The Management Of vs G.R.Kurade
2023 Latest Caselaw 2591 Kant

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                                                            WP No. 78393 of 2013




                                   IN THE HIGH COURT OF KARNATAKA,
                                           DHARWAD BENCH

                                 DATED THIS THE 25TH DAY OF MAY, 2023

                                                BEFORE

                             THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY

                               WRIT PETITION NO. 78393 OF 2013 (L-KSRTC)

                        BETWEEN:

                             THE DIVISIONAL CONTROLLER,
                             N.W.K.R.T.C.,
                             BELGAUM DIVISION,
                             BELGAUM.
                                                                   ... PETITIONER
                        (BY SRI. VEENA HEGDE, ADVOCATE)

                        AND:

                        1.   G.R. KURADE,
                             AGE: MAJOR, OCC: DRIVER,
                             R/O. H.NO. 151,
                             NEAR PRIMARY SCHOOL,
        Digitally            SUBHASAGLLI, 1ST CROSS,
        signed by
        RAKESH S             GANDHI NAGAR, BELGAUM.
        HARIHAR
RAKESH Location:                                                  ... RESPONDENT
        High Court
S       of Karnataka,   (BY SRI. SOURABH HEGDE, ADVOCATE)
HARIHAR Dharwad
        Date:
        2023.05.31
        12:08:37             THIS WRIT PETITION IS FILED UNDER ARTICLES 226
        +0530
                        AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
                        ISSUE A WRIT OF CERTOTARI QUASHING THE AWARD DATED
                        28/01/2010 PASSED BY THE PRESIDING OFFICER, INDUSTRIAL
                        TRIBUNAL, HUBLI IN ID.NO.39/2005, COPY OF WHICH IS
                        PRODUCED AS ANNEXURE-A.

                               THIS PETITION, COMING ON FOR PRELIMINARY HEARING
                        IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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                                         WP No. 78393 of 2013




                            ORDER

1. The instant writ petition is filed under Articles

226 and 227 of the Constitution of India with a prayer to

quash the award dated 28.01.2010 passed by the

Presiding Officer, Industrial Tribunal, Hubballi in I.D.

No.39/2005 vide Annexure - A.

2. Heard the learned counsel for the petitioner and

the learned counsel for the respondent.

3. Facts leading to filing of this writ petition as

revealed from the records narrated briefly are, the

respondent is working as a driver in the petitioner-

Corporation. On 11.11.1996, at about 08:20 p.m., the

respondent was counting his money near the Accounts

Section of the petitioner-Corporation. This was objected to

by the Divisional Works Superintendent. The respondent

therefore got agitated and abused the Divisional Works

Superintendent in filthy language. The Corporation

therefore issued article of charges against him and

proceeded to hold an enquiry. Based on the said article of

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charges, the Enquiry Officer submitted a report holding the

petitioner guilty of the charges alleged against him and

based on the same, the Disciplinary Authority had passed

an order dated 17.10.2003 reducing the basic pay of the

respondent by two increments with cumulative effect. The

said order was questioned by the respondent before the

Industrial Tribunal, Hubballi in proceedings bearing I.D.

No.39/2005 and the Tribunal by award dated 28.01.2010

partly set aside the order of punishment and modified the

punishment by reducing the basic pay of the respondent

into one incremental stage in the time scale of wages with

cumulative effect from the date of order of punishment.

Being aggrieved by the said award, the petitioner-

Corporation is before this Court.

4. Learned counsel for the petitioner submits that

since the Tribunal has held that the enquiry held against

the workman was fair and proper, the Tribunal had

exceeded its jurisdiction while exercising its power under

Section 11A of the Industrial Disputes Act by interfering

WP No. 78393 of 2013

with the punishment imposed on the respondent. In

respect of her contention she has placed reliance on the

judgment of the Hon'ble Supreme Court in the case of

South Indian Cashew Factories Workers' Union vs.

