Partly allowed

N. Nagaraj v. the Divisional Controller

Karnataka HC3 Sept 2022WP/39572/2018

Case brief

AI extract

What is this about?

The High Court quashed an Industrial Disputes award because the Presiding Officer neglected the predecessor's finding that the enquiry was unjust and failed to independently examine the matter before reinstating the previous conclusion.

What did the court decide?

Certiorari issued quashing the impugned award dated 29.06.2018; matter remitted to the District Judge of Chikkaballapur to decide Issue No. 2 afresh.

N. Nagaraj Vs the Divisional Controller — Pension and Retirement Benefits | Karnataka HC (2022)

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WP No. 39572 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 39572 OF 2018 (L-KSRTC)

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BETWEEN:

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N. NAGARAJ S/O C. NARAYANASWAMY AGED ABOUT 55 YEARS R/AT THIPPAREDDY NAGENAHALLI CHIKKABALLAPURA TALUK AND CHIKKABALLAPURA DISTRICT-562 104

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…PETITIONER

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(BY SRI. L. SHEKAR, ADVOCATE)

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AND:

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THE DIVISIONAL CONTROLLER K.S.R.T.C., CHIKKABALLAPUR DIVISION CHIKKABALLAPURA

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…RESPONDENT

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(BY MS. H.R. RENUKA, ADVOCATE)

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Digitally signed by POORNIMA SHIVANNA Location: HIGH COURT OF KARNATAKA

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED AWARD DATED 29.6.2018 PASSED BY THE PRL. DISTRICT JUDGE, CHIKKABALLAPUR IN I.D.NO. 33/2016 AT ANNEXURE-A TO THE WRIT PETITION.

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

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WP No. 39572 of 2018

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ORDER

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The petitioner is before this court seeking for the following reliefs:

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a. ISSUE a writ in the nature of certiorari quashing the impugned award dated 29.6.2018 passed by the Prl. District Judge, Chikkaballapur in I.D.No. 33/2016 at Annexure-A to the writ petition.

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b. Issue a writ or order in the nature of writ of mandamus directing Respondent Corporation to reinstate the Petitioner back into service with all consequential benefits including full back wages from the date of dismissal till the date of reinstatement.

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c. Issue any appropriate writ, order or direction as this Hon’ble Court may deems fit to grant by considering the facts and circumstances of the case and an order as to costs to meet the ends of justice.

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The petitioner was working as a conductor in the respondent Road Transport Corporation (‘Corporation’ for short) from the year 1995. The petitioner was issued an Article of charge on 21.04.2012 alleging that there was a misconduct on his part in that there were bus passes which had been fabricated and issued free of cost.

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WP No. 39572 of 2018

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An enquiry officer having been appointed, he submitted a report stating that the charges have been proved. Considering the same, the disciplinary authority dismissed the petitioner from service. Aggrieved by the order of dismissal, the petitioner filed an appeal before the Appellate Authority. The Appellate Authority rejected the appeal and as such, a claim petition came to be filed under Section 10(4A) of the Industrial Disputes Act [‘ID Act’ for short] before the Prl. District Judge, Chikballapur in I.D. No.33/2016. The said Court though has held the enquiry not to be proper, the subsequent Judge who was posted to the said office has wrongly come to a conclusion that his predecessor has held enquiry to be proper and accepted the same and dismissed the petition filed by the petitioner and it is on that basis that Sri.L.Shekhar, learned counsel for the petitioner would submit that the trial Court has committed a gross error by recording that the predecessor has

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WP No. 39572 of 2018

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held the enquiry to be proper and accepted the entire enquiry report to be proved which is not permissible.

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That apart, learned counsel L.Shekhar submits that the respondent-Corporation has not led the evidence of the relevant witnesses who are said to have been present at the time when inspection of the bus was conducted, the bus passes seized nor has evidence been led by the person who has examined the bus passes. On these grounds he submits that the order passed by the trial Court is required to be set-aside. In this regard he relies upon the decision of this Court in The Management of Syndicate Bank -vSri. S.S.Deshpande] [2018 LRR 866] more particularly paragraph 8 and 9 thereof which are reproduced hereunder for easy reference:

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8. During the hearing of this appeal to a specific question to the learned counsel appearing for the appellant as to whether Madhukar has been examined as witness in the enquiry or not? Learned counsel specifically answered that the said Madhukar has not been examined as witness in the enquiry. As rightly observed by the learned Single Judge, the said Sri. Madhukar is also responsible as to how he accepted

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WP No. 39572 of 2018

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the cheque given by the petitioner. Having regard to the fact that the complaint made by Sri. F.H. Bhagavan is withdrawn subsequently; as signature of the petitioner is not found on the reverse side of the cheque and more importantly when the co-employee, Sri. Madhukar who is the material witness is not examined, the charge against the petitioner cannot be held to be proved. From the enquiry report, it is clear that the appellant/respondent has examined only one witness i.e., MW1, who is Investigating Officer. No other witness to corroborate the evidence of Investigating Officer is examined in the enquiry to prove the charge against the petitioner. The nature of the charge is such that only on the evidence of Investigating Officer, the charge cannot be proved.

