Karnataka State Road vs K. Ananda Rao
2022 Latest Caselaw 5655 Kant

                                       W.P.No.58602/2015

                             1

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 29TH DAY OF MARCH 2022

                           BEFORE

       THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

     WRIT PETITION No.58602/2015 (S-KSRTC)

BETWEEN:

KARNATAKA STATE ROAD
TRANSPORT CORPORATION
CHAMARAJANAGAR DIVISION
CHAMARAJANAGAR
BY ITS DIVISIONAL CONTROLLER
REP. BY ITS CHIEF LAW OFFICER              ...PETITIONER

(BY SMT.H.R.RENUKA, ADVOCATE)

AND:

K.ANANDA RAO
S/O.B.KRISHNA RAO
AGED ABOUT 58 YEARS
R/AT NO.2669/1, 2ND MAIN
NANJUMALIGE CIRCLE
MEDARAGRI
MYSORE- 570 001                           ...RESPONDENT

(BY SRI PRAJWAL.K.ARADHYA, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 03.03.2014 (ANNEXURE-F) AND TO QUASH
THE AWARD DATED 03.11.2014 (ANNEXURE-H) PASSED BY THE
LABOUR COURT, MYSORE IN I.I.D.NO.4/2013.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING B GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
                                          W.P.No.58602/2015

                              2

                          ORDER

Heard.

2. On 12.07.2004, the respondent was

discharging duty as driver of bus bearing No.KA-09-F-2890

on Mysuru Kannanoor route. When the bus was proceeding

in Hunsur Town near Kalpataru Hotel, the rider of the

motorbike bearing No.KA-09-EC-1016 met with accident

and succumbed to the injuries. The pillion rider also

suffered injuries.

3. The respondent instead of proceeding further

returned to Hunsur bus stand. Then he tried to proceed to

Kannanoor deviating the route in Hunsur town. The said

deviated road was blocked by placing stones. When he was

trying to return to the bus stand through the accident

spot, mob of 70 to 80 persons stopped the bus. The

respondent alighted from the bus and escaped. The mob

assaulted the conductor, snatched the tray tickets, cash

box, broke the glass of the bus and caused damage to the

bus. On police intervention, the mob was controlled.

4. The petitioner issued Articles of Charge as per

Annexure-B dated 13.05.2005 against the respondent W.P.No.58602/2015

alleging that he hit the motorbike bearing

No.KA-09-EC-1016 and caused death of the rider of the

motorbike and injuries to the pillion rider. It was further

alleged that after causing the accident, instead of

attending the victim and take legal action, he escaped,

leading to untoward incident of the mob attacking the

conductor and destroying the properties of the

Corporation. Due to his act, the service of the bus was

cancelled. Such of his conduct amounts to misconduct.

5. The Articles of Charge was served on the

respondent. He did not submit his reply to the Articles of

Charge. The petitioner appointed the enquiry officer. In

the proceedings in the preliminary enquiry he admitted the

service of copy of the show cause notice and sought to

engage his colleague for conducting the enquiry on his

behalf. He disputed the charge.

6. In the enquiry, the petitioner examined his

presenting Officer. The respondent himself cross-examined

the petitioner's witnesses. He got himself examined in his

defence. But thereafter he did not file his defence W.P.No.58602/2015

statement. The Enquiry Officer on completing the enquiry

submitted the report indicting the respondent.

7. On serving the report of Enquiry and show

cause notice regarding imposition of punishment, the

petitioner by Annexure-E dated 24.07.2012 accepted the

enquiry report and imposed punishment of dismissal of the

respondent from service.

8. The respondent challenged that order before

Labour Court, Mysore in I.I.D.No.04/2013 under Section

10(4-A) of Industrial Disputes Act, 1947. The Labour

Court on the preliminary issue regarding fairness of the

enquiry recorded the evidence of W.W.1 and M.W.1. The

Labour Court by order Annexure-F dated 03.03.2014 held

that enquiry was not fair and proper on the ground that by

the time the enquiry proceedings were going on, the

respondent was transferred to Chamarajanagar Division

and he was not relieved to attend the enquiry proceedings.

Thereafter, the Labour Court recorded the evidence on

merits of the case. The respondent did not lead his

evidence. Only the petitioner examined M.W.2, the person

who reported the incident to the petitioner.

W.P.No.58602/2015

9. On hearing the parties, the Labour Court by

the impugned award Annexure-H dated 03.11.2014 set

aside the order of dismissal, directed for reinstatement

and reduced the punishment to withholding of two annual

increments for a period of two years without cumulative

effect on the following grounds:

(i) The records produced show that motor

cyclist/victim hit the bus from hind side. That is evident

from charge sheet and the sketch.

(ii) The respondent was acquitted in criminal trial.

The respondent is not responsible for the mob causing

damages to the property of the petitioner.

Submissions of Smt. Renuka H.R., learned counsel for the petitioner:

10. Since all opportunities were given to the

respondent, the Labour Court was not justified in

answering the issue particularly with regard to fairness of

the enquiry in favour of the respondent. On rejecting the

enquiry report the Labour Court cannot rely on the same

evidence and hold that the respondent was not responsible

for the accident or the acts of the mob. The Labour Court

re-appreciated the evidence as if an appellate Court in W.P.No.58602/2015

criminal appeal against order of conviction. The acquittal

of the respondent in criminal case is not relevant in

disciplinary proceedings. Despite the respondent not

leading any evidence to prove that the motorcyclist himself

hit the bus, the Labour Court accepted his defence which is

perverse. The very fact of the Labour Court confirming the

disciplinary authority's order of indicting the respondent

shows that it was convinced that the accident and the

subsequent events took place because of the misconduct

of the respondent. Under such circumstances, the Labour

Court was not justified in modifying the punishment order.

Submissions of Sri.Prajwal K. Aradhya, learned counsel for the respondent:

11. M.W.2 had not recorded the submissions of

any of the inmates of the bus or the conductor of the bus.

Ex.M.8 statement of the conductor itself shows that

respondent did not cause the accident. The respondent

was acquitted in the criminal trial. Since the respondent

was not relieved from his work from Chamarajanagar

Division, he was not able to attend to the enquiry

effectively. Therefore, the Labour Court was justified in

holding that the enquiry was not fair, so also the impugned W.P.No.58602/2015

order. This Court cannot re-appreciate the evidence in the

writ proceedings.

12. In support of his contentions, he relied on the

judgment of the Hon'ble Supreme Court in State of

Karnataka and Another Vs. Umesh1.

13. Having regard to the rival submissions the

question that arises for consideration is 'Whether the

Labour Court was justified in setting aside the dismissal

order?'

14. So far as judicial review of the disciplinary

proceedings, the Hon'ble Supreme Court in para 21 of the

Umesh's case referred to supra held as follows:

"21. In the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not re-appreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a disciplinary enquiry. The court in the exercise of judicial review must restrict its review to determine whether: (i) the rules of natural justice have been complied with; (ii) the finding of misconduct is

2022 SCC Online SC 345 W.P.No.58602/2015

based on some evidence; (iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and

(iv) whether the findings of the disciplinary authority suffer from perversity; and (vi) the penalty is disproportionate to the proven misconduct. However, none of the above tests for attracting the interference of the High Court were attracted in the present case. The Karnataka Administrative Tribunal having exercised the power of judicial review found no reason to interfere with the award of punishment of compulsory retirement. The Division Bench of the High Court exceeded its jurisdiction under Article 226 and trenched upon a domain which falls within the disciplinary jurisdiction of the employer. The enquiry was conducted in accordance with the principles of natural justice. The findings of the inquiry officer and the disciplinary authority are sustainable with reference to the evidence which was adduced during the enquiry. The acquittal of the respondent in the course of the criminal trial did not impinge upon the authority of the disciplinary authority or the finding of misconduct in the disciplinary proceedings."

(Emphasis supplied)

15. In the light of the above judgment in the

judicial review of the findings of the disciplinary authority W.P.No.58602/2015

either before the Labour Court or before this Court, the

Court cannot hold a trial. Only thing that has to be seen is

whether the finding of misconduct is based on some

evidence, whether findings of the disciplinary authority

suffer perversity and whether penalty is disproportionate

to the proved misconduct.

16. In the case on hand though the Labour Court

at one stretch holds that the respondent was not

responsible for the accident and subsequent damages to

the property of the petitioner Corporation, goes on to

uphold the findings on the charge. But only reduced the

penalty. The respondent has not challenged that order.

Thereby said order has attained finality. Therefore, the

scope of judicial review regarding proof of articles of

charges is very limited.

17. First of all the impugned order of the Labour

Court is self contradictory. Even in holding that enquiry

was not fair and proper, the Labour Court proceeded on

the premises that the respondent was transferred to W.P.No.58602/2015

Chamarajanagar Division and he was not relieved from

duty, therefore, he could not attend to the enquiry.

18. Annexure-A dated 11.12.2004 the explanation

of the respondent about accident, Annexures-B to D

articles of charges, proceedings of enquiry and order sheet

of the enquiry proceedings show that the respondent

participated in the proceedings. He cross-examined the

management witness, gave his statement and he himself

requested to close the proceedings. Nowhere in his

statement he claimed that he was not given leave of

absence to attend to enquiry. Even in cross-examination

of M.W.1, such suggestions were not made. Therefore the

findings of the Labour Court regarding fairness of the

enquiry were perverse.

19. Whether the accident was due to rash and

negligent acts of the respondent was one thing. But

what should be noted is that after the incident the

respondent left his colleague conductor to the mercy of the

mob and escaped. That is unpardonable. So far as

findings on the order of dismissal, the respondent also

admitted that there was an accident and in that incident W.P.No.58602/2015

rider of the motorcycle died. At one stretch he said that

his bus had not touched the bike. At another stretch he

claimed that rider of the bike hit the bus from hind side.

To substantiate the said defence, he did not lead his

evidence.

20. The Labour Court recorded evidence on the

merits of the case. Moreover the order of the Labour Court

confirming the findings of the petitioner that he committed

misconduct is not challenged. Even the order of

punishment of cutting two increments is also not

challenged. Records clearly show that Labour Court relied

on the material which was not on record and which was

extraneous.

21. So far as acquittal of the respondent in

criminal trial, it is settled law that the acquittal of

delinquent officer in a criminal trial unless it is based on

the same set of evidence is irrelevant. Before the Labour

Court not even the judgment of the Criminal Court was

placed to show on what ground the respondent was

acquitted. Therefore, impugned order Annexure-H is W.P.No.58602/2015

perverse and that is contrary to the law laid down by the

Hon'ble Supreme court in Umesh's case referred to supra.

22. So far as quantum of punishment, since this

Court vide order dated 18.04.2016 granted interim stay

subject to reinstatement of the respondent, he was

reinstated. As admitted by both side the respondent

served in the petitioner's organization and retired on

31.05.2017 on attaining superannuation.

23. Under the circumstances, the petition is

allowed. The impugned order Annexures-F and H are

hereby set aside. The impugned order of dismissal is

hereby confirmed with a rider that the petitioner shall not

recover the pecuniary benefits received by the respondent

during the period of reinstatement by virtue of interim

order of this Court. It is further made clear that the

respondent is entitled to service benefits accrued to him till

the date of dismissal.

Sd/-

JUDGE

KSR/pgg