Research › Search › Judgment

Karnataka High Court · body

2018 DIGILAW 361 (KAR)

Divisional Controller NWKRTC, Bagalkot Division Bagalkot v. Chandrashekar, S/o. Hanamanthappa Mukkannavar

2018-03-13

K.N.PHANEENDRA

body2018
ORDER : The respondent Chandrashekar was working in the petitioner’s – Institution as an Assistant Traffic Inspector (for short, ‘ATI’). There was a complaint lodged by one Mr. B.V. Shelavadi against one Mr. Mukri, ATI, with regard to the ill-treatment, harassment and demand of illegal gratification from him and the respondent herein. The said Mr. B.V. Shelavadi was working as a Conductor under the petitioner. In this context, a complaint was lodged to Lokayuktha Police by said Mr. B.V. Shelavadi and on 19.07.2007 a trap was laid by Lokyuktha Police against said Mr. Mukri, ATI. It is alleged that on 17.07.2007 at about 17 hours while Mr. Mukri and this respondent Chandrashekar were working together, the said Mukri was caught red-handed while accepting bribe. On the basis of the said investigation a case has been registered against the said Mr. Mukri and also this respondent. It is alleged that respondent was also involved in the said case, suspecting the hand of the respondent, the Lokayukta police have arrested him and thereafter he was released on bail. However, it appears, charge-sheet has been laid by the Lokayukta police against Mr. Mukri and as well as this respondent. 2. A departmental enquiry was also initiated against this respondent and after thorough enquiry he was dismissed from service. The said order of dismissal was called in question before the Labour Court in K.I.D. No.19/2012 and on 26.02.2013 the Labour Court has set aside the order of dismissal passed by the petitioner herein and ordered for reinstatement with all backwages and with continuity of service. The said order is called in question before this Court. 3. The learned counsel for the petitioner – Corporation strenuously contends before this Court that the proof that, is required before the departmental enquiry is only by preponderance of probabilities and not beyond reasonable doubt. The Labour Court has provided opportunity to both the parties to lead evidence and held that, the enquiry conducted by the department was not fair and reasonable. The petitioner has placed sufficient material before the Labour Court by producing all the necessary documents with regard to registration of a case against Mr. Mukri and the respondent herein in Crime No.2/2007. The copy of FIR and other trap panchanamas, Inspection report etc., have been produced before the Enquiry Officer and as well as before the Labour Court. One Mr. Mukri and the respondent herein in Crime No.2/2007. The copy of FIR and other trap panchanamas, Inspection report etc., have been produced before the Enquiry Officer and as well as before the Labour Court. One Mr. Shripati was examined as M.W.1, who has stated about the relevancy of those documents and also involvement of respondent in the said case. Inspite of that, the Labour Court has not properly appreciated the materials on record and has erroneously set aside the dismissal order passed by the petitioner Corporation. He further submits that, even the Labour Court having come to the conclusion that the termination or dismissal of the respondent is illegal, but no reasons have been assigned to order for full backwages even for the period for which respondent has not worked with the petitioner Corporation. Therefore, for all these reasons he pleads for setting aside the order of Labour Court. 4. Per contra, the learned counsel for respondent brought to the notice of this Court that no evidence as such has been laid before the Enquiry Officer or before the Labour Court to prove the case against the respondent atleast by preponderance of probabilities. The main case of the petitioner is rested on the FIR in criminal case and as well as the evidence of one Mr. B.V. Shelavadi, but the said person himself has not been examined either before the Enquiry Officer or before the Labour Court in order to establish the connection between the respondent and the case alleged against Mr. Mukri. Therefore, the Labour Court having come to the conclusion that even the case has not been proved by means of preponderance of probabilities, passed the impugned order. The observation made by the Labour Court and the appreciation of the material itself discloses that there is a wrongful act on the part of the petitioner in wrongfully preventing the respondent from discharging his duties. Therefore, though there are no special reasons assigned but if the entire order of the Labour Court is considered the court has observed the wrongful act of the petitioner, therefore, it has rightly awarded full backwages. There is no illegality committed by the Labour Court. Therefore, the same does not call for any interference at the hands of this Court. 5. There is no illegality committed by the Labour Court. Therefore, the same does not call for any interference at the hands of this Court. 5. On careful perusal of the entire materials on record and also the findings given by the Labour Court, it is crystal clear that on the date of the incident that was on 19.07.2007 when the Lokayukta police have nabbed Mr.Mukri by laying trap upon him, this respondent was not at all available and even the driver of the bus has given a statement that, this Chandrashekar was not available on the spot. The Labour Court has also observed that before trapping Mr. Mukri by Lokayukta police, both Mukri and the respondent had made a complaint against Mr. B.V. Shelavadi. The Court also observed that there was recovery of some amount at the instance of Mr. Mukri and not at all at the instance of this respondent. The witness examined before the Labour Court M.W.1, Mr. Shripati is nowhere connected with the incident at all. He only spoke about the documents collected subsequently against the respondent and what transpired thereafter with regard to the arrest of the respondent by the Lokayukta police and also laying of a charge-sheet against him and pendency of the case against the respondent before the criminal Court. He has no locus to speak about what exactly happened on 19.07.2007 at the spot. Because M.W.1 was not an eyewitness to the incident nor he was at any point of time present during the course of any investigation done by Lokayukta police. The Labour Court also observed in the order that, the police have just cited the respondent as accused No.2 without any basis. Mr. Shripati who was examined as M.W.1 has also not stated exactly about the involvement of this respondent with Mr. Mukri, who was trapped in connection with the said case. Even the Labour Court has come to the conclusion that, no evidence has been adduced exactly to show the connection between respondent with that of said Mr. Mukri, particularly with regard to the incident dated 19.07.2007. Very