Shri.Shankar S/O Basavaneppa ... vs The Management Of Nwkrtc
2023 Latest Caselaw 4227 Kant

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                                                        NC: 2023:KHC-D:7018
                                                          WP No. 104566 of 2019




                              IN THE HIGH COURT OF KARNATAKA,
                                       DHARWAD BENCH

                             DATED THIS THE 11TH DAY OF JULY, 2023

                                            BEFORE

                       THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY

                        WRIT PETITION NO. 104566 OF 2019 (L-KSRTC)

                      BETWEEN:

                          SHRI SHANKAR S/O BASAVANEPPA KABADAGI,
                          AGED ABOUT 53 YEARS, OCC: NILL,
                          R/O AT, POST SHIVAPUR, TQ: GOKAK,
                          DIST: BELAGAVI
                                                             ... PETITIONER
                      (BY SRI. RAVI HEGDE, ADVOCATE)

                      AND:

                         THE MANAGEMENT OF NWKRTC,
                         CHIKKODI DIVISION,
                         REP. BY DIVISIONAL CONTROLLER,
VIJAYALAKSHMI            CHIKKODI DIVISION, CHIKKODI,
M KANKUPPI
                         DIST: BELAGAVI.
                                                                ... RESPONDENT
Digitally signed by
VIJAYALAKSHMI         (BY SMT. VEENA HEGDE, ADVOCATE)
M KANKUPPI
Date: 2023.07.14
12:17:34 +0530             THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
                      227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
                      THE ENTIRE DOCUMENTS OF THE PROCEEDINGS IN KID
                      NO.20/2016 AND AFTER EXAMINING THE SAME AND ALSO TO
                      ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT OR
                      ORDER QUASHING THE AWARD DATED 27.03.2018 IN KID
                      NO.20/2016 VIDE ANNEXURE-E PASSED BY THE LEARNED
                      PRESIDING OFFICER LABOUR COURT BELAGAVI & ETC.

                           THIS PETITION, COMING ON FOR FINAL HEARING, THIS
                      DAY, THE COURT MADE THE FOLLOWING:
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                                  NC: 2023:KHC-D:7018
                                     WP No. 104566 of 2019




                         ORDER

1. The petitioner - workman has preferred the

instant writ petition assailing the award at Annexure-E,

dated 27.03.2018, passed by the Labour Court, Belagavi

in proceedings bearing KID No.20/2016.

2. Heard the learned counsel appearing for the

parties.

3. The petitioner was working as a driver in the

respondent - Corporation since the year 1999. An order of

dismissal was passed against him on 02.05.2016 after

holding an enquiry against him on the allegation that he

was guilty of driving the bus belonging to the respondent -

Corporation in a rash and negligent manner, which had

caused the fatal road traffic accident on 31.10.2014.

Assailing the order of punishment, dated 02.05.2016, the

petitioner had filed a claim statement before the Labour

Court, Belagavi under Section 10(4-A) of the I.D. Act,

1947. In the said proceedings, the Labour Court had

answered the preliminary issue regarding the validity of

NC: 2023:KHC-D:7018 WP No. 104566 of 2019

the domestic enquiry against the respondent - Corporation

on 18.01.2017. The said finding recorded by the Labour

Court has attained finality. The respondent - Corporation

had therefore, examined MW2 on the merits of the case

and also had got marked 9 documents as Exs.R1 to R9.

The workman had examined himself as WW1 and 2

documents were marked on his behalf as Exs.W1 & W2.

The Labour Court thereafter had passed the impugned

order rejecting the claim statement. Being aggrieved by

the same, the workman had filed the present writ petition.

During the pendency of the writ petition, the workman had

died and his legal representatives were brought on record.

