The Division Controller vs Sri. Kaleemuddin Khan
2023 Latest Caselaw 2740 Kant

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                                                         WP No. 18518 of 2018




                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 1ST DAY OF JUNE, 2023

                                               BEFORE

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

                          WRIT PETITION NO.18518 OF 2018 (L-KSRTC)

                   BETWEEN:

                   THE DIVISION CONTROLLER
                   B.M.T.C., SOUTH DIVISION,
                   SHANTINAGAR,
                   BENGALURU - 27.

                   NOW REPRESENTED BY
                   ITS CHIEF LAW OFFICER,
                   BMTC, CENTRAL OFFICE,
                   K.H. ROAD,
                   BANGALORE - 560 027.                          ... PETITIONER

                   (BY SRI HAREESH BHANDARY T., ADVOCATE)

                   AND:

                   SRI KALEEMUDDIN KHAN
                   S/O. LATE SIRAJUDDIN KHAN,
                   AGED ABOUT 40 YEARS,
Digitally signed
by SHYAMALA        R/AT NO.52/18, 915 MAIN ROAD,
                   BTM LAYOUT, 1ST STAGE,
Location: HIGH     BENGALURU - 560 029.                        ... RESPONDENT
COURT OF
KARNATAKA          (BY SRI KANTHARAJU V., ADVOCATE (V.C.))

                        THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
                   OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE AWARD
                   DATED 27.10.2017 PASSED BY THE III ADDL. LABOUR COURT,
                   BANGALORE IN REF. NO.27/2016 VIDE ANNEXURE-F; AND FURTHER
                   CALL FOR THE RECORDS ON THE FILE OF THE III ADDL. LABOUR
                   COURT, BANGALORE IN REF. NO.27/2016.

                          THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
                   IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
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                                               WP No. 18518 of 2018




                                 ORDER

The petitioner - Corporation is assailing the award

dated 27.10.2017 in Ref. No.27/1026 passed by the III

Additional Labour Court, Bangalore.

2. For the sake of convenience, petitioner is

referred as Corporation and the respondent as workman.

3. The brief facts leading to filing of this writ

petition are that, the respondent - workman was

appointed as a driver-cum-conductor in the petitioner -

Corporation on probation since 03.10.2008. When he was

serving as a conductor, on 23.12.2011 at about 12.50 hrs

was intercepted by the checking squad and on noting the

irregularities of withholding 13 tickets, which were once

sold in the previous trip, the checking squad confiscated

the said tickets, waybill and passed remarks by issuing the

offence memo and submitted the report to the higher

authorities. The article of charges were issued on

06.01.2012, no explanation was submitted by the

workman. The Corporation appointed an Enquiry Officer,

WP No. 18518 of 2018

who conducted enquiry and submitted the enquiry report.

Based on the enquiry report, show-cause notice was

issued to the workman calling upon for explanation as to

why the punishment should not be imposed on the

workman. The workman submitted explanation to the said

show-cause notice. The disciplinary authority taking into

consideration the report of the Enquiry Officer, evidence,

material documents and past history of the workman,

dismissed him from service by order dated 25.11.2013.

4. Against the dismissal order, the workman

preferred an appeal before the appellate authority under

Regulation 31 of Karnataka State Road Transport

Corporation Servants (Conduct and Discipline) Regulation,

1971 which came to be dismissed on 11.04.2014 and the

revision filed by the petitioner under Section 35 of the

Regulation also came to be rejected confirming the order

of the appellate authority. The workman raised a dispute

before the Labour Commissioner for conciliation and the

same was withdrawn to prefer dispute before the Labour

WP No. 18518 of 2018

Court and accordingly, raised the dispute before the

Labour Court.

5. The Labour Court, on the basis of the pleadings,

framed the following:

ISSUES

(i) Whether the second party corporation proves that the Domestic enquiry conducted against the first party is fair and proper?

(ii) Whether First party proves that order of dismissal bearing No.¨ÉªÀĸÁ/zÀ«/²¸ÀÄÛ/PÁ-

3/1373/8838 dtd: 25.11.2013 is illegal and arbitrary and liable to be set aside?

6. In order to substantiate his case, the workman

has examined himself as WW.1 and closed his side, got

marked Exs.W-1 to W-11 and during the cross-

examination, got marked Exs.M-16 to M-19. The

Corporation examined the Establishment Superintendent,

T.M. Raju as MW.1 and got marked Ex.M-20-history sheet.

On hearing both sides, the Labour Court, by its order held

WP No. 18518 of 2018

that the workman has proved that the order of dismissal

dated 25.11.2013 is illegal, arbitrary and liable to be set

aside and accordingly, passed an order setting aside the

order of dismissal passed by the Corporation and directed

the Corporation to reinstate the workman with continuity

of service with all consequential benefits with 15% back

wages from the date of the dismissal order till the date of

reinstatement by withholding five annual increments with

cumulative effect.

7. Aggrieved by the said order, the present

petition by the corporation.

8. Heard Sri Hareesh Bhandary T., learned counsel

for the petitioner-Corporation and Sri Kanthraju V.,

learned counsel for the respondent-workman.

9. Learned counsel for the Corporation would

contend that though the Labour Court held that possessing

and issuance of tickets once sold, it certainly creates in the

mind of the Court and the Court holding that the workman

WP No. 18518 of 2018

had an ulterior motive and Corporation has proved the

misconduct was not justified in setting aside the order of

dismissal directing reinstatement and that the workman is

entitled for consequential benefits and 15% backwages.

Learned counsel would also contend that the Labour Court

has failed to notice the past history of the workman who

has committed 29 offences of similar nature and is in the

habit of pilferage and not discharging his duties properly.

