Karnataka High Court

Sri. Sawale Mahadev vs The Divisional Controller on 31 May, 2024

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

             DATED THIS THE 31ST DAY OF MAY, 2024
                            BEFORE

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

           WRIT PETITION No.25113/2018 (L-KSRTC)

BETWEEN:

SRI SAWALE MAHADEV
S/O. SRI MALLIKARJUNA,
AGED ABOUT 39 YEARS,
R/AT SIDDARTHANAGAR,
BHALKI,
BIDAR DISTRICT - 585 328.
AT THE TIME OF ENQUIRY
WORKING AS DRIVER-CUM-CONDUCTOR,
DEPOT-5, NELAMANGALA DIVISION,
BENGAURU RURAL DISTRICT - 562 123.                  ... PETITIONER

(BY SRI SHIVSHANKAR, ADVOCATE)

AND:

THE DIVISIONAL CONTROLLER
KSRTC, CENTRAL DIVISION,
K.H. ROAD,
BENGALURU - 560 027.                           ... RESPONDENT

(BY SMT. H.R. RENUKA, ADVOCATE)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS;
QUASH THE IMPUGNED ENQUIRY REPORT SUBMITTED BY THE ENQUIRY
OFFICER DATED 24.11.2016 VIDE ANNEXURE-A AND THE ORDER
DATED 01.02.2017 PASSED BY THE RESPONDENT HEREIN DISMISSING
THE PETITIONER FROM SERVICE VIDE ANNEXURE-B; QUASH THE
IMPUGNED ORDER DATED 09.03.2018 PASSED BY THE DISTRICT
JUDGE, PRESIDING OFFICER, III ADDL. LABOUR COURT, BENGALURU
VIDE ID NO.07/2017 VIDE ANNEXURE-C AND ETC.

      THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON
10/04/2024 FOR ORDERS AND COMING FOR PRONOUNCEMENT OF
                                 -2-

ORDER THIS DAY (AT KALABURAGI BENCH THROUGH                    VIDEO
CONFERENCING), THE COURT PRONOUNCED THE FOLLOWING:

                            ORDER

Petitioner-workman was working as a driver-cum-

conductor in the respondent-corporation, for non-issuance of

tickets, when the workman was discharging his duties on

18.04.2016 charge memo was issued, enquiry was

conducted, the enquiry report was submitted, the

Disciplinary Authority on not being satisfied with the

explanation offered by the workman and being of the opinion

that the material on record established the charge of non-

issuance of ticket, finding that the history sheet of the

workman revealed that the workman had involved in 43

earlier cases and though minor punishments were imposed in

earlier cases, the workman failed to reform and repeatedly

tried to pilfer the State revenue and dismissed the workman

from the service by order dated 01.02.2017.

2. Petitioner-workman aggrieved by the order of

dismissal, filed a claim petition under Section 10 (4-A)

Industrial Disputes Act, 1947 (hereinafter referred to as 'the

ID Act' for short), contending that the order of dismissal by

the Corporation is not sustainable and while discharging his

work as a driver-cum-conductor on 18.04.2016 he had

issued tickets to all the passengers, accounted the same in

EBTM machine, when the checking squad checked the bus,

passengers refused to produce ticket and pay the penalty,

the checking squad forcibly obtained signature of the

workman on blank passenger's statement and obtained two

tickets of Rs.30- each and two tickets of 38 each from the

EBTM machine and issued a offence memo alleging that he

has failed to issue the said tickets despite collection of

requisite fare from them and that the enquiry conducted is

not fair and proper and the workman had no opportunity to

defend himself in the enquiry proceedings.

3. On notice, the respondent-Corporation resisted

the claim by filing a counter statement, inter alia, contending

that the checking squad found that there were 28 + 01+00

passengers and the workman failed to issue tickets to group

of two passengers despite collecting requisite fee from the

said passengers of Rs. 30/- each and also failed to issue

tickets to a group of two passengers who were traveling from

Yediyur to Kadabali despite collecting requisite fee of Rs.38/-

each.

4. The Labour Court on the point of the domestic

enquiry held that the domestic enquiry conducted is not fair

and proper. Thereafter, both the parties adduced evidence

on merits, after considering and appreciating the

documentary evidence, the Labour Court dismissed the claim

petition filed by the workman.

5. Heard Sri Shivashankar, learned counsel for the

petitioner-workman and Smt. H.R. Renuka, learned counsel

appearing for the respondent-corporation.

6. The Labour Court held that the charges are

proved and that the workman cannot be let go free as he is

unbecoming of the public servant, as such, held that the

order of dismissal passed by the corporation is just, proper

and legal. It is a well settled principle that, after the insertion

of Section 11A to the ID Act, if the enquiry is held to be not

fair and proper, the opportunity needs to be accorded to the

Corporation to justify that the action taken by the

Corporation is justified. On the evidence adduced by the

parties before the Labour Court, the Labour Court has power

to appreciate the entire evidence.

7. The Apex Court in the case of The workmen of

M/s. Firestone Tyre and Rubber Co. of India P. Ltd. Vs.

