Allowed

Feroz Pasha M B v. the Divisional Controller

Karnataka HC8 Oct 2012WP/24090/2012

Case brief

AI extract

What is this about?

The court allowed a writ petition challenging an Industrial Tribunal award regarding punishment for misconduct. The court held the Tribunal failed to frame an issue on enquiry fairness or examine perversity/victimization, set aside the award, and remitted the matter.

What did the court decide?

The award dated 23.08.2011 in I.D. No.163/2009 is set aside and the matter is remitted to the Industrial Tribunal for fresh disposal.

Feroz Pasha M B Vs the Divisional Controller — Pension and Retirement Benefits | Karnataka HC (2012)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 8TH DAY OF OCTOBER 2012

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BEFORE

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THE HON'BLE MR. JUSTICE SUBHASH B.ADI

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WRIT PETITION No.24090/2012(L-KSRTC)

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BETWEEN :

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FEROZ PASHA M B S/O LATE M.BAHADUR SAB AGED ABOUT 56 YEARS, CONDUCTOR, K C NO.185, K.S.R.T.C. KGF DEPOT, KOLAR DIVISION, KOLAR.

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PETITIONER

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( BY SRI.G.S.NAVEEN KUMAR FOR M/S S B MUKKANNAPPA & ASSTS., ADVS., )

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AND :

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THE DIVISIONAL CONTROLLER K.S.R.T.C, KGF DEPOT, KOLAR DIVISION, KOLAR.

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...RESPONDENT

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( BY SRI.HAREESH BHANDARY, ADV.,)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED AWARD DATED 23.8.2011 PASSED BY THE INDUSTRIAL TRIBUNAL AT BANGALORE IN I.D. NO.163/2009

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AT ANNEXURE-G.

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DIRECT THE RESPONDENT TO RESTORE THE INCREMENTS OF THE PETITIONER WITH ALL OTHER MONITORY BENEFITS.

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THIS PETITION IS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Sri Hareesh Bhandary, learned counsel is directed to take notice for the respondent.

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This is workman`s writ petition challenging the award dated 23.08.2011 in I.D. No.163/2009 on the file of

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the Industrial Tribunal, Bangalore.

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An enquiry was initiated against the petitioner as

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against the alleged misconduct of non-issue of ticket of denomination of Rs.190/- to a passenger travelling from Madikeri to Bangalore after collecting the fare. The Enquiry Officer held that, the charges are proved and submitted his

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report. The disciplinary authority, on consideration, passed an order of punishment on 19.10.2006 reducing the basic

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pay of the petitioner by three incremental stages with cumulative effect. It is against the said punishment, the petitioner got the dispute referred to the Industrial Tribunal under Section 10(1)(d) of the Industrial Disputes Act, 1947 (hereinafter referred to as **the Act**). On reference, the Tribunal, only on the ground that the order of punishment is minor, has confirmed the same.

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When a dispute is referred to the Industrial Tribunal and if the claimant claims that the enquiry was not fair and proper and he had no opportunity, the Tribunal is duty bound to frame an issue as to “whether the enquiry is fair and proper?”. If the Tribunal comes to the conclusion that the enquiry is fair and proper, it shall consider the evidence on record for the purpose of deciding as to whether the findings of the Enquiry Officer are perverse or whether there is any victimization.

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Surprisingly, the Tribunal does not even frame an

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issue as regard to the fairness of the enquiry. During the course of the order, it has also referred to the evidence and observed that there was an error in mentioning the number of passengers in the way bill. It also holds that the reply to the second show cause notice was not considered by the disciplinary authority, however, rejected the reference only on the ground that since the punishment imposed on the petitioner is a minor punishment, the Tribunal cannot lessen the same by invoking the provisions of Section 11-A of the Industrial Disputes Act.

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No doubt, Section 11-A of the Act cannot be

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invoked in case of punishment other than discharge, dismissal or termination, but as far as punishment in the instant case is concerned, the Tribunal was required to give a finding as to whether the findings of the Enquiry officer were perverse and if they were found to be perverse, the Tribunal should have set aside the order of punishment. Even with regard to victimization, the Tribunal should have

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considered the material on record and given a finding. The Tribunal, neither considers victimization nor perversity of the findings. As such, in my opinion, the Tribunal has failed to exercise the jurisdiction vested in it. Hence, the matter requires reconsideration.

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Accordingly, the writ petition is allowed. The award dated 23.08.2011 in I.D. No.163/2009 on the file of the Industrial Tribunal, Bangalore, is hereby set aside. The matter is remitted to the Industrial Tribunal for fresh disposal.

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The parties are directed to appear before the Industrial Tribunal on 30th October 2012.

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All the contentions of the parties are kept open.

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Sd/JUDGE

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sma

Feroz Pasha M B v. the Divisional Controller

Case brief

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Feroz Pasha M B v. the Divisional Controller

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