Allowed

The Divisional Controller, Nekrtc, v. Basavaraj S/O Sharanappa Bellad

Karnataka HC2 Jan 2020WP/83508/2009

Case brief

AI extract

What is this about?

Petitioner corporation assailed Labour Court's order reinstating respondent terminated for ticketless travel. High Court allowed writ petition in part: upheld reinstatement but set aside partial back wages due to prior misconduct and lack of continuity. Labour Court order modified on back wages.

What did the court decide?

Reinstatement of respondent upheld; award of 50% back wages by Labour Court set aside.

The Divisional Controller, Nekrtc, Vs… — Pension and Retirement Benefits | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

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DATED THIS THE 02^ND DAY OF JANUARY 2020

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO.83508/2009 (L-KSRTC)

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Between:

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The Divisional Controller, NEKRTC, Raichur Division, Raichur The petitioner is represented by its Chief Law Officer, NEKRTC Central Office, Gulbarga.

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… Petitioner

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(By Sri Sudhirsing R.Vijapur, Advocate)

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And:

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Basavaraj S/o Sharanappa Bellad, Aged about 34 years, Occ. Ex-Driver-cum-Conductor, (D.No.21, Sindhanoor Depot), R/o C/o Rachappa Balger, Kenned, Belger Oni (Kumbar Oni), Tq. Lingasugur, Dist. Raichur.

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… Respondent

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(By Sri Krupa Sagar Patil, Advocate)

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This writ petition is filed under Articles 226 and 227 of the Constitution of India, 1950 praying to issue a writ in the nature of certiorari thereby quashing the order dated 18.06.2009 passed by the learned Presiding Officer, Labour Court, Gulbarga in KID No.79/2007 at Annexure-D and consequently be pleased to dismiss the KID No.79/2007 filed by the respondent on the file of Presiding Officer, Labour Court Gulbarga in the interest of justice and equity.

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This petition coming on for preliminary hearing this day, the Court made the following:-

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ORDER

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The Corporation has filed this present writ petition assailing the correctness of the order dated 18.06.2009 passed by the Labour Court.

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2. The facts leading to the case are as under ;-

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The respondent was working as driver-cumconductor attached to the Sindhanoor Depot. On 15.11.2002 while he was on duty on bus bearing Reg.No.KA-36/F-299 which was under route from Tavaragera Gund to Sindhanur route. On route the officials made checking and it was found that out of the

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65 passengers travelling in the bus, about18 passengers were travelling in the bus without ticket. It was also found that the said 18 persons were travelling in two separate groups comprising of 10 and 8 persons from Kilar Hutti cross to Mamapur. The respondent despite having collected fare of Rs.2.50/- each at the time of boarding the bus had not issued tickets to 18 passengers. The officials having found the passengers travelling without tickets were imposed penalty under two separate receipts. The officials thereafter issued offence memo as per Ex.M.6 on the spot to the respondent and a detail report was sent to the disciplinary authority for further action. The disciplinary authority after issuing notice to the respondent held that the charges against the respondent are proved and accordingly dismissed the respondent from the service.

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The respondent being aggrieved by the order

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of removal filed a petition under Section 10(4-A) of the

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Industrial Disputes Act, 1947 before the Labour Court. The Labour Court on re-appreciation of the material on record set aside the order of the disciplinary authority and directed the present petitioner to reinstate the respondent by extending the continuity of service and also with 50% of the back wages from the date of termination order till reinstatement of service within four weeks from date of award coming into force on its publication. Being aggrieved by this order, the Corporation is before this court by filing top noted writ petition.

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Counsel appearing for petitioner vehemently

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argues and contends that in fact respondent while he was in service had past history of 11 cases. Insofar as the present misconduct which is subject matter of the present writ petition is concerned, he would vehemently submit and contend that misconduct of respondent who has indulged in misappropriation of corporation fund is proved. He would further argue and contend that the

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materials on record clearly indicate that he had collected the bus fare from 18 people and had deliberately not issued tickets. In this background the counsel for petitioner vehemently argues and contends that the Labour Court has reversed the order of the disciplinary authority without assigning any reasons and hence he would urge this court to interfere with the order of the Labour Court.