4. Learned counsel appearing for the petitioner

submits that the respondent - Corporation has failed to

prove the charges against the workman. He submits that

the Labour Court has failed to properly appreciate the oral

and documentary evidence available on record and has

proceeded to dismiss the claim statement principally on

the ground that the case is covered by the principles of

NC: 2023:KHC-D:7018 WP No. 104566 of 2019

res ipsa loquitur. He submits that the witness examined

on behalf of the respondent - Corporation is not an

eyewitness and even though the eyewitness was very

much available, the respondent - Corporation has not

examined the said witness. He submits that when the

allegation in the present case is not proved, merely for the

reason that the petitioner was imposed with the minor

punishment with regard to his earlier misconduct, the

respondent - Corporation was not justified in issuing the

order of termination against the petitioner. He also

submits that the workman was acquitted by the Criminal

Court on the very same charges. He submits that the

respondent - Corporation has taken a defense before the

Motor Vehicles Claims Tribunal that the workman / driver,

was driving the vehicle in a careful manner and therefore,

it was not open for them to initiate the disciplinary

proceedings against him. In support of his arguments, he

has placed reliance on the Division Bench Judgment of the

High Court of Madras in the case of Tamil Nadu State

Transport Corporation, Tiruchirapalli, rep. by its

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Managing Director and another Vs. P.Karuppusamy

reported in 2008-I-LLJ-460 (Mad). He accordingly,

prays to allow the writ petition.

5. Per contra, learned counsel appearing for the

respondent - Corporation has argued in support of the

impugned award passed by the Labour Court and submits

that the charge sheet material itself clearly prove that the

petitioner was guilty of driving the bus in a rash and

negligent manner. She submits that the bus was

completely on the wrong side and the same has not been

explained by the petitioner. She also submits that the

petitioner has got a past history of seven similar cases and

the past history has been clearly proved by the respondent

- Corporation. She submits that the Labour Court has

appreciated the oral and documentary evidence available

on record and also has placed reliance on several

judgments, which are applicable to the facts and

circumstances of the case and has rightly rejected the

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claim statement of the workman. She accordingly prays to

dismiss the writ petition.

6. I have given my anxious consideration to the

arguments addressed on both side and also perused the

material available on record.

7. The undisputed facts of the case are that, the

bus bearing registration No.KA-42/F-1462, which was

driven by the petitioner / workman on 31.10.2014 had

met with an accident near Masaraguppi Cross and in the

said accident, the rider of the motorcycle had succumbed

to the injuries sustained by him in the accident. The

petitioner was tried in a criminal case for the offences

punishable under Sections 304-A & 279 of the IPC in C.C.

No.132/2015 and in the said proceedings after a

full-fledged trial, the jurisdictional magistrate had

acquitted the petitioner for the aforesaid offences and the

said judgment and the order of acquittal has attained

finality. On the allegation of driving the bus, which had

caused the accident on 31.10.2014, in a rash and

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negligent manner, a domestic enquiry was also initiated

against the petitioner and in the said proceedings, it was

held that the charges against the petitioner was proved

and an order of dismissal was passed by the respondent -

Corporation against the petitioner based on the enquiry

report.

8. In the proceedings bearing KID No.20/2016

initiated by the petitioner assailing the order of dismissal

dated 02.05.2016, the Labour Court, Belagavi had

answered the issue No.1 against the respondent -

Corporation and had held that the domestic enquiry was

not conducted in a fair and proper manner against the

petitioner. The said finding recorded by the Labour Court

had attained finality and it is therefore, the respondent -

Corporation had examined one Shri Appayya

Shivalingayya Adahallimath as MW2 in support of its case

and also had produced 9 documents as Exs.R1 to R9. MW2

is undisputedly not an eyewitness to the accident that had

taken place on 31.10.2014. MW2 is a Depot Manger and

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as on the date of accident, he was in service at

Sankeshwar Depot.

9. During the course of his cross-examination,

MW2 has stated that after receiving an information

regarding the accident, he had visited the spot, which was

about ten kilometers from Sankeshwar and he had

recorded the statement of the Driver and Conductor of the

Bus. He has admitted that the Conductor of the Bus had

stated that the accident was not caused due to the

mistake of the driver. He also admitted that the conductor

had stated that the rider of the motorcycle who had

succumbed to the injuries was driving his motorcycle in a

rash & negligent manner after having consumed liquor and

had dashed against the right side of the bus. He also

stated that when he had gone to the spot, the bus was

parked on the left side of the road. He had admitted that

he was not an eyewitness to the accident. The documents

which are produced by him as per Exs.R1 to R9 are all the

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part of the charge sheet, which was filed against the

petitioner in the criminal case.

