Karnataka High Court

The Divisional Controller vs H G Pradeep Kumar on 15 February, 2022

Bench: S.Sujatha, Ravi V Hosmani

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 15TH DAY OF FEBRUARY, 2022

                         PRESENT

          THE HON'BLE MRS. JUSTICE S. SUJATHA

                           AND

        THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
                W.A.No.1278/2021(L-KSRTC)
BETWEEN:

THE DIVISIONAL CONTROLLER
K.S.R.T.C.,MYSURU RURAL DIVISION
BANNIMANTAP, MYSURU.
HEREIN REPRESENTED BY
THE CHIEF LAW OFFICER
K.S.R.T.C.,CENTRAL OFFICES
K.H.ROAD, SHANTHI NAGAR
BENGALURU-560 027.
                                              ...APPELLANT
[BY SRI. SANJEEV B.L., ADVOCATE (PH)]

AND:

SRI. H.G.PRADEEP KUMAR
S/O H.P.GURUSWAMY
AGED ABOUT 37 YEARS
R/O HALAGURU VILLAGE
MALAVALLI TALUK
MANDYA DISTRICT-474 401.
                                            ...RESPONDENT

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER OF THE LEARNED SINGLE JUDGE PASSED IN
W.P.NO.45384/2017 DATED 08.07.2021 AND CONSEQUENTLY
ALLOW THE SAID WRIT PETITION AS PRAYED FOR.
                                  2




     THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, RAVI V. HOSMANI J., DELIVERED THE FOLLOWING:

                          JUDGMENT

Challenging judgment dated 08.07.2021 passed by learned

Single Judge in WP No.45384/2017, this appeal is filed.

2. Brief facts as stated are that respondent is a driver in

employment of appellant (for short 'Corporation'). On

23.10.2013, when respondent was driving bus bearing

registration no. KA-09-F/5037 from Mysore to Davanagere, bus

met with an accident at Shimoga Circle, Harihara town, wherein

a pedestrian by name Mallikarjunappa died on spot. Due to

same, Corporation was required to pay Rs.15,000/- as ex-gratia

to legal heirs of deceased. A criminal case was also registered

against respondent at Harihara police station. As Corporation

suffered financial loss due to accident and even passengers

suffered inconvenience, articles of charge dated 06.02.2014 was

issued alleging that accident was due to rash and negligent

driving by respondent.

3. Respondent filed his reply denying negligence in

causing accident. Not satisfied with his reply, domestic enquiry

was ordered. Same was conducted with due participation of

respondent. On consideration of material produced during

enquiry, Enquiry Officer held that charges leveled against

respondent were proved and submitted enquiry report

accordingly.

4. Taking note of findings of Enquiry Officer and default

history sheet of respondent which included six earlier incidents of

causing accident, wherein he was imposed with minor

punishments, disciplinary authority proceeded to pass an order

dismissing workman from service by order dated 02.12.2014

after complying with requirements of Section 33(2)(b) of

Industrial Disputes Act ('I.D. Act' for short)

5. Challenging order of dismissal, respondent filed claim

petition under Section 10(4-A) of I.D. Act before Labour Court,

Mysore. Same was assigned I.I.D.No.16/2015. On receipt of

notice, Corporation entered appearance and filed objections.

Based on pleadings, Labour Court framed issues. Issue no.1

regarding fairness and propriety of domestic enquiry was taken

up as preliminary issue and answered in affirmative.

6. In view of finding on preliminary issue, evidence led

before Enquiry Officer continued to be evidence before Labour

Court also. As misconduct alleged against respondent was with

regard to causing accident due to rash and negligent driving of

KSRTC bus, for which he was also prosecuted and same was

presumptive in nature. It placed burden of rebutting charges

upon respondent. Respondent examined himself as WW-1 and

marked copies of circulars as Exs.W.1 and W.2. Certified copy of

judgment passed in C.C.No.93/2014 as Ex.W.3 and order of

disciplinary authority as Ex.W.4.

7. On consideration of evidence, Labour Court

proceeded to hold that findings of Enquiry Officer did not call for

interference. However, taking note of contention of respondent

that in case of Sri. Rajashekhar, another driver, who was also

involved in fatal accident, a lesser punishment than dismissal

from service was imposed, Labour Court set-aside order of

dismissal by referring to decision of Hon'ble Supreme Court in

C.A.No.412/2015. In the said decision, it was held that High

Court was not justified in interfering with award of Labour Court,

where it had exercised power under Section 11-A of I.D.Act to

modify quantum of punishment on ground of discrimination

insofar as quantum of punishment between similarly placed

workmen. The Labour Court imposed alternative punishment of

withholding of three increments and Corporation was directed to

reinstate respondent back into service within one month from

date of award with continuity of service and consequential

benefits without back-wages. Aggrieved by said award,

Corporation filed W.P.No.45384/2017 before this Court. Same

came to be dismissed under impugned order, leading to this

appeal.

