Karnataka High Court
Sri. Hasansab S/O Basusaheb Daded vs The Management Of Nwkrtc on 4 July, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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WP No. 101948 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO.101948 OF 2017(L-KSRTC)
BETWEEN:
SRI HASANSAB S/O. BASUSAHEB DADED,
AGED: 35 YEARS, OCC: NIL,
AT POST: LINGADAHALLI,
TQ: INDI, DIST: VIJAYAPUR.
...PETITIONER
(BY SRI RAVI HEGDE, ADVOCATE)
AND:
THE MANAGEMENT OF NWKRTC,
HAVERI DIVISION, REPRESENTED BY
DIVISIONAL CONTROLLER,
HAVERI DIVISION, HAVERI,
TQ AND DIST: HAVERI.
...RESPONDENT
Digitally
signed by V N (BY SRI S.L.MATTI, ADVOCATE)
BADIGER
Location:
High Court of
Karnataka THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR
DIRECTION OR ORDER, QUASHING THE AWARD PASSED BY
THE LABOUR COURT, HUBBALI, DATED:15.04.2016 IN
K.I.D.N0.03/2014 WHICH IS PRODUCED AS ANNEXURE-E
AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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WP No. 101948 of 2017
ORDER
1. In this petition, the petitioner-workman is
challenging the validity or otherwise of the order dated
15.04.2016 passed by the Labour Court, Hubballi in KID
No.3/2014 by which the Labour Court dismissed the
petition filed by the petitioner under Section 10(4-A) of
the Industrial Disputes Act, 1947.
2. Brief facts of the case are that, the petitioner-
workman was appointed as a job trainee cum conductor in
the respondent-Corporation on 05.01.2010 and he
continued to work satisfactorily until he was removed by
the order dated 31.12.2013. That a show cause notice was
issued by the respondent-Corporation on 31.01.2012
alleging that the petitioner-workman while on duty on
10.06.2012 in the vehicle which was belonging to the
respondent-Corporation, plying on the road of Bellary to
Ranebennur, the same was intercepted by the inspectors
at Ranebennur and found petitioner-workman possessing
excess amount of Rs.315/-. Thereupon, offence memo was
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issued to the petitioner-workman alleging that he had
attempted to pilfer the amount belonging to the
respondent-Corporation and registered a case of excess
cash against the petitioner-workman.
3. On receipt of article of charge, petitioner-
workman submitted a reply denying allegations. The
petitioner-workman contended that he had issued tickets
to all the passengers, however, due to non-availability of
small denomination notes, he had written the same on the
backside of the ticket of the passenger, who had forgotten
to take the balance amount while getting down from the
bus. As such, petitioner-workman was in possession of the
said excess amount and that he had not committed any
misconduct as alleged in the claim statement. Enquiry was
instituted and he participated in the same. A report was
submitted by the Enquiry Officer stating that the charge
against the petitioner-workman was proved. Thereupon
the Disciplinary Authority passed an order dated
31.12.2013 in which referring to the earlier cases of
misconduct, the Disciplinary Authority decided to remove
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the petitioner- workman from the services. Aggrieved by
the same, petitioner-workman filed the above claim
petition before the Labour Court.
4. The respondent-Corporation appeared and filed
counter statement denying the contents of the claim
petition and contended that a detailed report with relevant
documents was submitted to the Disciplinary Authority
which on conducting an enquiry in accordance with law,
providing an opportunity to the petitioner- workman, had
come to the conclusion that the workman had committed
misconduct and based on the finding of the Enquiry
Officer, the respondent-Corporation removed his name
from the selection list of job trainee cum conductor, which
is proper and justified. Hence, sought for dismissal of the
claim petition.
5. The Labour Court framed the following issues
for its consideration:
"1.Whether the domestic enquiry held against the
claimant is fair and proper?
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2. Whether the respondent-Corporation is justified
in removing the claimant from service w.e.f.
31.12.2013?
3. Whether claimant is entitled for the relief
claimed?
