Dismissed

Sri R. Biradar v. the Divisional Controller

Karnataka HC6 Dec 2023WP/59802/2014

Case brief

AI extract

What is this about?

In a writ petition against the dismissal of the petitioner from KSRTC services, the court examined allegations of procedural impropriety and perversity regarding the domestic inquiry. The court held the petitioner failed to examine himself as evidence and found the Labour Court's confirmation of innocence of perversity justified, dismissing the petition.

What did the court decide?

Writ Petition dismissed; no relief granted to the petitioner regarding his dismissal.

Sri R. Biradar Vs the Divisional Controller — Pension and Retirement Benefits | Karnataka HC (2023)

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1 - NC: 2023:KHC:44239 WP No. 59802 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI WRIT PETITION NO.59802 OF 2014 (L-KSRTC)

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BETWEEN:

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SRI R. BIRADAR S/O SRI APPA SAHEB, AGED ABOUT 40 YEARS, R/AT NO.2/1, SANJANA NILAYA, 24^TH CROSS, 1^ST MAIN ROAD, OPP. ALFA SCHOOL, MARUTHI NAGAR, YELAHANKA, BENGALURU - 560 064. (BY SRI.NAIK V.S., ADVOCATE)

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…PETITIONER

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AND:

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THE DIVISIONAL CONTROLLER BMTC, NORTH DIVISION, YESHWANTHAPURA, BANGALORE - 560 022.

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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

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…RESPONDENT

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS.

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

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NC: 2023:KHC:44239 WP No. 59802 of 2014

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ORDER

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Sri.V.S.Naik., learned counsel for petitioner and

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

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The brief facts are these:

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The petitioner was appointed as a Conductor during the year 1999 in the establishment of the Corporation. On 04.12.2011, the Checking squad checked the bus conducted by the petitioner and made false allegations. Based on the report submitted by the checking squad, the Corporation issued Articles of charge on 17.12.2011. On 21.12.2011, the petitioner submitted denial reply. On 24.01.2012, the respondent appointed the inquiry officer. On 06.08.2012, the inquiry officer submitted his findings holding that the petitioner is guilty of the charges. On 21.08.2012, the respondent issued show cause notice calling upon the petitioner to have his say on the report of the inquiry officer. On 01.10.2012, the petitioner submitted a detailed reply and requested the disciplinary authority to exonerate him from the charges. On 21.12.2012, he was dismissed from the services.

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NC: 2023:KHC:44239 WP No. 59802 of 2014

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The statutory appeal was filed by the petitioner and the same was rejected by the Appellate Authority. The petitioner raised an industrial dispute before the Prl. Labour Court, Bengaluru in I.D.No.19/2013. The Labour Court held that the inquiry conducted by the Corporation was fair and proper. The Labour Court vide award dated:26.07.2014 rejected the claim statement without granting any relief to the petitioner. 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 petitioner and the respondent have urged several contentions.

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Sri.V.S.Naik., learned counsel for the petitioner contends that the workman has appeared before the inquiry officer and he has furnished certain documents. The Corporation has not cross examined the workman. Learned counsel contended that the defence statement is the defence evidence of the workman, hence the Corporation was required to cross examine him. It is also contended that the inquiry officer was required to consider the oral and documentary evidence on record, he has failed to consider the same. Hence,

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the inquiry officer's finding that the charges are proved are untenable. He argued by saying that a specific contention was raised about the perversity, but the Labour Court has not given finding regarding the perversity of the findings of the inquiry officer. Learned counsel vehemently contended that referring to the history sheet is permissible, only when the Labour Court holds that there is no perversity in the findings of the inquiry officer. Lastly, he submits that the award of the Labour Court is unsustainable in law and the same is liable to be set-aside and the matter requires a remand.

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Smt.H.R.Renuka., learned counsel appearing on behalf of the Corporation in presenting her arguments strenuously urged that the delinquent submitted only the defence statement and not defence evidence. In the defence statement, the word evidence is struck off. She drew the attention of the Court to Ex.M.20 and also to Regulations. It is argued on behalf of the Corporation that the Labour Court extenso referred to the material on record and justified in passing the award and the petitioner has not made out any grounds to interfere with the award of the Labour Court. The

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5 - NC: 2023:KHC:44239 WP No. 59802 of 2014

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Writ Petition is devoid of merits and the same may be dismissed.

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Heard, the contentions urged on behalf of the respective parties and perused the Writ papers and the records with utmost care.

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The facts are sufficiently stated and do not require

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reiteration.

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The point that requires consideration is whether the award of the Labour Court requires interference.

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Since a good deal of argument is addressed about the perversity of the findings of the inquiry officer, let me consider the procedure of disciplinary action.

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There is no procedure prescribed for disciplinary action, either in the Industrial Disputes Act, 1947 or in the Rules made thereunder, which should be complied with before inflicting disciplinary punishment upon an industrial employee. Neither the requirements of the procedure which a Trial Court adopts nor the procedural safeguards crystallised under Article 311 of the Constitution of India can be said to be strictly binding on

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the employer for his taking disciplinary action against an industrial worker. Nevertheless, the infusion of legal formalism into the law of work discipline by industrial adjudication has made industrial employers aware of the restriction of law on their common law right to 'hire and fire'. This has also encouraged the workmen to challenge any unlawful act on the part of an employer in imposing a disciplinary action. The rule that the case should be 'heard in a judicial spirit and accordance with the principles of substantial justice', has been infused as an essential concomitant of disciplinary procedure, even though there is no obligation to adopt the regular forms of legal procedure. In all cases of detrimental action taken against a worker for misconduct, the employer must establish whether the action was taken for 'just and sufficient reasons'. An industrial worker is always entitled to question the propriety and justice of a punitive or detrimental action taken against him.