8. Sri. B.L. Sanjeev, learned counsel for petitioner, at

the outset, submitted that Labour Court committed grave error

in exercising review insofar as quantum of punishment, after

coming to a conclusion that charges alleged against respondent

were proved.

9. It was submitted that there was no dispute about

respondent being involved in a fatal accident. Finding of Enquiry

Officer was that, it was due to rash and negligent driving by

respondent. Labour Court did not interfere with said finding. It

was also not in dispute that due to accident, Corporation was

called upon to pay compensation to legal representatives of

deceased and sustained financial loss on that count. Default

history sheet of respondent also indicated that he was involved

in six earlier instances of causing accident and failed to show

improvement despite imposition of reformative minor

punishments. Such being case, there was no justification for

Labour Court to have interfered with quantum of punishment

after holding charges as proved.

10. Though, above aspects were brought to notice of

learned Single Judge, there was no due consideration of same

and writ petition was dismissed relying upon acquittal of

respondent in criminal case. Learned Single Judge also held that

respondent was meted out with discrimination, though in similar

circumstances, Sri.S. Rajashekhar, who had also caused accident

while driving KSRTC bus resulting in death of a motorcyclist by

imposing penalty of withholding two increments and recovery of

Rs.2,500/- towards damages. It was submitted that case against

Sri. Rajashekhar was under different circumstances, wherein

considering nature of accident and number of years of service, a

reformative punishment was imposed. Therefore, learned Single

Judge erred in comparing dissimilar cases and committed error in

not exercising jurisdiction.

11. It is well settled principle of law that scope of

interference with awards of Labour Courts passed in exercise of

powers under Section 11-A of I.D. Act, under Articles 226 and

227 of the Constitution of India, are extremely limited. Hon'ble

Supreme Court in Sadhu Ram Vs. Delhi Transport

Corporation reported in (1983) 4 SCC 156 and in Ishwarlal

Mohanlal Thakkar Vs. Paschim Gujarat Vij. Co., Ltd.,

reported in (2014) 6 SCC 434, has held that, normally, High

Court does not sit as an Appellate Court over award passed by

Labour Court. Unless a case of perversity or lack of evidence is

made out, High Court would be justified in exercising judicial

review. Similar view is expressed by the Apex Court in Mahindra

and Mahindra Ltd., Vs. N.B. Narawade reported in (2005) 3

SCC 134.

12. In the case on hand, respondent has produced order

of punishment passed in S. Rajashekar's case in Ex.W4. Though

Corporation, denied discrimination, except producing copies of

claim statement, objections and award of Labour Court, no other

material was produced in the Writ Petition to substantiate either

a case of perversity or total lack of evidence to support

conclusions of Labour Court. Copies of articles of charge, reply,

enquiry report and order of disciplinary authority etc., were not

produced. Even order of acquittal in criminal case, which would

have enabled examination of nature of acquittal was not

produced.

13. Under the circumstances, no error can be attributed in

the finding of learned Single Judge in refusing to entertain the

Writ Petition filed by the Corporation. Two reasons are assigned

while passing impugned order. First one is acquittal of

respondent in criminal case and discrimination meted out to

respondent vis-à-vis, Sri. S. Rajashekar being the second.

Reference to acquittal in criminal case is in the context of lack of

material placed before learned Single Judge to take a different

view than taken in criminal case. Even insofar as discrimination,

respondent was 35 years of age during the proceedings before

the Labour Court and considering duration of service remaining,

modification of order of dismissal to withholding of increments

by Labour Court would be justified. Decision of Hon'ble Supreme

Court relied upon by Labour Court in K.V.S. Ram Vs.

Bangalore Metropolitan Transport Corporation reported in

(2015)12 SCC 39, in paragraph no.14, it is held as follows:

14. Once the Labour Court has exercised the discretion judicially, the High Court can interfere with the award, only if it is satisfied that the award of the Labour Court is vitiated by any fundamental flaws. We do not find that the award passed by the Labour Court suffers from any such flaws. While interfering with the award of the Labour Court, the High Court did not keep in view the parameters laid down by this Court for exercise of jurisdiction by the High Court under Articles 226 and/or 227 of the Constitution of India and the impugned judgment1 cannot be sustained.

14. Therefore, no grounds are made out to interfere with

the order passed by learned Single Judge. In the result, we pass

the following: