Dismissed

D. T. Manjunath v. the Divisional Controller

Karnataka HC5 Jun 2023WP/55429/2018

Case brief

AI extract

What is this about?

In this writ petition, the High Court dismissed the challenge to a Labour Court award that reinstated a bus conductor but denied back wages and continuity of service due to his history of 22 prior defaults, distinguishing Gurpreeth Singh from J.K. Synthetics.

What did the court decide?

Writ petition dismissed; Labour Court award upheld with modification of punishment to reinstatement without back wages and no continuity of service.

D. T. Manjunath Vs the Divisional Controller — Pension and Retirement Benefits | Karnataka HC (2023)

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WP No. 55429 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI

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WRIT PETITION NO. 55429 OF 2018 (L-KSRTC)

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BETWEEN:

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D.T. MANJUNATH, S/O THIMMAPPA, AGE 45 YEARS, R/AT HIREGUTHI VILLAGE & POST, KUMTA TALUK, KARWAR DISTRICT - 581 343.

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…PETITIONER

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[BY SRI. L. SHEKAR, ADVOCATE (PH)]

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AND:

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THE DIVISIONAL CONTROLLER, K.S.R.T.C., MANGALORE DIVISION, MANGALORE-575 201.

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…RESPONDENT

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Digitally signed by GURURAJ D Location: High Court of Karnataka

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[BY Ms. H.R.RENUKA, ADVOCATE (PH)]

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THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 14.2.2018 OF ISSUE NO.1 VIDE ANNEXURE-A AND ALSO THE IMPUGNED AWARD DATED 21.03.2018 PASSED BY THE LEARNED PRESIDING OFFICER, LABOUR COURT D.K. MANGALORE, IN IDA NO.34/2017 VIDE ANNEXURE-B TO THE WRIT PETITION AND ETC.,

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THIS PETITION, COMING ON FOR DICTATING ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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WP No. 55429 of 2018

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ORDER

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Challenging award dated 21.03.2018 passed by Presiding

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Officer, Labour Court, Dakshina Kannada, Mangaluru, in I.D.A.no.34/2017, this writ petition is filed.

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Sri. L Shekar, learned counsel for petitioner submitted that while working as driver-cum-conductor in Bus belonging to KSRTC, plying from Bengaluru to Udupi and it was checked at Gubbi stage. It revealed that out of 18+00+00 passengers, he had failed to issue ticket for Rs.288/- to one passenger traveling from Bengaluru to Kadur. He was issued with offence memo, after collecting Rs.500/- as penalty from ticketless passenger.

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It was submitted that on said allegation, Articles of Charge was issued on 31.07.2014. Same were denied by petitioner. Without consideration, departmental enquiry was ordered. And though petitioner had participated in it and opposed charges, without proper enquiry, report upholding charges was submitted. Petitioner opposed findings in his representation filed after receipt of second showcause notice on 12.08.2015. But, disciplinary authority proceeded to pass order of dismissal from service on 22.09.2015, which was wholly

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WP No. 55429 of 2018

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unsustainable. Hence, petitioner filed claim petition under Section 2A(2) of Industrial Disputes Act, ('ID Act' for short) before Labour Court, Mangaluru in IDA no.34/2017.

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It was further submitted that in said proceeding, Labour Court held departmental enquiry as fair and proper. On victimization, it passed impugned award allowing claim petition in part setting aside order of dismissal and directing reinstatement of petitioner to his original post. But, while passing said award, entire back wages and consequential service benefits were denied and in addition there was order for reduction of basic pay by two incremental stages with cumulative effect as a measure of specific punishment which was excessively harsh and disproportionate.

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It was submitted that once order of termination was

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set aside with direction for reinstatement, denial of continuity of service and consequential benefits would not be justified and relied upon decision in Gurpreeth Singh Vs. State of Punjab & Ors¹ . . On above ground, sought for modification of award insofar as denial of above benefits.