Learned counsel further contended that the Labour Court

has not assigned any reason while coming to the

conclusion that the quantum of punishment imposed

appears to be disproportionate and in support of his

contention, learned counsel has relied upon the judgment

of the Apex Court in the case of Regional Manager,

U.P.S.R.T.C., Etawah & others vs. Hoti Lal and

another [AIR 2023 SC 1462] (Regional Manager

UPSRTC). Stating this ground, learned counsel would

contend that the order of the Labour Court needs to be set

aside and the petition deserves to be allowed.

WP No. 18518 of 2018

10. Per contra, learned counsel appearing for the

respondent while justifying the award passed by the

Labour Court would contend that the Labour Court has

meticulously considered and held that the punishment

imposed by the Corporation is disproportionate to the

misconduct of the workman and would contend that the

same does not call for any interference by this Court and

sought for dismissal of the writ petition.

11. Having heard learned counsel for the parties,

the point that arises for consideration in this petition is,

"Whether the petitioner-Corporation has made out a case to interfere with the order of the Labour Court in the peculiar facts and circumstances of the case?

12. This Court has carefully considered the rival

contentions urged by the learned counsel on both sides

and perused the material on record.

13. It is not in dispute that the workman was

appointed as driver-cum-conductor on 30.10.2008 and

was placed on probation with effect from 28.11.2010 and

WP No. 18518 of 2018

when he was serving in the said status, due to the

irregularities of holding 13 tickets, once sold in the

previous trip with an intention to re-issue the same, the

checking squad confiscated the said tickets and way bill

and passed remarks by issuing the offence memo and the

checking squad submitted the report to the higher

authorities and article of charges were issued to the

workman on 06.01.2012, which reads as under:

"On 23.12.2011 the bus you are conducting on the route No.37/2 356C JP. Plying from Electronic City to KBS and it is noticed that you have committed the following ingredients:

That you are holding of 3 tickets denomination of Rs.4/-, 7 tickets denomination of Rs.11/-, 1 ticket denomination of Rs.13/- which are sold in 4th trip with intention to reissue the same."

14. To the said charges the respondent has not

offered any explanation. The Corporation on appointing

the Enquiry Officer conducted enquiry and the Disciplinary

Authority, based on the enquiry report, evidence and

documents, dismissed the workman from the service. This

WP No. 18518 of 2018

being so, the workman raised a dispute before the Labour

Court and the Labour Court took note of the offence and at

para No.14 comes to the conclusion that possessing issued

tickets by the conductor certainly creates doubt in the

mind of the Corporation and also in the mind of the Court

that with an ulterior motive only the tickets might have

been possessed by the conductor and also held that if it is

assumed that the Corporation has proved the commission

of misconduct by the workman, the quantum of

punishment imposed appears to be disproportionate. The

Apex Court, in the case of Regional Manager UPSRTC,

has held at para No.10 as under:

"10. It needs to be emphasized that the Court or Tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment does not commensurate with the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Court's order would go to show, no reasons whatsoever have been

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WP No. 18518 of 2018

indicated as to why the punishment was considered disproportionate. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at.

Failure to give reasons amounts to denial of justice. (See Alexander Machinery Dudley Ltd. v. Crabtree (1974 LCR 120) A mere statement that it is disproportionate would not suffice. A party appearing before a Court, as to what it is that the Court is addressing its mind. It is not only the amount involved but the mental set up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, highest degree of integrity and trust-worthiness is must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of learned Single Judge upholding order of dismissal."

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WP No. 18518 of 2018

(emphasis supplied)

The Apex Court has laid down the law that mere

statement by the Labour Court that punishment is

disproportionate would not suffice. The Labour Court has

to assign reason as to how the punishment is

disproportionate to the misconduct of the workman.

15. It is not the question whether a conductor

misappropriated a rupee or Rs.2/- or Rs.5/- or Rs.10/-......,

it is not the amount that is misappropriated, but the

question of faith and confidence of the employer on the

employee. When a conductor is found to be

misappropriating the money while discharging his duty,

will any employer continue the employee in service? If

only at one time it is found, then perhaps another

opportunity could be given, but in this case, the past

service record of the workman is found to be habitual

offender and has committed 29 offences of similar nature

and had a past history of re-issuing the tickets. One of

the factors to be considered while imposing punishment is,

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WP No. 18518 of 2018

the past service record. The past service record is the

basis for considering whether there are extenuating or

attenuating circumstances warranting lesser or harsher

punishment. The power under Section 11A of the Act has

to be exercised judiciously and the Labour Court or the

Tribunal as the case may be, is expected to interfere with

the decision of the management only when the

punishment is wholly disproportionate to the degree of the

guilt of workman and in the absence of any such factor,

Labour Court cannot by way of sympathy alone exercise

the power to reduce the punishment. The Labour Court,

while setting aside the order of dismissal and reducing the

punishment, ought to have taken into consideration the

said aspects. Thus, this Court is of the considered view

that the punishment of dismissal being set-aside, holding

that the workman is entitled to all the consequential

benefits and 15% of back wages is not sustainable and the

order of the Tribunal needs to be modified and point

framed for consideration is answered accordingly.

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WP No. 18518 of 2018

15. For the foregoing reasons, this Court pass the

following:

ORDER

(i) The petition is allowed in part.

(ii) The consequential benefits and entitlement of 15%

back wages is hereby set-aside.

(iii) Withholding of five annual increments with

cumulative effect is hereby confirmed.

(iv) The order of reinstatement to his original post with

continuity of service is hereby confirmed with a

warning to the workman not to indulge in activities of

misconduct.

Sd/-

JUDGE

S*