The Management vs Sri S Manjunath
2021 Latest Caselaw 45 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 04TH DAY OF JANUARY, 2021

                       BEFORE

      THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

       WRIT PETITION No.26958/2015 (L - KSRTC)

BETWEEN

THE MANAGEMENT
OF KSRTC
MANGALORE DIVISION
NOW REPRESENTED BY
ITS CHIEF LAW OFFICER
CENTRAL OFFICE, K.H.ROAD
BENGALURU - 560 027
                                       ... PETITIONER

(BY SRI HAREESH BHANDARY T., ADVOCATE (VIDEO
CONFERENCING))

AND

SRI S. MANJUNATH
DRIVER, BADGE NO.9419
AGED MAJOR
REPRESENTED BY GENERAL SE RETARY
KSRTC STAFF AND WORKERS UNION
2ND FLOOR, KSRTC BUS STAND
BEJAI, MANGALURU - 570 004
                                     ... RESPONDENT

(BY SRI V. S.NAIK, ADVOCATE (VIDEO CONFERENCING))

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
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TO ALLOW THIS WRIT PETITION AND QUASH THE AWARD
DATED 05.12.2014 PASSED BY THE INDUSTRIAL
TRIBUNAL,   MYSURU,   IN   REF.NO.153/2012  VIDE
ANNEXURE - E, ETC.

     THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 20.11.2020, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
                        ORDER

The petitioner - Karnataka State Road Transport

Corporation (hereinafter referred to as 'the

Corporation' for short) has called in question the

award dated on 05.12.2014, of the Industrial Tribunal

(hereinafter referred to 'the Tribunal' for short) passed

in reference No.153/2012, setting aside the order of

penalty of withholding of one increment for a period of

four years without cumulative effect and to recover

one month salary in fifteen installments.

2. For the sake of convenience, the parties are

referred to as 'the Corporation' (petitioner) and 'the

Workman' (respondent).

3. Brief facts of the case leading to the filing of

the writ petition are that, the Workman at the relevant

point of time was working as a driver and on

03.06.2007, after completion of a trip on route

No.68/69, brought the Volvo bus to the depot, at

which point of time it was noticed that the windshield

of the Volvo bus had developed a crack which was not

brought to the notice of the officials of the depot. On

inspection, a crack was noticed and a report was

made by the Officer of the depot against the

petitioner. On the basis of the report, wherein it was

stated that the crack was due to the negligent driving

on the part of the Workman, a domestic enquiry was

instituted and charge sheet was issued on

23.01.2008. The Workman replied to the charges

which was found to be unsatisfactory by the

Disciplinary Authority, which lead to conduct of

domestic enquiry. The domestic enquiry culminated in

imposition of penalty of withholding of one increment

for a period of four years without cumulative effect

and to recover one month salary in fifteen

installments.

4. The penalty resulted in reference being made

by the appropriate government to the Industrial

Tribunal at Mysuru, for adjudication of the dispute as

to whether the Corporation was justified in imposing

of said penalty. The Tribunal answering the

preliminary issue as to whether the domestic enquiry

conducted against the Workman was fair and proper,

after hearing both the parties, held it in the

affirmative that the enquiry against the Workman was

fair and proper. After holding it to be fair and proper,

exercising its jurisdiction under Section 11A of the

said Industrial Disputes Act, 1947 (hereinafter

referred to as 'the said Act' for short) allowed the

reference and set aside the penalty and directed the

Workman to be entitled to all the benefits withheld. It

is this award of the Tribunal that is called in question

by the Corporation.

5. Heard Sri Hareesh Bhandary T., learned

counsel for petitioner and Sri V.S.Naik, learned

counsel for respondent.

6. The learned counsel for petitioner -

Corporation would submit that the crack that is

developed in the Volvo bus was due to the way the

bus being driven by the Workman, which was in a

rash and negligent manner and the damage caused to

the bus has costed heavily to the Corporation.

7. The evidence was clear that the Workman had

applied brakes suddenly as a result of which, the

Conductor who was standing, lost control and dashed

into the front glass.