10. On the other hand, the workman had examined

himself as WW1 and during the course of his examination-

in-chief, he had stated that the accident had taken place

due to rash and negligent manner of driving by the

motorcyclist. Though he was cross-examined in detail, by

the respondent-Corporation, nothing has been elicited to

disbelieve his version. The conductor of the bus, who was

the eyewitness to the incident, was the best witness to

prove the charge against the workman. However, for the

reasons best known to the respondent-Corporation, they

have not examined the said witness before the Labour

Court. The Criminal Court in full fledged trial, which was

held against the petitioner-workman, has disbelieved the

evidence of the prosecution and has observed that

considering the damage caused to the bike, it shows that

the scene of accident is something different from the

prosecution version and thereby had disbelieved the

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prosecution version. Therefore, it is evident that the scene

of the accident was disbelieved by the Criminal Court.

11. In the said background, it was totally

impermissible for the Labour Court to hold that the

accident in question was proved by the Corporation on the

principles of res ipsa loquitur. In addition to the same,

MW2 has stated that when he has visited the spot, the bus

was parked on the left side of the road. He has also

admitted during his cross-examination that the conductor

whose statement was recorded by him within few hours

from the time of the accident, had stated that the accident

was not caused due to the fault of the petitioner-workman.

The conductor had also stated that the deceased rider of

the bike was driving the motorcycle in a rash and

negligent manner. The judgments cited in support of

workman's case, has been completely overlooked and has

been held to be inapplicable to the facts and

circumstances of the present case by the Labour Court, on

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the ground that in the present case, the accident is proved

by the Corporation on the principles of res ipsa loquitur.

12. In the case of Divisional Controller, KSRTC

and another Vs. Sri.K. Subba Rao, in Writ Appeal

No.1900/1989 disposed of on 05.06.1991, the Division

Bench of this Court had held that the Corporation had not

proved the charge against the bus driver and that the

Corporation has not examined any eyewitness and it has

examined only the reporting officer. Though the said

judgment was squarely applicable to the facts and

circumstances of the present case, the Labour Court

proceeded to overlook the said judgment, on the ground

that the same is not applicable to the case on hand as

principles of res ipsa loquitur is applicable to the case on

hand. This approach of the Labour Court is perverse in

nature. When the Labour Court had answered the

preliminary issue against the workman, it was for the

Corporation to prove its charge against the workman by

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leading evidence, though it was also open for them to

place reliance on the domestic enquiry material.

13. The entire oral and documentary evidence

placed on record by the Corporation do not independently

prove the charge against the petitioner and this aspect of

the matter has been completely overlooked by the Labour

Court, which has held that the Corporation has proved the

guilt of the petitioner on the principles of res ipsa loquitur.

Having regard to the finding recorded by the Criminal

Court that the prosecution had failed to prove the spot of

accident, the principles of res ipsa loquitur would not have

been made applicable to the facts of the present case by

the Labour Court. Since the Corporation had failed to

prove the charges levelled against the petitioner-workman

in the present case, merely for the reason that past

history against the petitioner-workman was proved by the

Corporation, the order of punishment dismissing the

petitioner from service is not justifiable and even on the

said ground, the order of punishment passed by the

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respondent-Corporation needs interference. Under the

circumstances, the following:

ORDER

Writ petition is allowed. The impugned award dated

27.03.2018 vide Annexure-E bearing KID No.20/2016

passed by the Labour Court is quashed.

Since the petitioner-workman has now died, the

respondents shall consider his case as notional

reinstatement with continuity of service only for the

purpose of settling his terminal benefits in favour of his

legal representatives and the said exercise shall be done

by the respondent-Corporation as expeditiously as

possible, but not later than a period of three months from

the date of receipt of certified copy of this order.

Sd/-

JUDGE

Vnp* & Kgk/Ct:Bck