Karnataka High Court
Sri. Anandreddi S/O. Timmareddi ... vs The Management Of Nwkrtc on 27 June, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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WP No. 109371 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO.109371 OF 2017(L-KSRTC)
BETWEEN:
SRI ANANDREDDI
S/O. TIMMAREDDI KANAKAREDDI,
AGE ABOUT 42 YEARS, OCC:NIL
R/AT: ALAGAVADI,
TQ: NAVALAGUND,
DIST: DHARWAD.
...PETITIONER
(BY SRI RAVI HEGDE, ADVOCATE)
AND:
THE MANAGEMENT OF NWKRTC,
REPRESENTED BY ITS
DIVISIONAL CONTROLLER,
HUBBALLI DIVISIONAL, HUBBALLI,
DIST: DHARWAD.
...RESPONDENT
Digitally
(BY SRI S. L. MATTI, ADVOCATE)
signed by V N
BADIGER
Location: THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
High Court of
Karnataka
CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI
OR ANY OTHER WRIT QUASHING THE AWARD PASSED IN K.I.D
NO.18/2015 DATED: 21.01.2017 ON THE FILE OF PRESIDING
OFFICER, LABOUR COURT, HUBBALLI VIDE ANNEXURE-G AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 109371 of 2017
ORDER
1. This petition is filed by the petitioner-workman
aggrieved by the order dated 21.01.2017 passed in KID
No.18/2015 on the file of the Presiding Officer, Labour
Court, Hubballi, by which the claim petition filed by the
petitioner herein has been dismissed.
2. Brief facts of the case are that; the petitioner
was appointed as driver cum conductor by the respondent
Corporation on 03.04.2009. He was put on training for a
period of 2 years. Within few days, he was asked to
discharge duties of a regular employee. That from
26.02.2014, he could not attend the duty for about 4
months on account of his ill-health as he was suffering
from fever and amoebic dysentery. That he had informed
the same to the Management orally. A call notice was
issued and was published in the newspaper calling upon
the petitioner to report to the duty. The petitioner by reply
dated 23.06.2014, had given explanation and the reasons
for his absence from the duty. That on 30.06.2014, he
reported to the duty. However, on 10.12.2014, the
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respondent Corporation without conducting any
departmental enquiry removed the petitioner from the list
of employees. Aggrieved by the same, he filed a claim
petition before the Labour Court.
3. Evidence was led on behalf of the claimant as
well as the respondent Management. Claimant examined
himself as WW1 and a witness on behalf of Management
was examined as MW1. Six documents are marked on
behalf of the claimant and twenty documents are marked
on behalf of the Management. That the Labour Court by
order dated 21.01.2017 dismissed the claim petition.
Aggrieved by the same, the petitioner is before this Court.
4. Learned counsel appearing for the claimant
reiterating the grounds urged in the memorandum of
petition submitted that the impugned order passed by the
Labour Court is perverse and illegal. That the Labour Court
has not appreciated the pleading and the material
evidence adduced by the claimant. That the Labour Court
has given contradictory reasoning for rejection of the claim
petition, while on the one hand, the Labour Court has
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opined that the petitioner is not a regular employee, on
the other hand has confirmed the contention of the
respondent Management that a domestic enquiry was
indeed conducted. The Labour Court failed to appreciate
that merely because the petitioner was unauthorisedly
absent the imposition of punishment in the nature of
removal of his name from the list was grossly
disproportionate to the allegations made, that too, without
conducting any departmental enquiry. It is the further
contention of the counsel for the petitioner that the show
cause notice was issued by the Divisional Controller who
himself conducted the alleged enquiry and has himself
passed the order of termination. Thus, it is contended that
the entire process adopted by the respondent violates the
principles of natural justice. Hence, the writ petition.
5. Learned counsel for the petitioner relied upon
the judgment of the Coordinate Bench of this Court dated
25.04.2024 passed in the case of Basanagouda Vs.
Divisional Controller, NWKRTC in
W.P.No.100878/2017 and connected matters in
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support of his submission that the petitioner is not the
trainee and has to be considered as a workman.
6. Per contra, learned counsel appearing for the
respondent Corporation justifying the order of dismissal
and the rejection of the claim petition passed by the
Labour Court, submits that the petitioner was a trainee
and was not a regular employee, as such he was not
entitled to be heard or subjected to any enquiry. He
further submits though the petitioner was not a regular
employee, in the interest of natural justice, the respondent
Corporation had indeed conducted enquiry and he was
afforded sufficient opportunity. However, the petitioner
workman did not submit the evidence /material justifying
his absence from the duty. That considering his previous
record of remaining unauthorisedly absence on 7
occasions, the respondent Corporation has found it
appropriate to remove his name from the list of employees
of the Corporation. He submits that the respondent
Corporation had even issued paper publication calling upon
the petitioner and others, who also remained
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unauthorisedly absent, to report to duty. The deliberate
absence without permission of the respondent cannot be
viewed lightly particularly when he has had 7 earlier
similar cases of unauthorized absence. Therefore, the
order of removal of his name from the list was passed by
the respondent Corporation and the same has been validly
and justifiably confirmed by the Labour Court.
