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Karnataka High Court · body

2010 DIGILAW 1208 (KAR)

B. Narayanappa v. Managing Director, KSRTC

2010-11-23

V.JAGANNATHAN

body2010
Judgment :- 1. With the consent of the learned counsel for both the parties, this petition is disposed of finally. 2. The petitioner calls in question the award of the Labour Court by which the dispute raised by him under Section 10(4-A) of the Industrial Disputes Act, 1947 (‘I.D. Act’) for short) came to be rejected. 3. The facts in brief are that the petitioner was working as a Conductor in the respondent-K.S.R.T.C. and was on duty on 14.2.2005 in the bus bearing No.KA-07-F-368 plying from Pungnur to Mulabagilu. The vehicle was checked at Cheemanapalli by the Checking Inspector and it was found that the petitioner had not issued tickets to 16 passengers and the fare of Rs.3/- from the passengers was however collected by the petitioner. Therefore, a case for “non-issue but amount collected” (NIAC) was made out according to the Corporation. An enquiry was conducted and the charge leveled against the petitioner was found to have been established. Thereafter, the Corporation issued notice to the petitioner, enclosing the report of the Enquiry Officer along with the past history and, after receipt of the reply from the petitioner, the respondent-Corporation passed the order of dismissal (as per Annexure-F). 4. The said dismissal order became the subject matter of the dispute raised by the petitioner before the Labour Court. The learned Presiding Officer of the Labour Court, after considering the stand taken by the parties, answered the first issue concerning the fairness of the domestic enquiry in the affirmative. Thereafter, the evidence of the petitioner with regard to victimization was recorded and, after completion of the evidence and hearing the parties, the Labour Court held that, as the misconduct leveled against the petitioner had been proved and there being no perversity of finding recorded by the enquiry officer and even there being no material to show that the petitioner had been victimized by the Management, it was held by the Labour Court that no case was made out to interfere under Section 11-A of the I.D. Act with regard to the order of dismissal. The rejection of the dispute has thus give rise to this writ petition. 5. I have heard the learned counsel for the parties and perused the material forming part of the writ petition papers. 6. The submission of petitioner’s counsel Shri Lakshmana Rao is that the award of the Labour Court suffers from two defects. The rejection of the dispute has thus give rise to this writ petition. 5. I have heard the learned counsel for the parties and perused the material forming part of the writ petition papers. 6. The submission of petitioner’s counsel Shri Lakshmana Rao is that the award of the Labour Court suffers from two defects. The first one is that the petitioner was not allowed to adduce evidence before the enquiry officer and the petitioner was also not questioned by the enquiry officer as required under Rule 18 of the K.S.R.T.C. Service (Conduct & Discipline) Regulation, 1971 (‘C & D Regulations ‘for short). In this regard, the learned counsel made reference to the enquiry proceedings and submitted that there was denial of opportunity to the petitioner to place his evidence before the enquiry officer and on this ground alone, the Labour Court ought to have set aside the enquiry. 7. The next ground put forward is that the collection of penalty amount from the passengers indicates that it was a case of “non-issue non-collection” (NINC) and not a case of NIAC. Therefore, the Labour Court also erred in not properly appreciating the evidence let in before the enquiry officer and the finding of the enquiry officer being perverse in nature, the Labour Court could not have accepted the same. 8. The learned counsel for the petitioner also referred to the punishment imposed and contended that, even assuming that the petitioner had not issued tickets to 16 passengers, yet, the said charge cannot give rise to the punishment of dismissal, more so when the petitioner was not informed about his past record and relying on a decision of this court in W.A.No.686/2008, the submission made is that the order of dismissal is too disproportionate to the misconduct proved against the petitioner and, as such, the punishment be reduced. 9. The submission of Smt. H.R. Renuka, learned counsel for the respondents-Corporation, per contra, is that the Presiding Officer of the Labour Court has considered the entire material in great detail and has found that the petitioner himself had stated before the enquiry officer that there is no evidence to lead except filing the statement of the driver of the bus and sought for closing of the enquiry officer but to close the enquiry and to give his report. 10. 