The Divisional Controller, ... vs Santoshamma W/O Late John ...
2022 Latest Caselaw 152 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 5TH DAY OF JANUARY 2022

                            PRESENT

     THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
                              AND
       THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA

         WRIT APPEAL NO.200163/2019 (L-KSRTC)

BETWEEN:
The Divisional Controller
NEKRTC Gulbarga Division
By its Chief Law Officer
                                            ... Appellant

(By Sri Mahantesh Patil, Advocate)

AND:
1.     Santhoshamma
       W/o Late John Jambayya

2.     Vimalaksi
       D/o Late John Jambayya
       Age: 26 years

3.     Shobharani
       D/o Late John Jambayya
       Age: 23 years

4.     Jorge S/o Late John Jambayya
       Age: 17 years, Minor

       Respondent No.4 is U/g of
       Natural mother respondent No.1
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      All are R/o C/o B.R. Patil
      S.B. College Road, Raichur - 584 101
                                               ..... Respondents

(By Sri B.C. Jaka, Advocate)

      This Writ Appeal is filed under Section 4 of the Karnataka
High Court Act, praying to set aside the order dated 12.03.2019
passed by the learned Single Judge in W.P.No.81192/2011
(L-KSRTC) and consequently allow the said writ petition.

       This appeal coming on for hearing on Interlocutory
application this day, K.S. Hemalekha J, delivered the following:

                          JUDGMENT

This intra court appeal under Section 4 of the Karnataka

High Court Act is filed by the Divisional Controller, NEKRTC,

Gulbarga Division (hereinafter referred to as the 'Corporation'

for brevity) assailing the order dated 12.03.2019 passed by

the learned Single Judge in W.P.No.81192/2011 (L-KSRTC).

2. The workman filed a petition in Reference

No.29/2004 under Section 10(1)(c) of the Industrial Disputes

Act, 1947 before the Presiding Officer, Labour Court,

Gulbarga seeking for setting aside the order of dismissal

passed by the Corporation vide order bearing

No.NEKRTC.RCH.ABSM.2876:98:3782:01 dated 14.03.2002

and also for reinstatement with full back wages and continuity

of services. The Labour Court, by its order dated 25.09.2009

was pleased to partly allow the Reference setting aside the

order of dismissal and ordered for the payment of arrears with

consequential benefits of the deceased workman to his legal

representatives and also directed the Corporation that if

KSRTC Rules and Regulations permits, then consider for

appointment on compassionate ground to any one of the legal

representative of the deceased workman. Aggrieved by the

same, the Corporation preferred W.P. No.81192/2011 before

the learned Single Judge. The learned Single Judge was

pleased to dismiss the petition filed by the Corporation holding

that the Corporation has not made out a case to interfere with

the order of the Labour Court in Reference No.29/2004.

Aggrieved by the same, the present appeal is filed by the

Corporation.

3. Brief facts of the case are that, one John

Jambayya was appointed as a Driver with the appellant-

Corporation in the year 1990 and while discharging his duty on

21.08.1998 as a driver to the bus bearing No.KA-32/F-107

plying on the route Raichur to Yemignoor and the bus breaks

down around Gelsugur Camp. The Duty conductor

immediately went to the Raichur Depot intimating the break

down of the bus. As nobody attended the vehicle for a long

time, the driver who was waiting for a long time feeling hungry,

visited the hotel nearby and during that time, it appears that

the mechanics had come to the spot of the breakdown of the

bus and found that there was no mechanical defect in the bus.

After repairing the said bus, the mechanics bought the bus to

the depot and finding that the driver was not present at the

time of breakdown of the bus and when the mechanics

arrived, the same was reported to the Corporation. The Depot

Manager, considering the report of the mechanics has

reported that the workman-driver has deliberately made the

breakdown of the vehicle and that there was no mechanical

defect and he has left the duty spot without taking care of the

vehicle. On the basis of this report, disciplinary authority

conducted an enquiry and passed an order of dismissal on

14.03.2001. Challenging the same, the workman-driver filed a

Reference before the Labour Court, seeking for setting aside

the order of dismissal and sought for reinstatement with full

back wages and continuity of service.