4. What order or award?"
6. Issue No.1 was held in the affirmative by
separate order dated 07.01.2015. However, while
answering issued No.2, the Labour Court recorded the
evidence of the petitioner-workman who examined himself
as WW1. No evidence was recorded on behalf of the
Corporation, except producing the document at Exs.M1 to
M17. The Labour Court on appreciation of evidence, has
come to the conclusion that the articles of charges made
against the petitioner-workman were proved and since the
petitioner-workman is not a permanent employee, and
considering his past records, punishment imposed by the
Corporation was just and proper and declined exercising
his discretion under Section 11(a) of the Industrial
Disputes Act. Accordingly, dismissed the petition.
Aggrieved by the same, the petitioner is before this Court.
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7. Learned counsel for the petitioner reiterating
the grounds urged in the memorandum of petition taking
the attention of this Court through the records submitted
that the manner in which the enquiry is conducted was not
meeting basic requirement of principles of natural justice.
He further submits that the very framing of the charge
against the petitioner, would indicate that the respondent-
Corporation was not clear as to the offence that was
committed by the petitioner. He also submits that even
according to the case of the petitioner, there was no
pilferage or misappropriation of funds belonging to the
Corporation. That the entire process of enquiry
proceedings were commenced and concluded within few
hours of 05.10.2012 and the Disciplinary Authority while
imposing punishment as per the order dated 31.12.2013,
relied upon extraneous consideration of the previous
alleged misconduct of the petitioner and proceeded to
remove the petitioner from the services. As regards the
finding of the Labour Court of petitioner-workman being a
trainee not being a permanent employee, it is the
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submission of the counsel for the petitioner that though
the petitioner-workman was appointed as a trainee driver
cum conductor, as per the order of appointment a period
of training was only for a period of 2 years and the said
provisions further provide that any further extension needs
to be in writing and since no express order is passed, it is
deemed that the petitioner-workman was put on
probationary. He also draws attention of this Court to the
last paragraph of the order dated 31.12.2013, in which it
is stated that the respondent-Corporation had filed an
application for transfer under Section 33(2)(b) of the
Industrial Disputes Act, as there was general reference
pending consideration under I.D.No.148/2005 besides a
cheque for Rs.5368/- dated 31.12.2013 was also enclosed
with the order of imposing punishment.
8. Referring to the same, counsel for the petitioner
vehemently submitted that the Labour Court without
referring to these material aspects of the matter, has
erroneously passed the order, which has resulted in
perversity warranting interference in the matter at the
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hands of this Court. He also relies upon the judgment of
the Apex Court in the case of Nicholas Piramal India
Limited Vs.Harisingh reported in (2015)8 SCC 272 in
support of his submission that the past record of the
employee has to be brought to the notice of the employee
during the enquiry and cannot be used as a tool to impose
disproportionate punishment without affording opportunity
to the workman to response to the same. Hence, seeks for
allowing of the petition.
9. In response, learned counsel for the
respondent-Corporation justifying the enquiry, order of
dismissal and the order passed by the Labour Court
submitted that the petitioner was merely a trainee and he
was not even entitled for enquiry, however, he was given
benefit of enquiry by the Corporation and the same cannot
be construed to mean the petitioner to be permanent
employee. He further submits that the very facts revealed
during the enquiry and admitted by the petitioner-
workman of he having Rs.315/- excess in his possession,
would indicate that he had indeed misappropriated the
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funds belonging to the Corporation and it was incumbent
upon the petitioner-workman who have discharged his
burden of proving the source of the said amount. It is his
further submission that when the said petitioner-workman
could produce copy of the ticket over which he had written
amount of Rs.481/-, nothing prevented him from
examining the passenger whom he had issued the ticket.
He submits that being a trainee, he had involved in 22
cases which he had admitted during the cross-
examination, as such, Disciplinary Authority relying upon
the same while imposing the punishment cannot be found
fault with. He submits that enquiry was commenced on
03.09.2012 and concluded on 05.10.2012. Thus, he
submits that proper and sufficient opportunity is granted
and the orders do not suffer from any perversity. Hence,
seeks for dismissal of the petition.