8. He would above all, submit that once the

enquiry is held to be fair and proper and exercising

jurisdiction under Section 11A of the said Act is

available to the Tribunal only in cases of dismissal and

removal from service. He would place reliance on the

judgment of the Apex Court in the case of SOUTH

INDIAN CASHEW FACTORIES WORKERS' UNION

V. KERALA STATE CASHEW DEVELOPMENT

CORPN. LTD., reported in (2006) 5 SCC 201 and

also judgment of a Co-Ordinate Bench of this Court in

the case of THE DIVISIONAL CONTROLLER,

KSRTC, DAVANAGERE DIVISION VS. SRI

H.G.BASAVEGOWDA reported in ILR 2014 KAR

2315.

9. On the other hand, the learned counsel for the

respondent - Workman would vehemently submit that

the evidence before the Enquiry Officer itself was clear

that, in order to avoid a sudden entry of an

Autorickshaw and to avoid that, he had to apply

sudden brake, failing which, it would have resulted in

a serious accident. The learned counsel would submit

that the Workman was prudent enough to avoid a

serious accident for which he was penalized.

10. I have given my anxious consideration to the

submission made by the learned counsel for the

parties and perused the material on record. The only

issue that falls for my consideration is,

Whether the Tribunal could have interfered with

the penalty under Section 11A of the said Act?

11. The facts are not in dispute. The initiation of

the enquiry and imposition of the penalty of

withholding of one increment for a period of four years

without cumulative effect and to recover one month

salary in fifteen installments. This imposition of

penalty resulted in a reference to the Tribunal by

the appropriate government. The Tribunal on the

basis of the pleadings of the parties, answered a

preliminary issue, whether the domestic enquiry

against the Workman was fair, proper and valid, by

holding that the enquiry conducted was fair and

proper.

12. Having held the enquiry to be fair and proper

what remained was, the consideration of the dispute

under Section 11A of the said Act. Section 11 A of the

said Act, reads as follows:

           "SECTION       11A:       POWERS          OF
     LABOUR      COURTS,          TRIBUNALS       AND
     NATIONAL          TRIBUNALS          TO    GIVE
     APPROPRIATE         RELIEF      IN    CASE      OF
     DISCHARGE          OR        DISMISSAL          OF

WORKMEN : Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for

adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct re- instatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:

Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter."

The Apex Court in the case of SOUTH INDIAN

CASHEW FACTORIES WORKERS' UNION V.

KERALA STATE CASHEW DEVELOPMENT CORPN.

LTD., reported in (2006) 5 SCC 201, while

interpreting Section 11A of the said Act, after the

Tribunal has held that the enquiry as fair and proper,

has held as follows:

"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 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."

(emphasis supplied)

The judgment of the Apex Court extracted

hereinabove is followed by the Co-ordinate Bench of

this Court in the case of THE DIVISIONAL

CONTROLLER, KSRTC, DAVANAGERE DIVISION

VS. SRI H.G.BASAVEGOWDA reported in ILR 2014

KAR 2315, wherein, this Court has held as follows it

has held as follows:

"9. The misconduct alleged when established and accepted by the Labour Court on the premise that the material on record is sufficient to prove the charge against the workman, the punishment not being one of dismissal or termination from service, the Labour Court had no jurisdiction to invoke Section 11 -A of the Act to interfere with the order of punishment and reduce the punishment to one of withholding one increment of the year 1997 without cumulative effect and without effecting future increments of the workman, in the light of Section 11

-A of the Act and the decision of the Apex Court in SOUTH INDIAN CASHEW FACTORIES WORKERS' UNION v. KERALA STATE CASHEW DEVELOPMENT CORPN.

LTD. [(2006) 5 SCC 201], more appropriately the following observation:

            "16.....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, xxx"

(emphasis supplied)

In the light of the law laid down by the Apex

court as followed by this Court, the interference of the

Tribunal on the penalty of withholding of one

increment for a period of four years without

cumulative effect and to recover one month salary in

fifteen installments by the Disciplinary Authority, by

invoking its jurisdiction under Section 11A of the said

Act is plainly impermissible. Therefore, the award of

the Tribunal is unsustainable. If the interference of

the Tribunal is not available under Section 11A of the

said Act, in the facts and circumstances of the case,

the examination with regard to, whether the finding of

the Tribunal is justified or otherwise, would not arise.

13. Therefore, the following:

ORDER

a. The writ petition is allowed.

b. The award dated 05.12.2014, passed by the

Tribunal, Mysuru, in reference No.153/2012

stands quashed.

c. The order of penalty dated 26.02.2009,

imposed upon the Workman by the

Disciplinary Authority stands restored.

Sd/-

JUDGE

nvj CT:MJ