7. The respondent counsel relied upon the
judgment of the Divisional Bench of this Court in
W.A.No.100383/2014 and the order dated 26.09.2005
passed in W.A.No.2596/2005 to support his submission
that the petitioner workman is a trainee and not a
workman.
8. Heard and perused the records.
9. Undisputed facts of the matter are that, the
petitioner was appointed as a driver cum conductor by the
respondent on 03.04.2009. That he remained absent from
the duty from 26.02.2014 to 26.06.2014 for about 4
months.
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10. In response to the paper publication issued by
the respondent Corporation on 27.05.2014, the petitioner
herein submitted a reply on 23.06.2014 as per Annexure-
R5. In the said reply, the petitioner has contended that he
was admitted to District Hospital as he was suffering from
severe fever. That he had submitted the application along
with the medical certificate seeking permission which was
rejected on the premise that he was still a trainee and not
entitled for any leave. That he was suffering from anemia
and dysentery as well as jaundice and was taking
treatment at Shakuntala Hospital and was still under the
treatment. That he had submitted necessary medical
records in that regard and he had requested extension of
time till 30.06.2014 and to consider his absence from the
duty from 26.02.2014 to 30.06.2014 as medical leave. It
appears that a personal hearing was afforded by the
enquiry officer in which the petitioner himself appeared on
23.06.2014 personally as per Annexure-A. Perusal of the
said document reveal that the statement of the petitioner
has been recorded which is verbatim repetition of the
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communication dated 23.06.2014 produced by the
respondent himself as per Annexure-R5. Thereafter, order
dated 10.12.2014 has been passed. Perusal of the said
order reveal that the Divisional Controller of the
respondent, has referred to previous 7 cases of the
petitioner remaining absent and he having been
exonerated on payment of Rs.500/- as fine on 6 occasions
and Rs.2900/- as fine on one of the occasions. Taking into
consideration of the said previous records and declining to
accept the documents furnished by the petitioner with
regard to his health conditions, the order dated
10.12.2014 has been passed by removing his name from
the list of employees. Along with the said order, a cheque
of Rs.7000/- is also enclosed towards one month salary of
the petitioner. Aggrieved by the same, petitioner filed a
claim petition.
11. The Labour Court as seen in paragraph No.13 of
the impugned order, has opined that the petitioner was
not a permanent employee of the respondent Corporation
and he was a trainee driver cum conductor, as such, he
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could not claim for conducting of a domestic enquiry. The
Labour Court has opined that since he was still a trainee
and that he was not entitled for any leave as that of the
regular employee, he could not have remained absent
from the duties. The Labour Court has also taken into
consideration the previous cases of unauthorized absence
in which the petitioner was fined. The Labour Court has
declined to take into consideration the material evidence
produced by the petitioner workman before the
respondent Management. Thus, the Labour Court has
come to the conclusion that the petitioner was a habitual
absentee and the respondent Management was justified in
removing his name from the selection list of the trainee
driver cum conductor and that the said punishment
imposed was not disproportionate to the proved
misconduct.
12. It is necessary to note that at the last
paragraph of the order dated 10.12.2014 produced at
Annexure-F, while imposing punishment of removal of
name of the petitioner from the list of employees, the
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respondent-Management has referred to pendency of
proceedings in ID No.148/2005, by KSRTC Staff and
Workers Federation and the respondent-Management
taking note of certain orders passed in respect of same
employees for non-compliance of Section 33 (2)(b) of the
ID Act, as a precaution-enclosed a cheque for Rs.7,000/-
along with said order being salary for one month and has
further stated regarding on application having been filed
before the Court seeking approval of order of removal.
This Court of action by the respondent-Management would
indicate that even the respondent-Management has
treated the petitioner claimant as its employee/workman
requiring treatment in accordance with provisions of the ID
Act.
13. The Division Bench of this Court in its orders
dated 26.09.2005 and 15.10.2014 passed in
W.A.No.2596/2005 and in W.A.No.100383/2014
respectively, has held that a trainee conductor and trainee
driver cannot be equated to a conductor regularly
appointed after completion of training course. These two
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orders of the Division Bench of this Court are heavily relied
upon by the learned counsel for the respondent-
corporation. However, in the judgment of the Co-Ordinate
Bench of this Court passed in W.P.No.100878/17 and
connected matters dated 25.04.2024 relied upon by the
learned counsel for the petitioner, the Co-Ordinate Bench
of this Court, while considering the question is as to;
"whether a person who is selected as a
'driver' or as a 'driver-cum-conductor' by the
respondent-North West Karnataka Road Transport
Corporation and is asked to undergo training
before being appointed on probation, is a
"workman" as defined under the Industrial
Disputes Act, 1947 (for short, hereinafter referred
to as 'ID Act, 1947') and can invoke the provisions
of the ID Act, 1947 for adjudication of his rights?,
The Co-ordinate Bench of this Court has concluded that a
person who is selected as driver and as a driver-cum-
conductor to undergo training would necessarily be an
employee of the corporation and would also be a
"workman" as defined under Section 2(s) of the ID Act,
1947 which would entitle him to invoke the provisions of
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the ID Act, 1947 for resolution of his dispute with his
employer i.e., the KSRTC. The Co-Ordinate Bench of this
Court has taken into consideration the order passed by the
Division Bench of this Court in W.A.No.100383/2024 and
similar other orders, and has found that in the said orders
there was no issue involved as to whether a trainee driver
or conductor were the workman as defined under Section
2(s) of the ID Act, 1947 or the employee under C&R
Regulations. The Co-Ordinate Bench of this Court has also
found the Division Bench of this Court in those judgments
was considering the definition of "corporation servant"
under the provision of the KSRTC Servants (Conduct and
Discipline) Regulations, 1971 (for short, hereinafter
referred to as 'C & D Regulations, 1971').