10. He also relied upon the judgment of the
Division Bench of this Court in the case of Writ Appeal
No.100383/2014 passed in the case of The
Management of NEKRTC Vs. Raju S. Jaydi, wherein it
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is held that a trainee conductor cannot be equated to a
conductor regularly appointed after completion of trainee
course and another judgment in the case of North West
Karnataka Road Transport Corporation Vs.
Mahabaleshwar in Writ Appeal No.2596/2005 on the
same point. Thus, he submits that there is no illegality or
perversity in the order passed by the Tribunal warranting
interference.
11. Heard. Perused the records.
12. There is no dispute of the fact that the
petitioner was indeed appointed as a trainee cum
conductor on 05.01.2010 and when intercepted on
10.06.2012, the petitioner was found in possession of
excess cash of Rs.315/-.
13. Relevant at this juncture to refer to the show
cause notice dated 31.07.2012 produced at Ex.M6,
wherein though the said document is titled,
"PÁgÀt PÉý ºÉÆgÀr¹zÀ £ÉÆÃn¸À", the same contained the charge and
the explanation of the charge.
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14. Perusal of the said charge would reveal that on
10.06.2012 when the petitioner was discharging his duties
en-route Bellary to Ranebennur, the said vehicle was
intercepted by the officers of respondent-Corporation and
found that he was holding unauthorised sum of Rs.315/-,
as such, he had violated the Rules of the respondent-
Corporation. As rightly pointed out by the learned counsel
for the petitioner, the said show cause notice do not
whisper as to whether the said amount belonged to the
Corporation or whether the petitioner had caused any
financial loss or made any gain for himself? It only states
that he was in possession of excess cash of Rs.315/-. Even
during the enquiry that was conducted on 05.10.2012, to
a specific question asked on behalf of the petitioner-
workman to the Reporting Officer as to whether at the
time of interception all the passengers were issued with
the travel tickets? he has answered the same in the
affirmative. In other words, it is not the case of the
respondent-Corporation that the petitioner was guilty of
not issuing the tickets and not collecting the charges which
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is generally referred to as 'NINC' and not even the case of
not issuing the ticket after collection which is generally
referred to as 'NIAC'. Therefore, what requires to be seen
is that, in the absence of foundational facts of misuse of
his position /negligence, dereliction of duty etc., if a
workman holds excess cash, in what category of offences
would he fall in? It may only require an explanation to be
given by the petitioner with regard to circumstances he
being in possession of excess cash. It cannot be stretched
to impute anything else including attributing his intention
to cause loss to the Corporation or make undue gain
thereof.
15. As already noted above, it is not the case of
Corporation of the workman misappropriating it. The
petitioner has during the enquiry and in the reply to the
show cause notice has indeed given an explanation of he
writing on the back of the ticket issued to a traveler
balance amount available to him, which the said traveler
had not collected before getting down from the bus and he
has also produced the copy of the said ticket. It is not the
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case of the Corporation that the said ticket was neither
issued nor that the said ticket was created for the purpose
of the said case. Merely because the petitioner did not
examine the said traveler, production of the said ticket in
the absence of any material to the contrary cannot be
ignored. It is only the plausible explanation which is
expected particularly in the absence of any allegation of
misappropriation. It is in this context, material evidence
has to be appreciated and viewed, which in the considered
view of this Court has missed the attention of the Labour
Court.