Kerala State Cashew Development Corporation

Limited and others reported in (2006) 5 SCC 201 and

in the case of Bangalore Metropolitan Transport

Corporation, Rep. by its Chief Law Officer vs. BMTC

and State Transport Noukarara Sangha reported in

ILR 2011 KAR 2037.

5. Per contra, learned counsel for the respondents

submits that though the Tribunal has held that the enquiry

was held by the petitioner-Corporation in a fair and proper

manner, by exercising its inherent powers, the Tribunal

has modified the punishment on the ground that the

punishment imposed by the Disciplinary Authority was

disproportionate to the proved charges. He submits that

the contentions urged on behalf of the petitioner has been

already considered by the Coordinate Bench of this Court

WP No. 78393 of 2013

in WP No.77605/2013 which was disposed of on

23.10.2021 and therefore the writ petition is liable to be

dismissed.

6. I have carefully considered the arguments

addressed on both sides and also perused the materials on

record.

7. The Tribunal had framed the following two

issues in I.D.No.39/2009:

"1. Whether the departmental enquiry held against the petitioner claimant is fair and proper?

2. Whether the respondent management is justified in passing the punishment order against the first party claimant dated 17.10.2003?"

8. The issue No.1 was answered in the affirmative

vide order dated 04.04.2009 and the same has attained

finality. Thereafter the Tribunal has passed an award on

28.01.2010 wherein it has held that the evidence before

the Tribunal including the contents of the domestic enquiry

report clearly goes to show that the alleged misconduct is

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proved against the workman by the management and

accordingly the Tribunal has held that the Management

has proved the alleged misconduct against the workman.

However, on the ground that the punishment imposed

against the respondent is disproportionate to proved

misconduct, the Tribunal has proceeded to modify the

same. The question that arises for consideration in this

writ petition is:

"Whether the Tribunal was justified in modifying the punishment imposed by the Management on the workman in exercise of its inherent power on the ground that the punishment is disproportionate to proved misconduct?"

9. The Hon'ble Supreme Court in the case of

South Indian Cashew Factories Worker's Union Vs.

Kerala State Cashew Development Corporation Ltd.

and Others reported in (2006) 5 SCC 201 while

considering the scope of power to be exercised by the

Labour Court under Section 11-A of the Industrial Disputes

Act, 1947 in paragraph 16 has held as follows:

WP No. 78393 of 2013

"16. The Labour Court had earlier held that the enquiry was properly held and there was no violation of the principles of natural justice and that the findings were not perverse. The vitiating facts found by the Labour Court against the enquiry are erroneous and are liable to be set aside. If the enquiry is fair and proper, in the absence of any allegations of victimisation or unfair labour practice, the Labour Court has no power to interfere with the punishment imposed. Section 11-A of the Act gives ample power to the Labour Court to reappraise the evidence adduced in the enquiry and also sit in appeal over the decision of the employer in imposing punishment. Section 11-A of the Industrial Disputes Act is only applicable in the case of dismissal or discharge of a workman as clearly mentioned in the section itself. Before the introduction of Section 11-A in Indian Iron and Steel Co. Ltd. v. Workmen [1958 SCR 667 : AIR 1958 SC 130] this Court held that the Tribunal does not act as a court of appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc. on the part of the management. There is no allegation of unfair labour practice, victimisation, etc. in this case. The powers of the Labour Court in the absence of Section 11-A are illustrated by this

WP No. 78393 of 2013

Court in Workmen v. Firestone Tyre and Rubber Co. of India (P) Ltd. [(1973) 1 SCC 813 : 1973 SCC (L&S) 341] When enquiry was conducted fairly and properly, in the absence of any of the allegations of victimisation or mala fides or unfair labour practice, the Labour Court has no power to interfere with the punishment imposed by the management. Since Section 11-A is not applicable, the Labour Court has no power to reappraise the evidence to find out whether the findings of the enquiry officer are correct or not or whether the punishment imposed is adequate or not. Of course, the Labour Court can interfere with the findings if the findings are perverse. But, here there is a clear finding that the findings are not perverse and principles of natural justice were complied with while conducting enquiry".

