Allowed

The Divisional Controller v. P Basha

Karnataka HC20 Dec 2023WP/15162/2023

Case brief

AI extract

What is this about?

The High Court quashed a Labour Court award that reinstated a K.S.R.T.C. conductor dismissed for non-issue of tickets. The Court held the dismissal was justified due to the gravity of the misconduct, the employee's history of offenses, and the corporation's duty, overriding the Labour Court's light-handed view.

What did the court decide?

The Labour Court award dated 25.03.2022 in I.D. No. 4/2020 was quashed, and the dismissal order dated 05.03.2020 was confirmed.

The Divisional Controller Vs P Basha — Labour and Industrial Disputes | Karnataka HC (2023)

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NC: 2023:KHC:46497 WP No. 15162 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI

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WRIT PETITION NO. 15162 OF 2023 (L-KSRTC)

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BETWEEN:

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THE DIVISIONAL CONTROLLER, K.S.R.T.C., CHIKKABALLAPUR DIVISION, CHIKKABALLAPUR, NOW REPRESENTED BY ITS CHIEF LAW OFFICER, K.H.ROAD, KSRTC CENTRAL OFFICE, BANGALORE - 560 027.

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…PETITIONER

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

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AND:

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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P.BASHA S/O PAKIRSABI, AGED ABOUT 53 YEARS, R/O PERESANDRA VILLAGE AND POST, MANDIKAL HOBLI, CHIKKABALLAPUR TALUK AND DISTRICT - 562 104.

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…RESPONDENT

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(SERVED AND UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 26 AND 227 OF THE CONSTITUTION OF INDIA SEEKING CERTAIN RELIEFS.

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NC: 2023:KHC:46497 WP No. 15162 of 2023

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THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Smt.H.R.Renuka., learned counsel for the petitioner has appeared in person.

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Emergent notice to respondent was ordered on 18.07.2023. A perusal of the postal shara depicts that the notice was returned with a shara "Addressee left the place". Thereafter, the petition was listed on 02.11.2023 and petitioner was permitted to take out notice to respondent through department. A perusal of the office note depicts that respondent is served through hand summons. The respondent has neither made efforts to engage any counsel nor conducted the case as party in person.

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The brief facts are these:

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The respondent was a Driver cum Conductor in the establishment of the Corporation. On 13.01.2019, he was on duty in the bus bearing No.F-993 that belonged to the Corporation that was plying on the route from Bengaluru to Gowribidanur. The bus came to be checked by the Checking

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Officials at Yelahanka stage point, it was found that there were 34+01+00 passengers in the bus. During the process of checking, it was found that the respondent had failed to issue tickets to a group of two passengers travelling from Mekri Circle to Gowribidanur and had failed to collect fare of Rs.71/(Rupees Seventy One only) each from them i.e., Rs.142/(Rupees One Hundred and Forty Two only).

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On the basis of the report submitted by the Checking officials, the respondent was issued with Articles of charge and he submitted his reply denying the charges. He was subjected to domestic inquiry as the disciplinary authority was of the opinion that his reply was not satisfactory. A detailed inquiry was held by providing sufficient opportunity to the respondent to defend his case. The inquiry officer submitted his findings holding that the charges are proved. The respondent was issued with second show cause notice along with the findings of the inquiry officer and also by notifying his past history of sixtysix cases. The respondent submitted his reply to the show cause notice. The disciplinary authority on examining the entire material on record, accepted the findings of the inquiry officer taking into consideration the grave misconduct of the workman

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NC: 2023:KHC:46497 WP No. 15162 of 2023

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coupled with past history of sixty-five cases, dismissed him from service vide order dated:05.03.2020.

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The respondent questioned the order of punishment by filing a claim petition under Section 10(4-A) R/w Section 2(A) of the Industrial Disputes Act, 1947 before the Prl. District and Sessions Judge, Chikkaballapur in I.D.No.4/2020. The Corporation filed its counter statement resisting the claim petition filed by the workman. The Labour Court held that the domestic inquiry conducted by the Corporation was fair and proper. The Labour Court vide award dated:25.03.2022 setaside the order of punishment and directed reinstatement of the workman with last drawn pay with continuity of service, without backwages, by withholding three ensuing annual increments with cumulative effect and all other consequential benefits. It is this award that is called into question in this Writ Petition on several grounds as set-out in the Memorandum of Writ Petition.