The Management and others1 (Firestone Tyre) has

summarized the principles governing the jurisdiction of the

Tribunal when adjudicating the disputes relating to dismissal

or discharge and at paragraph No.27 has held as under:

"27. From those decisions, the following principles broadly emerge:-

(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal., the latter has power to see if action of the employer is justified.

AIR 1973 SC 1227

(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.

(3) When a proper enquiry has been held by an employer, and the finding of misconduct is plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the, findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.

(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to, adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.

(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other

hand, the issue about the, merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.

(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.

(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.

(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his, action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee

and to enable the Tribunal itself to be satisfied about the alleged misconduct.

(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.

(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in The Management of Panitole Tea Estate v. The Workmen, 1971-1 SCC 742 = (AIR 1971 SC 2171) within the judicial decision of a Labour Court or Tribunal"

8. The Apex Court in the case of Uttar Pradesh

State Road Transport Corporation Vs. Gajadhar Nath2

(Gajadhar Nath) has held that in terms of Section 11A of the

ID Act, if the domestic enquiry has been held and the finding

of the misconduct is recorded, the authorities under the Act

have full power and jurisdiction to reappraise the evidence

and to satisfy themselves whether the evidence justifies the

(2022) 3 SCC 190

finding of misconduct, but where an enquiry is found to be

defective, the employer can lead evidence to prove

misconduct before the authority and the Apex Court placed

reliance on the decision reported in the case of Firestone

Tyre stated supra.

9. On the touchstone of the principles laid down by

the Apex Court, this Court needs to be looked into as to

whether the Labour Court has considered the evidence of the

parties while confirming the order of dismissal. The settled

proposition of law is that, the Court should not interfere

unless it is illogical or suffers from procedural impropriety or

is shocking to the conscience of the Court.

10. The management in order to justify the order of

dismissal, examined M.Ws.2 and 3, who categorically

deposed about the failure on the part of the workman to

issue tickets to two group of passengers and also deposed

about the involvement of the workman in serious default

cases and in spite of giving opportunity to reform himself, he

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has committed the offence. The Labour Court, considering

the evidence of the management and having found that the

witnesses stood the test of cross-examination and placing

reliance on material evidence to the commission of

misconduct on the part of the workman, arrived at a

conclusion that the order of dismissal does not warrant

interference and the imposition of punishment is not

disproportionate to the misconduct.

11. The consideration of past record without apprising

the workman will not amount to violation of principles of

natural justice and the past conduct of the workman cannot

be surprise to the workman and thus, this contention of the

petitioner's counsel cannot be accepted.

12. Insofar as contention of the petitioner that similar

employees of the Corporation who had committed similar

acts of misconduct were directed to be reinstated into

service, taking a lenient and sympathetic view, the said

contention of the petitioner's counsel is not accepted as it is

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settled that equality under Article 14 of the Constitution of

India is a positive concept and cannot be enforced in a

negative manner. Benefits extended to some person in an

illegal or irregular manner cannot be claimed by others on

the plea of equity. The Apex Court in the case of State of

Bihar and Others vs. Kameshwar Prasad Singh and

another3 has held that at paragraph No.30 as under:

"30. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, other cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh v. New Delhi Municipal Committee held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a

(2000) 9 SCC 94

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citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed: (SCC p. 465, para 9)

"Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination."

Again in Secy., Jaipur Development Authority v. Daulat Mal Jain this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding:

(SCC pp. 51-52, para 28)

"Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the

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respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents."

13. Even otherwise, each case depends upon the

peculiar facts and circumstances of the case, the jurisdiction

available to the Labour Court is when there is perversity in

the order of the Disciplinary Authority and the punishment

awarded by the Disciplinary Authority, unless shockingly

disproportionate to the charges. The punishment of dismissal

is for non-issuance of tickets to a group of passengers in

spite of collecting fare and the workman was inflicted of

serious default cases and opportunities were given to reform

by imposing minor punishment. Hence, the order of dismissal

by the Disciplinary Authority cannot be found fault with. The

Apex Court, under identical circumstances in the case of

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Devendra Swamy vs. Karnataka State Road Transport

Corporation4, has held at paragraph No.7 as under:

"7. The Division Bench of the High Court relied on the decisions of this Court in State of Haryana v. Rattan Singh, U.P. SRTC v. Basudeo Chaudhary and U.P. SRTC v. Subhash Chandra Sharma for forming opinion that unless punishment is shockingly disproportionate to the charge which has been proved the punishment awarded by the disciplinary authority should not be interfered in exercise of power of judicial review. In our opinion, the Division Bench was right in taking the view which it has taken. The opinion formed by the Labour Court that punishment of dismissal imposed by the management on the workman was too harsh and undeserved, was a perverse finding and arrived at by ignoring the material as to previous acts of misconduct and punishments awarded to the appellant brought to the notice of the disciplinary authority and the Labour Court. We are also of the opinion that the gravity of the charge of misconduct for which the disciplinary proceedings were initiated and which charge was found to be substantiated by the Labour Court seen in the light of previous service

(2002) 9 SCC 644