10. In the case of Bangalore Metropolitan

Transport Corporation, Rep.by its Chief Law Officer

Vs.BMTC and State Transport Noukarara Sangha

reported in ILR 2011 Kar 2037, the Coordinate Bench of

this Court while considering similar question as raised in

the present writ petition in paragraph 11 has held as

follows:

WP No. 78393 of 2013

"11. In the instant case, the occurrence of the accident on account of the contributory negligence of the respondent - workman having been well founded and held as established, the punishment imposed being only to withhold two annual increments with cumulative effect, the Industrial Tribunal has no jurisdiction to exercise power under Section 11-A of the Act and substitute the punishment. The Industrial Tribunal has committed illegality by interfering with the punishment imposed by the Management and in reducing the punishment".

11. In the case of The Management of NWKRTC

Vs.Sri.S.I.Ghorpade in W.P.No.77605/2013 disposed

of on 23.10.2021, the Coordinate Bench of this Court

after referring the judgment of the Hon'ble Supreme Court

in the case of Coimbatore District Central Cooperation

Bank Vs. Coimbatore District Central Cooperative

Bank Employees Assn. and Another reported in

(2007)4 SCC 669 at paragraph 14 has held as follows:

"14. It therefore follows that though the power to modify and reduce the punishments relating to dismissal or dismissal has been expressly

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WP No. 78393 of 2013

conferred under S.11 A of the Act, the internet power to apply the doctrine of proportionality by the Labour Court/Industrial Tribunal or by this Court in exercise of its writ jurisdiction is not denuded and can be applied in appropriate cases depending on facts and circumstances of the case".

12. In the case of Coimbatore District Central

Cooperation Bank Vs. Coimbatore District Central

Cooperative Bank Employees Assn. and Another

reported in (2007)4 SCC 669, while considering the

doctrine of proportionality the Hon'ble Supreme Court has

held that in our legal system the said doctrine is well

settled and in case if it is found that punishment imposed

on an employee by management is grossly excessive,

disproportionately high or unduly harsh, it cannot claim

immunity from judicial scrutiny and it is always open to a

Court to interfere with such penalty in appropriate cases.

13. Therefore, having regard to the facts and

circumstances of each case, doctrine of proportionality

would be invoked if only the Courts find that the

punishment imposed by the Management is unduly harsh,

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WP No. 78393 of 2013

excessive or shocks the conscience and defies any logic.

There should be an element of irrationality or perversity in

the punishment imposed.

14. In the case on hand, charges leveled against

the respondent-workman has been proved by the

petitioner-Corporation in accordance with law and the

Tribunal has held that the enquiry held against the

workman was fair and proper. The punishment imposed by

the Management against the workman was by reducing

the basic pay of the respondent by two increments with

cumulative effect in the time scale of wages and the said

punishment cannot be termed to be disproportionate to

proven misconduct of the workman. The Tribunal except

saying that the punishment is disproportionate to proven

misconduct has not assigned any other good reason to

interfere with the punishment imposed by the

Management against the respondent-workman. Under

these circumstances, in my considered view, the Tribunal

was not justified in exercising its discretionary power in

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interfering with the punishment that was imposed by the

Management against the respondent-workman for proven

misconduct. Therefore the question for consideration is

answered in the negative.

15. Under these circumstances, the award passed

by the Industrial Tribunal which is impugned in this writ

petition cannot be sustained. Accordingly the following:

ORDER

The writ petition is allowed.

The impugned award dated 28.01.2010 passed by

the Presiding Officer, Industrial Tribunal, Hubballi in I.D.

No.39/2005 vide Annexure - A is quashed.

Sd/-

JUDGE

Rsh,Kgk/Ct:Bck