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Per contra, the counsel appearing for respondent would vehemently argue and contend that in view of the order of the Hon’ble Apex Court in regard to rural quota, the respondent was removed from the service. However later under fresh government notification dated 12.11.2003, fresh appointment was given to respondent by order dated 24.11.2003. Relying on this material fact the counsel for respondent would argue that the continuity of service is not extended to the respondent and respondent was given a fresh appointment. The misconduct in regard to his earlier

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service would be a bar for the Corporation to initiate departmental inquiry. In that view of the matter, he would vehemently argue and contend that the allegations in regard to earlier service could not have been raised by the management and the very inquiry by the disciplinary authority was one without jurisdiction. He would also bring it to the notice of this court that in fact the respondent was not given continuity of service. In that view of the matter, the alleged misconduct dated 15.11.2002 which in fact relates to his earlier service could not have been enquired into and hence he would request this court to dismiss the writ petition as being devoid of merits.

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Heard the counsel for the petitioner and the respondent. There is some force in the submission made by the counsel for respondent. It is not in dispute that in view of the order of this court in the writ petition, the service of respondent was terminated by holding that respondent is not eligible for appointment. It is also

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borne from the records that pursuant to the order of the Hon’ble Apex Court, it appears fresh appointment was given to the respondent during the year 2003. Admittedly the alleged misconduct is dated 15.11.2002. Though the respondent has not given continuity of service, However this court would find that Labour Court ought to have taken judicial note of his conduct while he was in service under the first appointment.

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It is trite that misconduct is a serious

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offence and it would be a financial burden to the management where the employees are indulging in misappropriating the funds of the corporation. The Courts have come down heavily on such tainted employees. It is a part of record, which clearly demonstrate that even under first employment, the respondent was guilty of several cases of misconduct.

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In the present case on hand, the Labour Court having examined the material on record has come

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to conclusion that the alleged misconduct of respondent is proved by the appellant-corporation. The Labour Court has recorded a categorical finding that the documents including the cross-examination of respondent goes to show that despite collecting fair amount, respondent has not issued tickets to the above said passengers. The Labour Court solely on the ground that the misconduct of respondent relates to his previous appointment has proceeded to hold that since he was given a fresh appointment on 12.11.2003 pursuant to the Government notification dated 12.11.2003 the misconduct if any cannot be examined. Though the Labour Court takes note of the misconduct of respondent which relates to his previous appointment given by the appellant-Corporation, but the Labout Court has proceeded to set-aside the termination order on the ground that he cannot be terminated on the ground of misconduct which relates to his previous appointment. The Labour Court was of the view that

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while giving second appointment, the benefit of continuity of service is not given to the respondent and it is a fresh appointment order and hence the appellantCorporation cannot reopen the old past history of misconduct relating to his previous appointment. On these grounds, the Labour Court has set-aside the termination order passed by the appellant-Corporation. But the question before this Court is whether Labour Court while directing the respondent to reinstate was justified in awarding 50% of back wages from the date of his termination till he was reinstated. Having recorded a finding that respondent is guilty of alleged misconduct of pilferage of Corporation funds was not justified in awarding 50% of back wages. In this background, this Court is of the view that respondent is not entitled for 50% of the back wages in the present case on hand. The Labour Court has not assigned any reasons in awarding 50% of back wages and also has not taken note of the conclusions arrived at while claim

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of respondent and hence the order of the Labour Court insofar as awarding back wages suffers from serious infirmities and hence, the order under challenge deserves to be modified by this Court.

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With these observations, the writ petition is allowed in part and the order of Labour Court insofar as reinstating the respondent-workman is concerned remains undisturbed. However, awarding of 50% of back wages by the Labour Court is set-aside.

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Sd/JUDGE

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The Divisional Controller, Nekrtc, v. Basavaraj S/O Sharanappa Bellad

Case brief

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The Divisional Controller, Nekrtc, v. Basavaraj S/O Sharanappa Bellad

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