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9. The learned Single Judge, keeping in view the above aspects and after considering the entire material on record, has recorded the reasons for 3 definite conclusion as to how the charge is not proved against the petitioner. In the circumstance, we are of the considered view that the learned Single Judge has not committed any error which calls for interference.

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On the above basis, he submits that the petition is required to be allowed. The impugned order is required to be set-aside and the claim petition filed by the petitioner before the Labour Court is required to be allowed.

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Per contra, learned counsel for the respondent would submit that there is a past history of misconduct on part of the petitioner, there being as many as 33

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WP No. 39572 of 2018

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cases of misconduct and minor punishment which had been imposed on the petitioner. The Corporation has led the evidence of concerned witnesses, necessary documents have been made available which established the fabrication of the bus passes which were sufficient enough for the trial Court to have come to the conclusion that charges have been proved, therefore, she submits that this Court ought not to intercede in the matter and set aside the order passed.

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Heard Sri.L.Shekhar, learned counsel for the petitioner and Smt.H.R.Renuka, learned counsel for the respondent. Perused documents.

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A perusal of the order dated 4.04.2017 passed in ID No.33/2016 would indicate that the Prl. District Judge, Chikkaballapur had come to a conclusion that the domestic enquiry conducted by the RTC was not just, fair and proper and therefore, posted the matter for enquiry on issue No.2 raised therein i.e. Whether

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WP No. 39572 of 2018

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the respondent was justified in dismissing the petitioner from service of the respondent w.e.f. 5.11.2015?

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Thereafter it appears that the Presiding Officer was transferred and another Presiding officer was appointed. The new Presiding Officer vide order dated 29.06.2018 came to a conclusion that by order dated 4.4.2017 his predecessor had held the enquiry to be just and proper. On perusing the enquiry report he holds the enquiry to be just and proper and that the first party workman had admitted the enquiry proceedings. He has further given a finding that sufficient opportunity was given, due procedure had been followed and evidence on record indicated the allegations made against the workman was proved.

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I am of the considered opinion that this finding given by the Presiding Officer in his award dated 29.06.2018 is contrary to the orders passed on issue

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WP No. 39572 of 2018

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No.1 on 4.4.2017 by his predecessor. His

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predecessor having held that the enquiry was not just, fair and proper and posted the matter for enquiry on issue No.2, it was therefore required of the Presiding Officer to have examined the matter dehors the enquiry report which had already been held to be not just, fair and proper and independently come to a conclusion as to whether the charges issued to the petitioner workman had been proved or not. The Presiding officer has failed in his duty to do so rendering the award passed by him being required to be quashed.

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Though Sri.L.Shekhar, learned counsel for the petitioner would submit that on quashing the award, this Court ought to allow the claim filed by the workman, I am of the considered opinion that this Court cannot substitute itself for the Labour court and decide ID No.33/2016. The same would have to be decided by the said court in accordance with law

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WP No. 39572 of 2018

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after appreciating the evidence on record. In view thereof, I pass the following order:

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ORDER

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The petition is partly allowed. A certiorari is issued. The impugned award dated 29.06.2018 passed by the Prl. District Judge, Chikkaballapur in I.D. No.33/2016 at Annexure-A is quashed.

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The matter is remitted to the Court of District Judge, Chikkaballapur to consider afresh in terms of the observations made above and deliver its finding on issue No.2 framed therein.

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Since the order has been passed in the presence of both the counsel for the parties, parties shall be present before the said Court on 19.09.2022 without requirement of any further notice.

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Considering that the matter is of the year 2016, the said Court is directed to dispose of

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10 -

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WP No. 39572 of 2018

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the matter as expeditiously as possible at any

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rate within a period of six months from the

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date of receipt of this order.

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Sd/JUDGE

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List No.: 1 Sl No.: 14

N. Nagaraj v. the Divisional Controller

Case brief

What is this about?

What did the court decide?

N. Nagaraj v. the Divisional Controller

Case brief

What is this about?

What did the court decide?

What the court decided

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