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Justice Das Gupta in SUR ENAMEL 's case observed that

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an inquiry cannot be said to have been properly held unless:

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(1) The employee proceeded has been informed clearly of the charges levelled against him;

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NC: 2023:KHC:44239 WP No. 59802 of 2014

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(2) The witnesses are examined - ordinarily in the presence of the employee - in respect of the charge;

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(3) The employee is given a fair opportunity to cross-examine witnesses;

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(4) He is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter; and

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(5) The inquiry officer records his findings with reasons for the same in his report.

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In this background, let me see what facts I have here. The delinquent came under disciplinary proceedings for an act of misconduct. According to the petitioner, the proceedings went well till the examination of the Management witnesses. An attempt is by the petitioner to contend that he has examined himself in his defence. However, the Corporation did not crossexamine him. He placed reliance on Ex.M.20 to contend that it is his defence evidence. It is contended on behalf of the Corporation that the petitioner did not examine himself before the inquiry officer, hence there was no necessity to crossexamine him.

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NC: 2023:KHC:44239 WP No. 59802 of 2014

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Ex.M.20 is the defence statement. The beginning portion

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of the defence statement as found in Ex.M.20 is extracted as under:

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«ZÁgÀuÁ¢üPÁjUÀ¼À ªÀÄÄAzÉ ¥ÀæPÀgÀt ¸ÀASÉå: PÁ 10/5175 ¨ÉAUÀ¼ÀÆgÀÄ ªÀÄºÁ£ÀUÀgÀ ¸ÁjUÉ ¸ÀA¸ÉÜ PÉÃAzÀæ PÀbÉÃj ¨ÉAUÀ¼ÀÆgÀÄ.

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D¥Á¢vÀ: Dgï. ©gÁzÀgï ¤ªÁðºÀPÀgÀªÀgÀÄ ¸À°è¸ÀÄwÛgÀÄªÀ ¸ÀégÀPÀëuÁvÀäPÀ ºÉÃ½PÉ (ªÀÄvÀÄÛ ¸ÁPÀëöå) (as found in original of Ex.M.20) sd/-

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A perusal of the same i.e., Ex.M.20 reveals that it is a defence statement and not a chief examination and the word evidence is struck off. Hence, it can be safely concluded that the workman has not examined himself and therefore, the contention that the Corporation has not cross-examined him must necessarily fail.

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In the present case, the industrial employer i.e., the Corporation is governed by rules regarding holding of domestic inquiries.

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Regulation 23(16). When the case of the Disciplinary Authority is closed, the Corporation servant shall be required to state his defense, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Corporation servant shall be required to sign the record. In either case a

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copy of the statement of defence shall be given to the Presenting Officer, if any appointed.

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(17). The evidence on behalf of the Corporation servant shall then be produced. The Corporation servant may examine himself in his own behalf if he so prefers. The witnesses produced by the Corporation servant shall then be examined and shall be liable to cross-examination, re-examination and examination by the Inquiring Authority according to the provisions applicable to the witnesses for the Disciplinary Authority.

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xxxx

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(19). The Inquiring Authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, appointed, and the Corporation servant or permit them to file written briefs of their respective cases, if they so desire.

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Regulation 23(16) of KSRTC (C & D) Regulations deals with evidence. There is compliance with Regulation 23(16) and 23(19) and non-compliance with Regulation 23(17).

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The inquiry officer referred to the material on record and submitted his findings. The workman did not examine in his defence.

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Next, let me consider about the perversity. Ordinarily, perversity vitiates disciplinary proceedings. There is a two-fold

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test of the perversity of a finding. The first test is that the finding is not supported by any legal evidence at all and the second is that based on the material on the record, no reasonable person could have arrived at the finding complained of. In each of these cases, the findings would be treated as perverse. A finding recorded in a domestic inquiry can be characterized as perverse only if it is shown that such a finding is not supported by any evidence at all or is entirely opposed to the whole of evidence adduced before it or no reasonable person could have come to the finding based on the evidence on the record. In other words, an industrial tribunal would not be justified in characterizing the finding recorded in the domestic inquiry as perverse unless it can be shown that such a finding is not supported by any evidence or is entirely opposed to the whole body of evidence adduced before it. In the present case, the petitioner contends about perversity since he has not been cross-examined. As already noted above, he has not examined himself in his defence, therefore, he cannot contend that the findings of the inquiry officer are perverse. The inquiry officer relied on the material evidence on record and then concluded that the charges were proved. In such a situation,

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the findings cannot be termed as perverse. The Labour Court found that the conclusion of the inquiry officer is reasonable, hence, it has not interfered with a decision. Therefore, the contention about perversity must also fail. To conclude I can say only this much that the Labour Court extenso referred to the material on record and rightly rejected the claim petition. I find no grounds to interfere with the award of the Labour Court. For the reasons stated above, the Writ Petition is liable to be dismissed.

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As a result, the Writ Petition is dismissed .

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Sd/JUDGE

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TKN List No.: 1 Sl No.: 29

Sri R. Biradar v. the Divisional Controller

Case brief

What is this about?

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Sri R. Biradar v. the Divisional Controller

Case brief

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