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1 2002 (9) SCC 492

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WP No. 55429 of 2018

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On other hand, Smt.H.R.Renuka, learned counsel for respondent KSRTC submitted that upon in-depth examination of records, charge of non-issue-non-collection (NINC) was held proved against petitioner. Thereafter, while exercising power under Section 11(A) of ID Act, Labour Court had taken note of petitioner's default history of 22 cases wherein he was imposed with reformative punishment. It observed that petitioner had failed to show improvement. On such consideration, and as a measure of equity it had modified punishment by exercising discretion. It was therefore submitted that Hon'ble Supreme Court had held in J.K. Synthetics Limited v/s K.P.Agrawal and Another² , that practice of award of back-wages, continuity of service and consequential benefits as automatic or natural consequence of reinstatement was not justified and reinstatement should be prospective i.e. without continuity of services. Therefore, no interference was called for in this writ petition and sought for its dismissal.

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Heard learned counsel and perused writ petition records.

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2 2007 (2) SCC 433,

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WP No. 55429 of 2018

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From above submission, it is not in dispute that

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while on duty as conductor in KSRTC Bus, respondent workman had failed to issue ticket to one passenger traveling from Bengaluru to Kadur and therefore, petitioner had committed misconduct of NINC. It is also not in dispute that during departmental enquiry charge against petitioner was held proved which was affirmed by Labour Court, but there was interference only insofar as quantum of punishment. While petitioner contends that finding of Labour Court on charge being held proved was erroneous and unsustainable and therefore modification of punishment under impugned award was in any case excessive and disproportionate, but respondent contends that charge was held established upon exhaustive examination of records/evidence and there was no scope for reappreciation by High Court. It is also contended that merely on ground of order for reinstatement claim for backwages continuity of service and consequential benefits could not be claimed as matter of course.

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Insofar as charge, finding recorded by enquiry officer was after taking into account report of inspecting official and collection of penalty from ticketless passenger. It is further seen that during departmental enquiry, though petitioner was

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WP No. 55429 of 2018

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afforded opportunity, he failed to lead any evidence to substantiate his defence. Admittedly, petitioner had failed to follow 'issue and start' rule. Labour Court further observed that during cross-examination, petitioner attempted to take a different contention that passenger found traveling without ticket had infact lost it, which was contrary to it's pleading. Therefore, finding of enquiry officer about charge being proved was rightly upheld by Labour Court.

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Insofar as exercise of jurisdiction under Section 11A of ID Act, it is seen that Labour Court had taken note of 22 default cases to arrive at conclusion that order of punishment imposed was disproportionate. On said conclusion, it proceeded to modify order of punishment from dismissal from service with direction for reinstatement without back-wages and without consequential service benefits apart from withholding of two increments with cumulative effect.

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Petitioner's challenge is based mainly on ratio in Gurpreeth Singh 's case (supra). On perusal of facts of said case, it is seen that in workman's suit for declaring order of termination as null and void, trial Court dismissed suit. But first appellate Court reversed decree by directing reinstatement in service, but without back-wages. In second appeal preferred by

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7 - WP No. 55429 of 2018

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plaintiff - workman, High Court had further denied continuity of service while confirming judgment of first appellate Court. Under such circumstances, it was held that denial of continuity of service was unsustainable. But Hon'ble Supreme Court confirmed denial of backwages. It is seen that said decision was rendered in an appeal arising out of civil suit, wherein prayers sought are specific and discretion to modify relief was limited. Further, denial of continuity of service in workman - plaintiff's appeal was held illegal.

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Therefore, ratio in Gurpreeth Singh 's case (supra) is clearly distinguishable. In J.K.Synthetics Ltd. case (supra)

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one of specific questions of law framed for consideration was:

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" 3 (ii) When punishment of dismissal is substituted by a lesser punishment (stoppage of increments for two years), and consequently, employee is directed to be reinstated, whether employee is entitled to back-wages from date of termination to date of reinstatement."

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Further while answering said question, Hon'ble

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Supreme Court also observed that 'continuity of service' and 'consequential benefits' can be awarded only after application of judicious mind to facts and circumstances of the case.

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WP No. 55429 of 2018

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In instant case Labour Court, while exercising power under Section 11-A of ID Act has referred to service conduct of petitioner which involved 22 default cases. After considering same, it proceeded to impose alternative punishment by taking lenient view. Since denial of back-wages continuity of service and award of alternative punishment is on detailed consideration of facts and circumstances of case, no

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interference would be called for.

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Writ petition is, accordingly dismissed.

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Sd/JUDGE

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Grd

D. T. Manjunath v. the Divisional Controller

Case brief

What is this about?

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D. T. Manjunath v. the Divisional Controller

Case brief

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