having found that one of the charges levelled against the respondent/workman was found proved, even after having set aside the domestic enquiry and based on the evidence led before the Labour Court ought not to have interfered with the order of dismissal to convert the same into one of reinstatement with denial of back wages to 50%. In this regard, the ratio laid down by the Apex Court in the two cases referred to above and relied upon by the learned counsel for the appellant is squarely attracted to the facts of the present case. In fact, the Labour Court was wholly unjustified in invoking the provisions of Section 11A of the Industrial Disputes Act to the case in hand even after it found that one of the charges as against the workman was sustained and made home by the management. We are also of the view that the Labour Court erred in this regard in holding that the past record of the workman should be ignored for the purpose of examining the proportionality or the quantum of punishment. We say this for two reasons. Firstly, for the reason that past record of the workman is an aspect which finds statutory recognition in Regulation 25 of the Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations 1971 which gives a statutory recognition to the past record of a workman namely that the past record, is one of the circumstances to be taken into consideration while deciding on the quantum of punishment.
To say that taking into consideration past record without either appraising the workman of the same or without issuing show-cause-notice proposing the punishment to be imposed when the past record is also taken into consideration will amount to violation of principles of natural justice may not be very apt as Regulation 25 governing the same is statutory and it is not as though a surprise is spring on the workman. If the workman had suffered earlier punishment which again will be within his knowledge, the question of workman being ignorant of the same also does not arise. Moreover, past record is not a material for holding the delinquent/workman as guilty of a charge in the present enquiry but is only a circumstance to be taken into account while determining the commensurate penalty. For these reasons we hold that the Labour Court is in error in refusing to take into consideration or not taking the past record as a circumstance justifying the punishment of dismissal which had been imposed by the disciplinary authority and for not sustaining the order of dismissal. Secondly and more importantly we are also of the view that the order of dismissal passed by the disciplinary authority having taken into consideration the past record of the workman and having relied upon the same and this being part of the record before the Labour Court and the Labour Court having set aside the domestic enquiry as not being fair and proper and having allowed opportunity to lead evidence to the parties, the past record of the workman was an aspect which was well within the knowledge of the parties including the workman. The Labour Court itself having referred to this aspect of the matter, it is very obvious that the workman was aware of this aspect and Court have placed material and even could have made appropriate submissions on this aspect before the Labour Court. In this context we are of the very clear view that the Labour Court was not justified in holding that the reliance and consideration of the past record of the workman on the aspect of quantum of punishment and the order of dismissal being based on the same cannot be sustained as being in violation of the principles of natural justice. We are of the view that the Labour Court is not correct in placing reliance on the decision of this Court reported in B. Nagaraj v. K.S.R.T.C. for holding that it was "in violation of principles of natural justice".
18. In the decision rendered in Janatha Bazaar (South Canara Central Co-operative Wholesale Stores Ltd.,) and Ors. v. Secretary, Sahakari Noukarara Sangha and Ors., (supra) the Hon'ble Supreme Court has observed that when once the Labour Court gives a finding of misconduct on the part of the charge sheeted workman, the Labour Court is bound to respect the punishment imposed by the management and commits a material error in setting aside the order passed by the management and reinstating the workman with back wages. In this regard, the Apex Court has observed that, "once an act of misappropriation is proved, may be for a small or large amount there is no question of showing uncalled for sympathy and reinstating the employee into service". The Apex Court has laid down this ratio after a brief reference to earlier case law of the Court on this aspect of the matter and found that the High Court also committed a material error in confirming such erroneous finding of the Labour Court directing reinstatement of the workman by setting aside the order of dismissal passed by the management. Applying the ratio laid down by the Apex Court in Janatha Bazaar (South Canara Central Co-operative Wholesale Stores Ltd.,) and Ors. v. Secretary, Sahakari Noukarara Sangha and Ors., this Appeal has to be allowed.
19. In view of the above and for the reasons mentioned, we are of the view that the award of the Labour Court directing reinstatement of the workman with 50% back wages is not sustainable and the Labour Court is in error in setting aside the order of dismissal passed by the disciplinary authority as against the workman. Accordingly, we set aside the order of the learned Single Judge passed in Writ Petition No. 37687/1998 and quash the award of the Labour Court dated March 20, 1988 in I.D. Application (LCM) 126/1988 and confirm the order of dismissal and confirm punishment imposed on the workman by the appellant/management.
20. Under the peculiar circumstances of the case, parties to bear their respective costs.