10. It is then submitted by the learned counsel that insofar as the charge of not issuing the tickets to 16 passengers but collected the fare of Rs.3/-from each passengers, thus totaling Rs.48/- it is to in dispute, because the petitioner himself has made endorsement on the document in which one of the passengers viz., Nallareddy, has stated that amount was collected by the petitioner. As such, the question of the charge levelled against the petitioner not being established does not arise in view of the very stand taken by the petitioner and his conduct of attesting the penalty receipt issued to one of the passengers. 11. As far as the applicability of Rule 18 of the C & D Regulations is concerned, it is argued that, first of all, the petitioner himself sought for closing of the proceedings by filing the statement of the driver and neither the petitioner nor the driver was offered for cross-examination by the Management and, apart from that, when the charge against the petitioner is clearly established in respect of non-issue of tickets though amount was collected from 16 passengers, the question of the workman being prejudiced for not following Rule 18 does not arise. 12. In the same context, the submission made is that the enquiry report was accepted by the Labour Court as fair and proper by answering issue-1 in favour of the enquiry held by the Management and the petitioner did not question the said order of the Labour Court. 13. As far as the dismissal of the petitioner is concerned, the submission made is that, along with the notice issued to the petitioner enclosing the report of the enquiry officer, the workman was also informed about his past record, which is evident from the very order of dismissal itself and the petitioner has not denied all those past incidents where he was punished and as there was 61 such past incidents, the respondent-Corporation also considered the past record as was required to be done in view of Regulation 25 of the Corporation Regulations and, therefore, the order of dismissal does not warrant any modification. 14. 14. Relying on the decisions reported in JT 2000 (10) SC 589, (2007) 2 SCC (L&S) 358 and 2008 AIR SCW 5139, the submission made by the learned counsel for the respondent-Corporation is that, when the charge against the petitioner stood proved with regard to non-issue of tickets, the order of dismissal is, therefore, just and proper and interference with the punishment does not arise. The learned counsel also argued that even without reference to the past record, the order of dismissal passed against the petitioner will have to be held as just and proper as the petitioner, who was holding a post of faith and trust, was found to be guilty of breach of trust. Under these circumstances, the power under Section 11-A of the I.D. Act has also been properly exercised by the Labour Court by not interfering with the order of dismissal. 15. In the light of the aforesaid contentions put forward, whether the award of the Labour Court is sustainable is the point for consideration. 16. The fact that the petitioner was a Conductor in the bus that was plying between Punganuru and Mulabagilu and that the vehicle was checked at Cheemanapalli on 14.2.2005 and it was found that the petitioner had not issued tickets to 16 passengers and the amount involved being Rs.3/- per passenger (Rs.48/-in all) is not in dispute. Before the enquiry officer, the said charge has been proved by the Management and the petitioner, on his part, did not choose to lead any evidence by entering into the witness box and only the statement of the driver was filed by him. As regards the enquiry proceedings, the petitioner himself submitted that he had no evidence to lead and does not want to examine any witness and sought for the enquiry to be closed, also indicates that there was no contra evidence placed before the enquiry officer by the petitioner. 17. Looking from another angle, even before the Labour Court, when the preliminary issue was considered as regards the fairness of the enquiry, though, on behalf of the Management, the enquiry officer was examined as M.W.1, on the part of the petitioner, once again no evidence was let in by him as has been noted by the Labour Court in the course of its award. Thus, the petitioner virtually conceded not only the fairness of the enquiry held against him, but also the findings recorded by the enquiry officer. The order passed by the Labour Court upholding the domestic enquiry also was accepted by the petitioner as he did not question the same. 18. The learned Presiding Officer of the Labour Court has considered all these aspects of the matter at paragraphs-15 to 17 of the award and has ultimately held that the findings of the enquiry officer cannot be termed as perverse. Thus, when the enquiry held is accepted as fair and proper by the Labour Court after careful appreciation of the entire evidence, this court cannot interfere with the said findings recorded by the Labour Court on facts unless it is shown that the findings are perverse in nature. No such situation has arisen in this case. 19. Coming to the quantum of punishment, the workman was issued with the notice enclosing the report of the enquiry officer and also past record of the petitioner was brought to