4. Before the Labour Court, the Corporation

appeared and filed their statement contending that the

workman-driver has left the spot after the breakdown of the

vehicle willfully and the vehicle was unattended and there is a

misconduct on behalf of the workman-driver.

5. During the pendency of the Reference, the

workman-driver died and his wife and children were brought

on record as the legal representatives. Before the Labour

Court, the wife of the deceased-workman examined herself as

WW.1 and no documents were marked on her behalf. On the

other hand, the Corporation examined one Neeranjan B.C.,

the Depot Manager, NEKRTC, Raichur as MW.1 and got

marked Exs.M1 to M7. The Labour Court, by its order dated

25.09.2009 held that the workman is not entitled for back

wages, as he is found of misconduct having left the duty spot

without taking care about the breakdown vehicle. However,

the Labour Court held that the management has failed to

prove the misconduct of the deceased workman that he

voluntarily broke down the vehicle by removing the bolt of the

gear box kept in the cabin and partly allowed the Reference.

6. The learned Single Judge, in the petition filed by

the Corporation, reconsidering the material on record and the

order passed by the Labour Court has come to the conclusion

that the Corporation has failed to establish that the deceased

workman-driver has wilfully removed the bolt of the gear box,

as such there was breakdown of the vehicle.

7. Heard Sri Mahantesh Patil, learned counsel for

the appellant-Corporation and Sri B.C. Jaka, learned counsel

for the respondents and perused the material on record.

8. It is the contention of the learned counsel for the

appellant-Corporation that the deceased workman-driver has

caused mechanical defect by removing the bolt of the gear

box and as such the disciplinary proceedings initiated by the

Corporation against the workman-driver is just and proper. To

substantiate his argument, he placed reliance on the order of

this Court in W.P.No.84942/2011, wherein under the similar

circumstances, this Court has rejected the plea of the legal

representatives that they are entitled for compassionate

appointment and sought to allow the appeal.

9. The said order dated 01.06.2016 in

W.P.No.84942/2011 (C-KSRTC) relied by the counsel for the

appellant is distinguishable in factual matrix, as in the said

petition, the dismissal order of the workman was still in force

and it was not set aside. Under such circumstances, the

learned Single Judge in the above mentioned writ petition held

that issuing of direction to the Corporation to consider the

appointment of any one of the legal representatives of the

deceased workman on compassionate grounds is not

acceptable. Thus, the said order is not applicable to the facts

and circumstances of the present case.

10. It is an unfortunate petition filed by the workman-

driver against the dismissal of his service for the misconduct

alleged to have been stated by the Corporation that the

workman-driver has willfully removed the bolt of the gear box,

due to which there was a breakdown of the bus. It could be

seen that the allegation of the charge which is against the

workman-driver is not of a grave nature which will conclude for

dismissal of his service from the Corporation. Admittedly, the

breakdown of the bus was due to some technical reasons and

no doubt, the workman-driver was not on the duty spot when

the mechanics arrived for repairing the vehicle. But, this

cannot be attributed as a grave misconduct on the part of the

workman-driver. Considering this aspect, the Labour Court

held that the workman is not entitled for back wages, as he

was not present on the duty spot, but however, held that the

legal representatives of the deceased workman are entitled for

terminal benefits and directed the Corporation to consider the

appointment of legal heirs on compassionate grounds.

11. It is settled law that the misconduct must be either

improper or a wrong behaviour, unlawful behaviour or

forbidden act and mere errors or carelessness or negligence

in performance of duty would not attribute to the dismissal of

the workman from service by the Corporation. Considering all

the aspects, the Labour Court and the learned Single Judge

have rightly held that the order of dismissal is disproportionate

to the misconduct of the workman-driver.

12. Hence, we are of the considered view that the

order of the learned Single Judge does not call for any

interference by this Court and the present appeal filed by the

appellant-Corporation is devoid of merits and is liable to be

dismissed. Accordingly, we pass the following:

ORDER

i. Writ appeal is dismissed.

ii. The order dated 12.03.2019 passed by the learned Single Judge in W.P.No.81192/2011 is hereby affirmed.

iii. No order as to costs.

iv. In view of dismissal of the writ appeal, I.A.2/2019 for stay does not survive for consideration and accordingly, the same is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE LG