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Learned counsel for the petitioner has urged several contentions. Heard, the contentions urged on behalf of the petitioner and perused the Writ papers with utmost care.

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NC: 2023:KHC:46497 WP No. 15162 of 2023

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The point that requires consideration is whether the

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award of the Labour Court requires interference.

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The facts are sufficiently stated and do not require reiteration. Suffice it to note that the respondent came under a disciplinary inquiry proceedings for the act of misconduct and was visited with an order of punishment i.e., dismissed from service vide order dated:05.03.2020.

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The charge levelled against the workman was non-issue of tickets and non-collection of fare. Suffice it to note that the workman replied to the charge sheet. It is interesting to note the contents of the reply. The workman submitted a very peculiar reply to justify his act. He stated that the ticketless passengers were wearing headphone and were busy on mobile, hence, they did not purchase tickets. He sought to contend that the charge sheet was issued for the mistake of the passengers. I am unable to accept the said contention. I may venture to say that nobody would accept the explanation that was offered by the workman. The reason is quite simple. The respondent is an employee of the Corporation i.e., he is a Conductor and the only duty entrusted by the Corporation is to issue tickets and

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NC: 2023:KHC:46497 WP No. 15162 of 2023

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collect revenue. Even if the passengers were wearing headphone and were busy on mobile, a duty cast on the Conductor to see that he issues tickets and collect the fare.

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In order to justify his act, the workman has taken the stand as under:

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(a) During cross examination of the management witness, a suggestion was put by him that he had issued tickets to all the passengers and that penalty was collected from him by the Checking Officials and he did not commit any misconduct.

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(b) In defence statement, he sought to improve his version that the bus was checked at Stage point Yelahanka, the passengers boarded the bus at Yelahanka signal, he was about to issue tickets to them, the checking took place at Yelahanka stage, ticketless passengers paid penalty of Rs.1,000/- (Rupees One Thousand only), the incident occurred as the ticketless passengers boarded the bus at a point which was not a stage point.

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NC: 2023:KHC:46497 WP No. 15162 of 2023

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in addition he stated that though he asked the passengers to buy tickets, they did not purchase tickets.

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(d) In the claim statement, he improved his version by stating that he asked the passengers to purchase tickets, they replied that they would buy the tickets in due course, they did not show any interest in buying tickets.

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(e) In the deposition before the Labour Court, he reiterated the statement made in the claim statement. Further, in the examination in chief, he admitted that checking took place at Yelahanka stage, while denied the same in the cross examination.

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A perusal of the aforesaid explanations offered by the workman would show that he made inconsistent statement at each stage as regard to his defence. The inconsistent statement would establish that he suppressed the true facts. On the other hand, the Checking Officials checked the bus and found that the respondent had not issued tickets to two passengers and had not collected Rs.71/- (Rupees Seventy One only) each from them, the passengers had boarded the bus at Mekhri Circle, while the bus was checked at Yelahanka stage. It is relevant to

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note that though the bus had crossed about 9 kilometres from the place of boarding till place of checking, the respondent had neither issued nor collected fare from two passengers. There were only thirty-four passengers in the bus, hence, there was no difficulty for the Conductor to issue tickets. Irrespective of the number of passengers, the duty of the Conductor is to issue tickets and collect fare from the passengers. The respondent being a Conductor and an employee of a public Corporation, is required to discharge his duties diligently. He has acted carelessly.

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Furthermore, the explanation offered by the workman that the passengers were wearing headphone and were busy on mobile cannot be a reason to hold that it was not deliberate or intentional on the part of the respondent not to issue tickets and collect fare from the passengers. I may venture to say that the Labour Court has failed to understand the duty and functions of a Conductor and has viewed the process of checking in a light hearted manner. The Hon'ble Apex Court in RSRTC Vs. GHANASHYAM SHARMA reported in 2002 SCC (10) 330 , the decision by a larger Bench laid down the law as under:

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"when the main duty or function of the conductor is to issue tickets and collect fare and then deposit the same with the Road Transport Corporation and when a conductor fails to do so, then it will be misplaced sympathy to order his reinstatement instead of dismissal" .