his notice. Letter dated 1.6.2005 informed the petitioner about various acts of misconduct committed by him in the past. To this, the petitioner has not offered any explanation nor has he denied the fact of he having been found guilty in as many as 61 cases in the past. 20. The next point to be considered is as to the possibility of victimization. The learned P.O. of the Labour Court has considered even this aspect of the matter and has observed that there was no material placed to show that the Management had an axe to grind against the petitioner. As far as the punishment is concerned, it is a case of the petitioner having failed to issue tickets to 16 passengers despite collecting the fare. In view of the submission made by the learned counsel for the Corporation that subsequent to 8.2.2004, penalty will be imposed even on a passenger who does not hold the ticket, the question of the case falling under NINC category, therefore does not arise. Being a Conductor employed with the Corporation and holding a post of faith and trust, it was incumbent on the part of the petitioner to see that the Corporation is not put to loss. 21. The Apex Court, in the case of Managing Director, North-East Karnataka Road Transport Corporation Vs. Being a Conductor employed with the Corporation and holding a post of faith and trust, it was incumbent on the part of the petitioner to see that the Corporation is not put to loss. 21. The Apex Court, in the case of Managing Director, North-East Karnataka Road Transport Corporation Vs. K. Murti, reported in (2007) 2 SCC (L&S) 358, has held that where a Conductor was found carrying the passengers without issuing them tickets, it amounts to dishonesty or grave negligence and for such misconduct, the punishment of removal from service is justified, Paragraph-9 of the aforesaid decision reads as under: “9. In the instant case, the position held by the employee (conductor) is one of faith and trust. A conductor holds the post of trust. A person guilty of breach of trust should be imposed punishment of removal from service. The respondent’s conduct in not collecting the requisite fare at the designated place from persons who had traveled were in violation of various regulations contained in the provisions of the Karnataka State Road Transport Corporation Servants (Conduct and Discipline) Regulations, 1971.” 22. In the case of Janatha Bazar (South Kanara Central Co-operative Wholesale Stores Limited) Etc. Vs. The Secretary, Sahakari Noukarara Sangha Etc., reported in JT 2000 (10) SC 589, dealing with a case of misappropriation, the Apex Court held that, in case of proved misappropriation, the question of considering past record does not arise and it is the decision of the employer to consider the same in appropriate cases. But, the Labour cannot substitute the penalty imposed by the employer in such cases. 23. As far as the power under Section 11-A of the I.D. Act is concerned, the Apex Court, in another decision in the case of North-West Karnataka Road Transport Corporation Vs. H.H. Pujar, reported in 2008 AIR SCW 5139, has held that, where the conductor was found carrying ticketless passengers and the fairness of the domestic enquiry is conceded by the delinquent and where there is admission of tickets having not been issued to the passengers, in such circumstances, interference with the order of dismissal does not arise notwithstanding the fact that some of the ticketless passengers were not examined. 24. All the aforesaid decisions are applicable to the case on hand. 24. All the aforesaid decisions are applicable to the case on hand. As regards the decision referred to by the petitioner’s counsel is concerned, the facts and circumstances involved in W.A.No.686/2008 are different from the one with which we are concerned in this petition. In the case referred to by the petitioner’s counsel, the court found that the workman was not informed of his past record and, therefore, the court held that, without making known the workman about his past record, it may not be possible for the employee concerned to offer his explanation and it was found on facts in the said case that the disciplinary authority has not notified the appellant about his past service record. Whereas, in the instant case, the order of dismissal (Annexure-F) reveals that the petitioner was informed, while calling for his explanation before passing the order of dismissal, about the past history by letter dated 1.6.2005. The petitioner had nothing to say about that. 25. One other factor to be taken note of is that, even in the writ petition, the grounds urged in no way relate to the argument that is put forward by the petitioner’s counsel inasmuch as no ground is urged with regard to the petitioner being not given opportunity to lead evidence before the enquiry officer nor any of the grounds relate to the petitioner being not informed of his past record. 26. In the light of the foregoing reasons, I do not see any error being committed by the Labour Court in rejecting the reference. The writ petition is, therefore, dismissed.