particularly, the said complainant Mr. B.V. Shelavadi was not examined either by the Enquiry Officer or before the Labour Court. The said person is only the competent person who has initiated the criminal case and responsible for subsequent trapping of Mr. Mukri to say anything about the involvement of the respondent. Very particularly, the said complainant Mr. B.V. Shelavadi was not examined either by the Enquiry Officer or before the Labour Court. The said person is only the competent person who has initiated the criminal case and responsible for subsequent trapping of Mr. Mukri to say anything about the involvement of the respondent. But such evidence is conspicuously not led by the petitioner either before the Enquiry Officer or before the Labour Court. Perhaps that may be the reason the Labour Court has come to the conclusion, that the enquiry held by the petitioner against the respondent is not fair and in accordance with the procedure, and as such the said enquiry has been set aside and the said order on the preliminary point has not been subjected to any challenge by the petitioner. Even before the Labour Court, when the opportunity was granted, such evidence has not been led to show the exact involvement of respondent in the said crime alleged against Mr. Mukri. It is not that the petitioner has to prove the case beyond all reasonable doubt. But alteast some circumstances must be placed before the Court to show the involvement of the respondent in connection with the crime particularly alleged so far as this case is concerned. It is not based on any previous misconduct or any other allegations the enquiry has been conducted against the respondent. The enquiry was conducted particularly with reference to the present incident taken place on 19.07.2007. Therefore, it was incumbent upon the petitioner to adduce sufficient and satisfactory evidence in order to establish the guilt or misconduct of the respondent. The evidence of Mr.Shripati shows that he has only produced all the documents and given evidence on behalf of the petitioner Corporation, as observed by this Court said witness has no personal knowledge about the incident or the truth or falcity of the allegations made against the respondent. The person who knows truth about the allegations has not at all been examined. Therefore, under the above said facts and circumstances of the case, the Labour Court has rightly come to the conclusion that the order of dismissal passed against the respondent was illegal and rightly set aside the same. 6. The person who knows truth about the allegations has not at all been examined. Therefore, under the above said facts and circumstances of the case, the Labour Court has rightly come to the conclusion that the order of dismissal passed against the respondent was illegal and rightly set aside the same. 6. Coming to the awarding of backwages, the learned counsel for the petitioner has relied upon a ruling of the Apex Court in the case of P.V.K. Distillery Limited v. Mahendra Ram, reported in 2009(5) SCC 705 wherein the Apex Court has observed in the following manner : “Held : Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result, but now with the passage of time, a pragmatic view of the matter is being taken by the Supreme Court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. In deciding the question as to whether the employee should be recompensed with full back wages and other benefits until the date of reinstatement, the tribunals and the courts have to be realistic. The appellant’s factory had been taken over by a new management altogether, and asking the appellant to pay full back wages for the long interregnum would be unfair and unjust. Also, the workman has not entered appearance to justify the award passed by the Labour Court. Therefore, it would be unreasonable to put a huge burden on the appellant by directing it to reinstate the respondent with continuity of service and with full back wages, because the appellant’s factory had been declared sick and remained closed for many years and has been assigned to a new management in order to rehabilitate/reconstruct it.” 7. On careful perusal of the above said judgment, in my opinion, awarding of backwages depends upon various factors involved in that particular case. On careful perusal of the above said judgment, in my opinion, awarding of backwages depends upon various factors involved in that particular case. The Court has to circumspect all the circumstances involved in the case in order to draw an inference on what ground the respondent was prevented from discharging his duties during that particular period for which backwages were allowed. In the above said decision of the Apex Court though the Apex Court has observed that, though an order of termination was invalid or illegal, but granting of full backwages is not automatic. The Court has to look into all other surrounding circumstances before ordering the same. In the above said decision, the Court has come to the conclusion by considering the circumstances that the appellant’s Company had been declared sick and remained closed for many years and had been assigned to new Management. This indicates that the employer himself was not working during that time i.e., due to the sickness of the company and being assigned to new Management. Perhaps that may be one of the strongest circumstance where the Apex Court has observed that though the termination order was illegal the awarding of backwages was not proper. That is not the case on hand before this Court. 8. It is evident from the records and from the observations made by the Labour Court it appears that, this respondent man was unnecessarily implicated in a criminal case even without there being any material on record. Therefore, the Management without looking into all the circumstances has illegally terminated the respondent from his services. Therefore, it goes without saying that though the respondent may be agile, eager and willing to work and discharge his duties he was prevented not by his act but by any of his wrongful act of the petitioner. When such being the case, when there is no material to implicate him in a crime or draw an inference of misconduct, under such circumstances no fault is attributable even remotely, so far as the respondent is concerned in order to fasten any responsibility or liability to any extent of him. 9. Under the above said circumstances, I do not find any strong reason to interfere with the order of the Labour Court in awarding full backwages to the respondent. Therefore, the petition is devoid of merits and the same is liable to be dismissed. 9. Under the above said circumstances, I do not find any strong reason to interfere with the order of the Labour Court in awarding full backwages to the respondent. Therefore, the petition is devoid of merits and the same is liable to be dismissed. Accordingly, petition is dismissed.