Allowed

The Divisional Controller v. Sharanappa S/O Sangappa Melkundi

Karnataka HC20 Mar 2017WP/68218/2010

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed an Industrial Tribunal award that reduced the quantum of punishment for a bus conductor. Citing settled law, the Court held that the Tribunal cannot interfere with the quantum of punishment unless the case falls under Section 11A of the Industrial Disputes Act.

What did the court decide?

Impugned Industrial Tribunal award set aside and matter remitted to the Tribunal for fresh adjudication within six months.

The Divisional Controller Vs Sharanappa S/O… — Service and Employment | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 20^th DAY OF MARCH 2017

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BEFORE

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THE HON’BLE DR. JUSTICE VINEET KOTHARI

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WRIT PETITION No.68218 of 2010 (L-KSRTC)

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BETWEEN:

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THE DIVISIONAL CONTROLLER N W K R T C, BELGAUM DIVISION, BELGAUM REPTD.BY, THE MANAGING DIRECTOR, NWKRTC, CENTRAL OFFICE GOKAL ROAD, HUBLI.

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... PETITIONER

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(By SMT. SHASHIKALA L DESAI ADV.)

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AND:

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SHARANAPPA S/O SANGAPPA MELKUNDI AGE: MAJOR, OCC: CONDUCTOR, R/O: LIC-93, SHIV SHAKTI NIVAS ASHOK NAGAR, BELGAUM, DIST: BELGAUM.

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... RESPONDENT

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(By Sri. S K HEGDE ADV.)

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THIS WP IS FILED UNDER ARTICLES 226 & 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI OR ANY OTHER WRIT OR MODIFIED ORDER BE QUASHED THROUGH AWARD PASSED BY

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Date of Order: 20.03.2017 WP No.68218/2010 The Divisional Controller, NWKRTC Vs. Sharanappa S.Melkundi

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THE INDUSTRIAL TRIBUNAL HUBLI IN ID NO.153/07 DATED 26.04.2010 WHICH HAS BEEN PRODUCED IN ANNEXURE-F.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Mrs. Shashikala .Desai , Adv. for petitioner. Mr. S.K.Hegde , Adv. for respondent.

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The employer-NWKRTC in the present case is challenging the order and award passed by the Industrial Tribunal, Hubballi, in I.D. No.153 of 2007, Sharanappa S/o. Sangappa Melkundi Vs. The Divisional Controller, NWKRTC, Belagavi Division, Belagavi, dated 26^th April 2010, by which the learned Tribunal passed the following order against the NWRKTC:

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“ 3. On coming to the punishment imposed against the first party claimant is concerned, as per punishment order dated 11.4.2005 the basic pay of the first party claimant is

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Date of Order: 20.03.2017 WP No.68218/2010 The Divisional Controller, NWKRTC Vs. Sharanappa S.Melkundi

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reduced into four incremental stages with cumulative effect. It is true that the first party is having past history default case list, which is at Ex.M.25, and as per the same, there are 34 past history default cases against him. In the present case also severe misconduct is proved against him. Even severe misconduct is proved, the punishment imposed of reducing his basic pay into four incremental stages with cumulative effect is certainly disproportionate to the proved misconduct. The opinion of this tribunal for the proved misconduct against the first party claimant it is just and proper if he is punished by reducing his basic pay into two incremental stages permanently and thus, the punishment order dated 11.4.2005 is liable to set aside and to modify the same by directing the second party respondent to punish the first party claimant for the proved misconduct by reducing his basic pay into two incremental stages permanently. The remaining portion of the punishment order regarding treating his

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Date of Order: 20.03.2017 WP No.68218/2010 The Divisional Controller, NWKRTC Vs. Sharanappa S.Melkundi

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suspension period as not on duty is correct, but, in case, during the suspension period the subsistence allowance is not paid, the same is liable to pay by the second party respondent to the first party claimant. Thus, I answer this issue accordingly.

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12. Issue No. 3: Observing above and thus I proceed to pass the following order:

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ORDER

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1. The reference made by the Government of Karnataka under section 10(1) (d) of the Industrial Disputes’ Act 1947 in I.D. 153/2007 is partly allowed in the Following Terms:

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1(a) The punishment order passed by the second party claimant bearing No.WaKaRaSa : BeV : ShiPa: T 1641 : 04 : 2031 dated 11.4.2005 reducing his basic pay into four incremental stages with cumulative effect is set aside and the same is modified.

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Date of Order: 20.03.2017 WP No.68218/2010 The Divisional Controller, NWKRTC Vs. Sharanappa S.Melkundi

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1(b) The second party respondent is directed to punish the first party claimant for the proved misconduct against him by reducing his basic pay into two incremental stages permanently from the date of passing of the punishment order dated 11.4.2005

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1(c) The remaining portion of the punishment order regarding treating the suspension period of the first party claimant as not on duty, is confirmed. In case, if during the suspension period the subsistence allowance is not paid, the second party respondent is directed to pay the same to the first party claimant.

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2. The second party respondent is directed to calculate the arrears in terms of this award and to pay the same to the first party claimant within four weeks from

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Date of Order: 20.03.2017 WP No.68218/2010 The Divisional Controller, NWKRTC Vs. Sharanappa S.Melkundi

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the date of this award coming into force on its publication.