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The Labour Court concluded that in the absence of clinching evidence, the vague report of the checking officials cannot be believed. This is untenable. The Court failed to appreciate the fact that the workman did not dispute the presence of two ticketless passengers. As already noted above, he had a peculiar explanation for non-issue of tickets i.e., the passengers did not show interest in buying the tickets as they were busy on their phone. At the cost of repetition, I would say that the Labour Court has viewed the matter in a light manner. By following the decision of GHANASHYAM SHARMA's case, the Apex Court in REGIONAL MANAGER, U.P.SRTC, ETAWAH AND OTHERS VS. HOTILAL AND ANOTHER

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reported in (2003) 3 SCC 605 has held that held that if the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be

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proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in a financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable.

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The finding of the Labour Court that the workman was not notified of his history sheet during the inquiry, that the Corporation had not followed the Circulars regarding notifying the workman of his past history every year is incorrect. The reason is apparent. The Labour Court has failed to notice that the workman was notified of his past history by way of second show cause notice and he replied to the same and did not dispute the past history in his reply statement. Furthermore, the disciplinary authority has taken into consideration the past conduct of the respondent while passing the order of dismissal. It is needless to observe that taking note of the past conduct is a mandate requirement as per Regulation 25 of the KSRTC (Conduct & Discipline) Regulations, 1971.

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Furthermore, the reliance placed on punishment orders inflicted on other workmen to plead discrimination on the part

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NC: 2023:KHC:46497 WP No. 15162 of 2023

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of the Corporation is also erroneous. The Apex Court in CIVIL APPEAL No .2707/2022 - ANIL KUMAR UPADHYAY Vs. DIRECTOR GENERAL, SSB and OTHERS decided on 20.04.2022 has held as under:

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"Even other wise, merely because one of the employees was inflicted with a lesser punishment cannot be a ground to hold the punishment imposed on an another employee as disproportionate, if in case of another employee higher punishment is warranted and inflicted by the disciplinary authority after due application of mind. There cannot be any negative discrimination."

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Reverting to the facts of the case, the workman was punished on sixty-five occasions. He was involved in eight cases even when the present case was pending inquiry. The workman despite providing opportunity to improve his conduct, failed to show any improvement in his conduct and involved in the present case, which is an outstanding red mark case. Therefore, the Labour Court is not justified in pardoning an habitual offender by setting aside the order of punishment. The charge that the respondent had not issued tickets and had not

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NC: 2023:KHC:46497 WP No. 15162 of 2023

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collected fare from the passengers stood established, it is a proved dishonest, therefore, this misconduct was sufficient to sustain the order of removal. Judged in the background of ETAWAH's case, the findings recorded by the Labour Court do not appear to be proper.

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The finding of the Labour Court that offence memo was issued by the checking officials without counting the cash is also untenable. The charge made against the respondent is that he has failed to collect fare of Rs.142/- (Rupees One Hundred and Forty Two only) from two passengers, therefore, counting of cash was not required in view of specific charge of noncollection of fare amount.

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The Labour Court placed reliance on Exs.W1 to W4 to come to a conclusion that the order of punishment is discriminatory in nature. This is erroneous. The Labour Court has failed to notice that there cannot be a similar yardstick in all cases of disciplinary matters. Each case differs as the misconduct also varies from case to case. It is perhaps well to observe that each case depends on the gravity of the misconduct coupled with the history of the worker.

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I may venture to say that the Labour Court has failed to have regard to relevant consideration and disregarded relevant matters. For the reasons stated above, the award passed by the Labour Court is liable to be set-aside. Accordingly, it is setaside.

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The Writ of Certiorari is ordered. The award dated:25.03.2022 passed by the Prl. District and Sessions Judge, Chikkaballapura in I.D.No.4/2020 is quashed. The order of dismissal dated:05.03.2020 is confirmed.

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9. As a result, the Writ Petition is allowed .

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In view of confirmation of the dismissal order, the interim order granted by this Court stands discharged and the pending interlocutory applications, if any are disposed of.

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Sd/JUDGE

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TKN/MRP List No.: 1 Sl No.: 8

The Divisional Controller v. P Basha

Case brief

What is this about?

What did the court decide?

The Divisional Controller v. P Basha

Case brief

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