16. As regards, heavy reliance is placed on by the
Disciplinary Authority to the previous misconduct of the
petitioner enlisted in the order of removal which is also
taken note and relied upon by the Labour Court in
dismissing the claim petition, relevant to refer to
paragraph 30 of the judgment of the Apex Court in the
case of Nicholas Piramal India Limited (supra), which
reads as under:
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"30. Further, in State of Mysore v. K. Manche
Gowda, this Court has held thus: (AIR p. 510, para 8)
8. It is suggested that the past record of a
government servant, if it is intended to be relied upon for
imposing a punishment, should be made specific charge
in the first stage of the enquiry itself and if it is not so
done, it cannot be relied upon after the enquiry is closed
and the report is submitted to the authority entitled to
impose the punishment. An enquiry against a government
servant is one continuous process, though for
convenience it is done in two stages. The report
submitted by the enquiry officer is only recommendatory
in nature and the final authority which scrutinises it and
imposes punishment is the authority empowered to
impose the same. Whether a particular person has a
reasonable opportunity or not depends, to some extent,
upon the nature of the subject-matter of the enquiry. But
it is not necessary in this case to decide whether such
previous record can be made the subject-matter of charge
at the first stage of the enquiry. But, nothing in law
prevents the punishing authority from taking that fact into
consideration during the second stage of the enquiry, for
essentially it relates more to the domain of punishment
rather than to that of guilt. But what is essential is that
the government servant shall be given a reasonable
opportunity to know that fact and meet the same."
17. Though it is permissible for the Management to
rely upon the previous conduct/case history of the
employee while considering imposition of punishment, the
Law warrants that the employee be offered with an
opportunity to give explanation which is completely
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missing in the instant case. Besides perusal of the
previous record also indicate that out of 22 cases listed
there, only 1 case is with regard to NIAC, which is not
issuing ticket after collection for Rs.9/-. The rest of cases
are Not Issue Ticket Not Collected. The gravity of these
misconduct, also should be borne in mind.
18. Needless to state that the petitioner was a
trainee driver cum conductor and there is possibility of he
missing out issuing the ticket or collecting charges which is
the case at the hand as emanating from the list of
previous cases mentioned in the order of dismissal,
without appreciating the nature of the previous cases, if
one looks at 22 incidents, it may create an impression of
the employee being habitual offender. But the nature of
said offences offer no explanation of he committing
deliberate offence of unduly enrich himself. It is perhaps
for this reason, in all those cases, the respondent -
Management had let him of by imposing fine. As such, the
same would not lead any credence for imposing extremely
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disproportionate punishment / penalty of removal from
service. But the offence involved in the subject matter of
the case at hand, since the petitioner employee has given
plausible explanation of he possessing excess cash by
producing a ticket, which is not in dispute, as already
noted above, this Court is of the considered view that
imposition of punishment of removal of his name from the
selection list of trainee cum driver conductor is grossly
disproportionate, more so when he had put in just 2 years
of service. Therefore, this Court is of the considered view
that, the order passed by the Labour Court requires to be
modified. Accordingly, the following:
ORDER
i. The writ petition is allowed in part;
ii. The order passed by the respondent-
Management dated 31.12.2013 removing
him from service and so also the order of
the Labour Court confirming the said
order is set aside.
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iii. The punishment imposed is reduced to
imposition of fine equivalent to two
months of his last drawn salary.
iv. The respondent authority shall reinstate
the petitioner into service within a period
of two months from the date of receipt of
certified copy of this order and the
aforesaid amount of fine shall be adjusted
/ recovered from the salary to be paid to
the petitioner employee.
v. Learned counsel at this juncture, relies
upon the judgment of the Co-ordinate
Bench of this Court in Writ Appeal
No.100383/2014, wherein dealing with
the issue of status of a trainee after
completion of two years, the Co-ordinate
Bench of this Court has held that, they
are entitled to be put on probation
automatically. Thus, referring to the
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same, learned counsel submits that,
similar benefit be extended to the
petitioner also. The petitioner has
admittedly reported to the duty on
05.01.2010 and he was subjected to
enquiry on 05.10.2012 and the removal
order was passed on 31.12.2013.
Considering these aspects of the matter,
liberty is reserved to the petitioner to
make a representation for continuity of
service, if he is entitled to and the same
shall be considered by the respondent
authorities in accordance with the
relevant rules.
SD/-
JUDGE
KGK,VNP/CT-ASC