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3. Send the copy of this award to the Government for its publication under section 17(1) of the Industrial Disputes Act, 1947.

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4. Parties to bear their own costs.

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(Dictated to the Judgement Writer, transcribed and computerized by her, corrected and then pronounced by me in open court his 26^th day of April, 2010).

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Sd/[C.S.Malagi] Presiding Officer, Industrial Tribunal, Hubli ”

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The learned counsel for the petitioner-NWKRTC

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has submitted that on the proved misconduct of the respondent-

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workman while he was working as a Conductor of the bus bearing registration No.KA-29/F-625 on the route Mysore to Belagavi, on checking on 07^th August 2004 found that he had failed to issue tickets to two passengers who were travelling

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Date of Order: 20.03.2017 WP No.68218/2010 The Divisional Controller, NWKRTC Vs. Sharanappa S.Melkundi

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from Mysore to Kadur and failed to collect the requisite fare of Rs.104/- each.

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The defence taken by the respondent conductor

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was that these two passengers had obtained their reservation tickets for their journey from Mysore to Shivamogga, but they somehow lost their purchased tickets in their travel and therefore, decided to get down at Kadur, a station falling en route between Mysore and Shivamooga. In their statement recorded by the enquiry officer, a copy of which is at Annexure ‘C’, which is in vernacular language was explained, subject to verification by the opposite counsel, they have stated that they had bought the tickets for the entire journey from Mysore to Shivamogga for Rs.300/- each on 07^th August 2004, but they lost their tickets in the transit and therefore, they could not produce the same at the time of checking at Kadur.

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Date of Order: 20.03.2017 WP No.68218/2010 The Divisional Controller, NWKRTC Vs. Sharanappa S.Melkundi

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The learned Tribunal, however, appreciating this

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evidence found that charge has been proved, but reduced the penalty of withholding of four grade increments to withholding of two grade increments and modified the penalty order dated 11^th April 2005 passed by the disciplinary authority.

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On the other hand, learned counsel for the respondent-workman submitted that the charge in the present case could not be said to be proved, as a reasonable explanation was given by the passengers concerned themselves before the enquiring officer that the tickets were duly purchased by them at the time of their commencement of travel from Mysore to Shivamogga, but unfortunately they lost their tickets in such transit. He submitted that nothing contrary could be elicited in the cross-examination of these two witnesses and the Tribunal

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has erred in holding that the charge was proved and the punishment was unduly modified and reduced from four grade

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Date of Order: 20.03.2017 WP No.68218/2010 The Divisional Controller, NWKRTC Vs. Sharanappa S.Melkundi

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increments to two grade increments which could not have been done and the entire punishment deserved to be set aside.

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He has further submitted that nothing about the

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history of default cases against the respondent was proved during the enquiry proceedings and the respondent-workman could not be punished twice over for the earlier defaults even if it was assumed there was some default.

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Having heard the learned counsels for the parties, this Court is satisfied that the charge in the present case does not appear to have been proved appropriately beyond a reasonable doubt, nor even if the preponderance of probabilities premise is taken, the explanation furnished by the passengers can be said to be totally unbelievable. Unless their stand taken in the examination-in-chief is controverted upon the crossexamination by the enquiry officer or the prosecution officer, the charge in question of the two passengers travelling without

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Date of Order: 20.03.2017 WP No.68218/2010 The Divisional Controller, NWKRTC Vs. Sharanappa S.Melkundi

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ticket, cannot be said to have been proved. The past history of defaults against him also could not be made the basis of punishing the respondent-Conductor, without this being specifically alleged during the enquiry proceedings and the explanation of the respondent-workman taken into account. This Court also expresses its concern over the Industrial Tribunals interfering or tinkering with the quantum of punishment imposed by the disciplinary authorities, except when the case attracts Section 11A of the Industrial Disputes Act, 1947.

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The Hon’ble Supreme Court in the case of General

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Secretary, South Indian Cashew Factories Workers Union Vs. Managing Director, Kerala State Cashew Development Corporation Limited and others, AIR 2006 SC 2208 , has held that the Tribunals or Courts cannot interfere with the quantum of punishment which has been imposed on the delinquent depending upon the nature of charge being proved in the

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Date of Order: 20.03.2017 WP No.68218/2010 The Divisional Controller, NWKRTC Vs. Sharanappa S.Melkundi

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enquiry proceedings. Unless the punishment is shockingly disproportionate to the nature of charge, the Courts in their discretion, cannot substitute their opinions about the quantum of punishment.

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In view of the aforesaid settled position, this Court

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is satisfied that the impugned award of the Industrial Tribunal, Hubballi, cannot be sustained and the same deserves to be set aside.

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The matter is, thus, remitted back to the learned Industrial Tribunal, Hubballi for deciding again the said dispute between the parties afresh within a period of six months from today. The parties without any further notice will appear before the learned Industrial Tribunal, Hubballi on 18^th April 2017 .

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The Writ Petition is accordingly disposed of . No costs.

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Sd/JUDGE

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RK/-

The Divisional Controller v. Sharanappa S/O Sangappa Melkundi

Case brief

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The Divisional Controller v. Sharanappa S/O Sangappa Melkundi

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