14. This Court is of the view that the law
enunciated by the Co-Ordinate Bench of this Court on the
issue of driver and driver-cum-conductor who is
undergoing trainee before appointed on probation as a
workman is applicable to the facts of this case as well.
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Having held as above, the order passed by the Labour
Court needs to be appreciated.
15. As already noted on the one hand that the
Labour Court has held that the petitioner is not a
permanent employee of the respondent-corporation, on
the other hand has adjudicated the validity or otherwise so
called enquiry conducted by the respondent-corporation.
Even while doing so the Labour Court has not appreciated
the evidence led on behalf of the petitioner-workman.
16. Annexure-A is the purported enquiry conducted
by the Divisional Controller. Perusal of which would only
indicate that except extracting the contents of reply given
by the workman on 23.06.2014 in response to the paper
publication, nothing has been referred. In fact the said
reply indicate petitioner-workman had indeed submitted
the medical records regarding his illness and he having
been admitted in the hospital. There is no reference to
such documents.
17. Interestingly, while leading evidence before the
Labour Court the management witness himself has
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produced the said documents. Even then the Labour Court
has not appreciated the said documents. Thus neither the
so called Enquiry Officer nor the Labour Court has looked
into the medical records submitted by the petitioner-
workman. When once the Labour Court decided to look
into the enquiry report, notwithstanding its opinion of
petitioner-workman not being a permanent employee, it
was incumbent on the part of the Labour Court to have
adverted the said material evidence. Not doing so in
considered opinion of this Court would amounts to
perversity and the order passed thereof cannot be
sustained.
18. The justification given by the Labour Court with
regard to the punishment of dismissal is the previous case
history of the petitioner. The said previous case history as
seen in the impugned order would reveal that by imposing
fine the petitioner was not only permitted to continue his
employment but was also extended his probationary
period. Further petitioner has not been afforded with an
opportunity to advert to the ground of his previous record
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during the enquiry. It is only in the order dated
10.12.20214 at Annexure-F the respondent-Management
has relied upon the previous case history.
19. It is relevant at this juncture to refer the
judgment of the Hon'ble Apex Court in the case of
Nicholas Piramal India Limited Vs.Harisingh reported
in (2015)8 SCC 272.
20. In view of the aforesaid analysis and the
reasons, this Court is of the considered view that the
Labour Court ought to have appreciated the proportionality
of the misconduct and the punishment imposed. As seen
in the records when the respondent-corporation itself has
imposed fine on previous occasion and permitted the
petitioner-workman to continue his employment, the
Labour Court ought to have taken into account the said
aspect of the matter as well. Considering the passage of
time, this Court based on the undisputed material
produced on record is of the considered view that the relief
sought in the petition can be moulded.
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21. The Regulation 18(iii) of the C&D Regulations,
1971 under the heading Disciplinary Proceedings provides
for nature of penalties be imposed. Under the heading
Minor Penalties, fine in the cases of Class-III and IV
servants is provided. One of the modes of punishment is
"recovery from his wages or salary of the whole or part of
any pecuniary loss caused by him to the corporation by
negligence or breach of orders or unauthorized absence
from duty".
22. Viewed in the light of the aforesaid provisions
even if the absence of the petitioner in the instant case
from 26.02.2014 to 30.06.2014 is to be considered as
unauthorized, in view of he producing the medical records,
he could have been imposed with the punishment of
imposing fine and ordered to be recover the same from his
wages. This not only as provided under the regulation
referred to above, but would also be as done by the
respondent-corporation on previous occasions.
23. At any rate dismissal from the service/removal
of the name of the petitioner from the list of employees
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under the given facts and circumstances of the case in the
considered view of this Court is grossly disproportionate.
24. As such the following:
ORDER
(a) Petition is partly allowed.
(b) Order dated 10.12.2014 passed by the
respondent-corporation and the order dated
21.01.2017 passed by the Labour Court, are set
aside.
(c) Respondent-corporation is directed to reinstate
the petitioner-workman without back wages by
imposing the fine equivalent to wages for
number of days which he remained absent and
the said amount be recovered from the salaries
to be paid to the petitioner.
SD/-
JUDGE
KGK,SMM
